EXHIBIT 10.10
ADMINISTRATION AGREEMENT
This ADMINISTRATION AGREEMENT dated as of February 23, 2005 (as amended
from time to time, the "Agreement"), among THE NATIONAL COLLEGIATE STUDENT LOAN
TRUST 2005-1, a Delaware statutory trust (the "ISSUER"), DELAWARE TRUST COMPANY,
NATIONAL ASSOCIATION, a national banking association, not in its individual
capacity but solely as Owner Trustee (the "OWNER TRUSTEE"), U.S. BANK NATIONAL
ASSOCIATION, a national banking association, both in its capacity as trustee
under the Indenture (hereinafter defined) (the "INDENTURE TRUSTEE") and as
grantor trustee under the Grantor Trust Agreement (hereinafter defined) (the
"GRANTOR TRUSTEE"), THE NATIONAL COLLEGIATE FUNDING LLC, a Delaware limited
liability company (the "DEPOSITOR") and FIRST MARBLEHEAD DATA SERVICES, INC., a
Massachusetts corporation (the "ADMINISTRATOR").
WHEREAS, the Issuer is issuing its (a) Student Loan Asset Backed Notes
(the "NOTES") pursuant to the Indenture dated as of February 1, 2005 (the
"INDENTURE"), between the Issuer and the Indenture Trustee, and (b) its trust
certificates (the "TRUST CERTIFICATES") pursuant to the Trust Agreement dated as
of February 23, 2005 (the "TRUST AGREEMENT") among the Owner Trustee, The
National Collegiate Funding LLC and The Education Resources Institute, Inc.
(together with its successors in interest, the "OWNERS").
WHEREAS, NCF GRANTOR TRUST 2005-1, a New York grantor trust (the
"GRANTOR TRUST") is issuing its grantor trust certificates (the "CERTIFICATES")
pursuant to the Grantor Trust Agreement dated as of February 23, 2005 (the
"GRANTOR TRUST AGREEMENT") between the Grantor Trustee and Depositor.
Capitalized terms used and not otherwise defined herein shall have the meanings
assigned to such terms in the Trust Agreement, the Grantor Trust Agreement or
the Indenture (the Trust Agreement, the Grantor Trust Agreement and the
Indenture are referred to collectively herein as the "BASIC DOCUMENTS");
WHEREAS, pursuant to the Basic Documents, the Issuer, the Owner
Trustee, the Depositor and the Grantor Trustee are required to perform certain
duties in connection with (a) the Student Loans and other collateral pledged
pursuant to the Indenture (the "COLLATERAL"), (b) the Notes, (c) the Trust
Certificates, (d) the Grantor Trust Agreement and (e) the Certificates;
WHEREAS, the Issuer, the Owner Trustee, the Depositor and the Grantor
Trustee desire to have the Administrator perform certain of the duties of the
Issuer and the Grantor Trust referred to in the Basic Documents and any other
documents signed by the Owner Trustee on behalf of the Issuer (collectively, the
"TRUST RELATED AGREEMENTS") and by the Grantor Trustee on behalf of the Grantor
Trust (collectively, the "GRANTOR TRUST RELATED AGREEMENTS") and to provide such
additional services consistent with the terms of this Agreement, the Trust
Related Agreements and the Grantor Trust Related Agreements as the Issuer, the
Owner Trustee, the Depositor and the Grantor Trustee may from time to time
request; and
WHEREAS, the Administrator has the capacity to provide the services
required hereby and is willing to perform such services for the Issuer, the
Owner Trustee, the Depositor and the Grantor Trustee on the terms set forth
herein;
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, and other good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the parties agree as follows:
1. DUTIES OF THE ADMINISTRATOR.
(a) DUTIES WITH RESPECT TO THE TRUST RELATED AGREEMENTS.
(i) The Administrator agrees to perform all its duties as
Administrator and the duties of the Issuer under the Trust Related Agreements.
In addition, the Administrator shall consult with the Owner Trustee regarding
the duties of the Issuer under the Trust Related Agreements. The Administrator
shall monitor the performance of the Issuer and shall advise the Owner Trustee
when action is necessary to comply with the Issuer's duties under the Trust
Related Agreements. The Administrator shall prepare for execution by the Issuer,
or shall cause the preparation by other appropriate persons or entities of, all
such documents, reports, filings, instruments, certificates and opinions that it
shall be the duty of the Issuer to prepare, file or deliver pursuant to the
Trust Related Agreements. In furtherance of the foregoing, the Administrator
shall take all appropriate action that is the duty of the Issuer to take
pursuant to the Trust Related Agreements including, without limitation, such of
the foregoing as are required with respect to the following matters under the
Indenture:
(A) The direction to the Indenture Trustee by
Issuer Order to deposit moneys with Paying Agents, if any, other than the
Indenture Trustee;
(B) The preparation and delivery of notice to
the Noteholders of the removal of the Indenture Trustee and the appointment of a
successor Indenture Trustee;
(C) The preparation of an Issuer Order and
Officer's Certificate and the obtaining of an Opinion of Counsel, if necessary,
for the release of property of the Indenture Trust Estate;
(D) The preparation of Issuer Requests and the
obtaining of Opinions of Counsel with respect to the execution of amendments to
the Indenture and the Trust Agreement and the mailing to the Noteholders of
notices with respect to such amendments;
(E) The payment of all expenses in connection
with the issuance of the Notes;
(F) Taking all actions on behalf of the Issuer
necessary under the XXXX Guarantee Agreements; and
(G) Providing instructions to the Indenture
Trustee as required by Section 8.02(d) of the Indenture.
(ii) The Administrator will:
(A) Indemnify the Indenture Trustee and its
agents for, and hold them harmless against, any losses, liability or expense,
including reasonable attorneys' fees and
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expenses, incurred without willful misconduct, negligence or bad faith on their
part, arising out of the willful misconduct, negligence or bad faith of the
Administrator in the performance of the Administrator's duties contemplated by
this Agreement; and
(B) Indemnify the Issuer and the Owner Trustee
and their respective agents for, and hold them harmless against, any losses,
liability or expense, including reasonable attorneys fees' and expenses,
incurred without willful misconduct, negligence or bad faith on their part,
arising out of the willful misconduct, negligence or bad faith of the
Administrator in the performance of the Administrator's duties contemplated by
this Agreement;
PROVIDED, HOWEVER, that the Administrator shall not be required to indemnify the
Indenture Trustee, the Issuer or the Owner Trustee pursuant to Section 1(a)
(ii)(A) or (B) of this Agreement so long as the Administrator has acted pursuant
to the instructions of the Owner Trustee or the Owners in accordance with
Section 1(d) of this Agreement; and
(C) Pay to the Owner Trustee its fees and
expenses as are set forth in section 10.01 of the Trust Agreement.
(b) DUTIES WITH RESPECT TO THE GRANTOR TRUST RELATED AGREEMENTS.
(A) The Administrator agrees to perform all its
duties as Administrator and the duties of the Depositor under the Grantor Trust
Related Agreements. In addition, the Administrator shall consult with the
Grantor Trustee regarding the duties of the Depositor under the Grantor Trust
Related Agreements. The Administrator shall monitor the performance of the
Grantor Trust and shall advise the Grantor Trustee when action is necessary to
comply with the Depositor's duties under the Grantor Trust Related Agreements.
The Administrator shall prepare for execution by the Depositor or the Grantor
Trustee, or shall cause the preparation by other appropriate persons or entities
of, all such documents, reports, filings, instruments, certificates and opinions
that it shall be the duty of the Depositor to prepare, file or deliver pursuant
to the Grantor Trust Related Agreements. In furtherance of the foregoing, the
Administrator shall take all appropriate action that is the duty of the
Depositor to take pursuant to the Grantor Trust Related Agreements.
(ii) The Administrator will:
(A) Indemnify the Grantor Trustee and its agents
for, and hold them harmless against, any losses, liability or expense, including
reasonable attorneys' fees and expenses, incurred without willful misconduct,
negligence or bad faith on their part, arising out of the willful misconduct,
negligence or bad faith of the Administrator in the performance of the
Administrator's duties contemplated by this Agreement; and
(B) Indemnify the Depositor and its agents for,
and hold them harmless against, any losses, liability or expense, including
reasonable attorneys' fees and expenses, incurred without willful misconduct,
negligence or bad faith on their part, arising out of the willful misconduct,
negligence or bad faith of the Administrator in the performance of the
Administrator's duties contemplated by this Agreement;
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PROVIDED, HOWEVER, that the Administrator shall not be required to indemnify the
Grantor Trustee, or the Depositor pursuant to Section 1(b) (ii)(A) or (B) of
this Agreement so long as the Administrator has acted pursuant to the
instructions of the Grantor Trustee in accordance with Subsection 1(d) of this
Agreement; and
(C) Pay to the Grantor Trustee its fees and
expenses.
(c) ADDITIONAL DUTIES.
(i) In addition to the duties of the Administrator set
forth above, the Administrator shall perform, or cause to be performed, its
duties and obligations and the duties and obligations of the Owner Trustee on
behalf of the Issuer under the Indenture and the Trust Agreement and the Grantor
Trustee on behalf of the Depositor under the Grantor Trust Agreement, including,
without limitation, those duties and obligations set forth on SCHEDULE A hereto.
In furtherance thereof, the Issuer and the Depositor shall execute and deliver
to the Administrator and to each successor Administrator appointed pursuant to
the terms hereof, one or more powers of attorney substantially in the form of
EXHIBIT A and EXHIBIT B hereto respectively, appointing the Administrator the
attorney-in-fact of the Issuer and the Depositor, respectively, for the purpose
of executing on behalf of the Issuer and the Depositor (with respect to the
Grantor Trust Related Agreements) all such documents, reports, filings,
instruments, certificates and opinions. Subject to Section 4 of this Agreement,
and in accordance with the directions of the Issuer, the Depositor, the Grantor
Trustee and the Owner Trustee, the Administrator shall administer, perform or
supervise the performance of such other activities in connection with the
Collateral (including the Trust Related Agreements and the Grantor Trust Related
Agreements) as are not covered by any of the foregoing provisions and as are
expressly requested by the Issuer, the Depositor, the Grantor Trustee, the
Indenture Trustee or the Owner Trustee and are reasonably within the capability
of the Administrator. The Administrator agrees to perform such obligations and
deliver such notices as are specified as to be performed or delivered by the
Administrator under the Indenture, the Grantor Trust Agreement and the Trust
Agreement.
(ii) In carrying out the foregoing duties or any of its
other obligations under this Agreement, the Administrator may enter into
transactions or otherwise deal with any of its affiliates; PROVIDED, HOWEVER,
that the terms of any such transactions or dealings shall be in accordance with
any directions received from the Issuer, the Indenture Trustee, the Grantor
Trustee or the Owner Trustee, and shall be, in the Administrator's opinion, no
less favorable to the Issuer than would be available from unaffiliated parties.
(iii) In carrying out any of its obligations under this
Agreement, the Administrator may act either directly or through agents,
attorneys, accountants, independent contractors and auditors and enter into
agreements with any of them.
(iv) In carrying out its duties under this Agreement with
respect to delinquent or defaulted Student Loans, the Administrator may retain
and employ agents to collect on such Student Loans and to commence any actions
or proceedings the agents deem necessary in connection with such collection
efforts on such Student Loans.
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(v) The Administrator shall cause a nationally recognized
independent public accounting firm to conduct an annual audit of the Financed
Student Loans owned by the Issuer in accordance with procedures acceptable to
the Rating Agencies and shall provide the Rating Agencies with a copy of the
audit report.
(d) NON-MINISTERIAL MATTERS.
(i) With respect to matters that in the reasonable
judgment of the Administrator are non-ministerial, the Administrator shall not
be under any obligation to take any action, and in any event shall not take any
action, unless the Administrator shall have received instructions from the
Indenture Trustee, in accordance with the Indenture, from the Owner Trustee or
the Owners, in accordance with the Trust Agreement or from the Grantor Trustee
in accordance with the Grantor Trust Agreement. For the purpose of the preceding
sentence, "non-ministerial matters" shall include, without limitation:
(A) The amendment of or any supplement to the
Trust Related Agreements or the Grantor Trust Related Agreements;
(B) The initiation of any claim or lawsuit by
the Issuer and the compromise of any action, claim or lawsuit brought by or
against the Issuer or the Grantor Trust, except for claims or lawsuits initiated
in the ordinary course of business by the Issuer or the Grantor Trust or their
respective agents or nominees for the collection of the Student Loans owned by
the Issuer;
(C) The appointment of successor administrators
and successor indenture trustees pursuant to the Indenture, or the consent to
the assignment by the Administrator or Indenture Trustee of its obligations
under the Indenture;
(D) The appointment of successor administrators
and successor grantor trustees pursuant to the Grantor Trust Agreement, or the
consent to the assignment by the Administrator or Grantor Trustee of its
obligations under the Grantor Trust Agreement; and
(E) The removal of the Indenture Trustee or the
Grantor Trustee.
(ii) Notwithstanding anything to the contrary in this
Agreement, the Administrator shall not be obligated to, and shall not (A) make
any payments to the Noteholders under the Trust Related Agreements, (B) make any
payments to the holders of the Certificates (the "CERTIFICATEHOLDERS") under the
Grantor Trust Related Agreements, (C) sell the Collateral pursuant to the
Indenture or (D) take any action that the Issuer directs the Administrator not
to take on its behalf.
(e) ACTIONS ON BEHALF OF THE OWNERS. Pursuant to Section 4.05 of
the Trust Agreement, each Owner has appointed the Administrator as its true and
lawful attorney-in-fact with respect to certain matters described in such
Section 4.05.
2. RECORDS. The Administrator shall maintain appropriate books of
account and records relating to services performed hereunder, which books of
account and records shall be
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accessible for inspection by the Issuer, the Indenture Trustee, the Grantor
Trustee, the Noteholders, the Certificateholders and the Owners at any time
during normal business hours.
3. COMPENSATION. As compensation for the performance of the
Administrator's obligations under this Agreement and as reimbursement for its
expenses related thereto, the Administrator shall be entitled to:
(a) A fee (the "ADMINISTRATION FEE") payable on each Distribution
Date at a rate equal to 1/12 of 0.05% of the aggregate outstanding principal
balance of the Financed Student Loans owned by the Issuer as of the related
Determination Date for the prior Distribution Date (and in the case of the
payment of the Administration Fee on the first Distribution Date as of the
Cutoff Date); provided that the Administration Fee shall be no less than $20,000
per annum;
(b) Reimbursement for the following expenses, which expenses shall
not exceed $100,000 in the aggregate per annum:
(i) Annual audits of the Servicers pursuant to Section
10.02 of the Indenture;
(ii) Payments to the Servicers for borrower privacy policy
notices as required by the Xxxxx-Xxxxx-Xxxxxx Act; and
(iii) Any other expenses of the Issuer or the Grantor
Trust.
The payment of the foregoing fees and expenses shall be solely an obligation of
the Issuer.
4. ADDITIONAL INFORMATION TO BE FURNISHED. The Administrator
shall furnish to the Issuer, the Noteholders and the Certificateholders from
time to time such additional information regarding the Collateral as the Issuer,
the Noteholders and the Certificateholders shall reasonably request.
5. INDEPENDENCE OF THE ADMINISTRATOR. For all purposes of this
Agreement, the Administrator shall be an independent contractor and shall not be
subject to the supervision of the Issuer, the Grantor Trustee or the Owner
Trustee with respect to the manner in which it accomplishes the performance of
its obligations hereunder. Unless expressly authorized by the Issuer or the
Grantor Trustee, the Administrator shall have no authority to act for or
represent the Issuer, the Owner Trustee or the Grantor Trustee, respectively, in
any way and shall not otherwise be deemed an agent of the Issuer, the Grantor
Trustee or the Owner Trustee.
6. NO JOINT VENTURE. Nothing contained in this Agreement (i)
shall constitute the Administrator and any of the Issuer, the Grantor Trustee,
the Owner Trustee or any Owner as members of any partnership, joint venture,
association, syndicate, unincorporated business or other separate entity, (ii)
shall be construed to impose any liability as such on any of them or (iii) shall
be deemed to confer on any of them any express, implied or apparent authority to
incur any obligation or liability on behalf of the others.
7. OTHER ACTIVITIES OF THE ADMINISTRATOR. Nothing herein shall
prevent the Administrator or its Affiliates from engaging in other businesses
or, in its or their sole discretion, from acting in a similar capacity as an
administrator for any other person or entity even though
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such person or entity may engage in business activities similar to those of the
Issuer, the Owner Trustee, the Grantor Trustee or the Indenture Trustee.
8. TERM OF AGREEMENT; RESIGNATION AND REMOVAL OF ADMINISTRATOR.
(a) This Agreement shall continue in force until the dissolution
of the Issuer, upon which event this Agreement shall automatically terminate.
(b) Subject to Section 8(e) of this Agreement, the Administrator
may resign its duties hereunder by providing the Issuer, the Noteholders, the
Certificateholders, the Grantor Trustee and the Indenture Trustee with at least
60 days' prior written notice.
(c) Subject to Section 8(e) of this Agreement, the Indenture
Trustee, at the direction of certain Noteholders as required by the Indenture,
may remove the Administrator without cause by providing the Administrator with
at least 60 days' prior written notice.
(d) Subject to Section 8(e) of this Agreement, at the option of
the Indenture Trustee, at the direction of certain Noteholders as required by
the Indenture, the Administrator may be removed immediately upon written notice
of termination from the Issuer to the Administrator if any of the following
events shall occur:
(i) The Administrator shall default in the performance of
any of its duties under this Agreement and, after notice of such default, shall
not cure such default within ten days (or, if such default cannot be cured in
such time, shall not give within ten days such assurance of cure as shall be
reasonably satisfactory to the Issuer);
(ii) A court having jurisdiction in the premises shall
enter a decree or order for relief, and such decree or order shall not have been
vacated within 60 days, in respect of the Administrator in any involuntary case
under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect or appoint a receiver, liquidator, assignee, custodian,
trustee, sequestrator or similar official for the Administrator or any
substantial part of its property or order the winding-up or liquidation of its
affairs; or
(iii) The Administrator shall commence a voluntary case
under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, shall consent to the entry of an order for relief in an
involuntary case under any such law, or shall consent to the appointment of a
receiver, liquidator, assignee, trustee, custodian, sequestrator or similar
official for the Administrator or any substantial part of its property, shall
consent to the taking of possession by any such official of any substantial part
of its property, shall make any general assignment for the benefit of creditors
or shall fail generally to pay its debts as they become due.
The Administrator agrees that if any of the events
specified in clauses (ii) or (iii) of this Section shall occur, it shall give
written notice thereof to the Owner Trustee, the Noteholders, the
Certificateholders, the Grantor Trustee and the Indenture Trustee within two
Business Days after the happening of such event.
(e) No resignation or removal of the Administrator pursuant to
this Section shall be effective until (i) a successor Administrator shall have
been appointed by the Issuer (with the
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consent of the Owner Trustee pursuant to Section 12 of this Agreement) and (ii)
such successor Administrator shall have agreed in writing to be bound by the
terms of this Agreement in the same manner as the Administrator is bound
hereunder.
(f) The appointment of any successor Administrator shall be
effective only after each Rating Agency, after having been given 10 days' prior
notice of such proposed appointment, shall have declared in writing that such
appointment will not result in a reduction or withdrawal of the then current
rating of the Notes or the Certificates.
(g) Concurrently with the execution of this Agreement, the parties
hereto shall enter into a Back-up Administration Agreement (the "BACK-UP
AGREEMENT') pursuant to which U.S. Bank National Association will perform
certain duties of the Administrator in accordance with this Agreement in the
event that the Administrator is terminated under this Section 8.
9. ACTION UPON TERMINATION, RESIGNATION OR REMOVAL. Promptly upon
the effective date of termination of this Agreement pursuant to Section 8(a) of
this Agreement or the resignation or removal of the Administrator pursuant to
Section 8(b) or (c) of this Agreement, respectively, the Administrator shall be
entitled to be paid all fees and reimbursable expenses accruing to it to the
date of such termination, resignation or removal. The Administrator shall
forthwith upon such termination pursuant to Section 8(a) of this Agreement
deliver to the Issuer or Grantor Trustee, as appropriate, all property and
documents of or relating to the Collateral then in the custody of the
Administrator. In the event of the resignation or removal of the Administrator
pursuant to Section 8(b) or (c) of this Agreement, respectively, the
Administrator shall cooperate with the Issuer and the Grantor Trustee and take
all reasonable steps requested to assist the Issuer and the Grantor Trustee in
making an orderly transfer of the duties of the Administrator.
10. NOTICES. Any notice, report or other communication given
hereunder shall be in writing and addressed as follows:
(a) If to the Issuer, to:
The National Collegiate Student Loan Trust 2005-1
c/o Delaware Trust Company, National Association,
as Owner Trustee
000 Xxxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxxxxx X. Xxxxxxx
(b) If to the Administrator, to:
First Marblehead Data Services, Inc.
000 Xxxx Xxxxxx
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
(c) If to the Indenture Trustee, to:
U.S. Bank National Association Corporate Trust
Services-SFS Xxx Xxxxxxx Xxxxxx, 0xx Xxxxx Xxxxxx,
Xxxxxxxxxxxxx 00000 Attention: Xx. Xxxxxx X. Xxxxxxx
(d) If to the Owner Trustee, to:
Delaware Trust Company, National Association,
as Owner Trustee
000 Xxxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxxxxx X. Xxxxxxx
(e) If to the Grantor Trustee, to:
U.S. Bank National Association Corporate Trust
Services-SFS Xxx Xxxxxxx Xxxxxx, 0xx Xxxxx Xxxxxx,
Xxxxxxxxxxxxx 00000 Attention: Xx. Xxxxxx X. Xxxxxxx
(f) If to the Depositor, to:
The National Collegiate Funding LLC
c/o First Marblehead Corporation
The Prudential Tower
000 Xxxxxxxx Xxxxxx - 00xx Xxxxx
Xxxxxx, XX 00000-0000
Attention: Xx. Xxxxxxx X. Xxxxxxx
or to such other address as any party shall have provided to the other parties
in writing. Any notice required to be in writing hereunder shall be deemed given
if such notice is mailed by certified mail, postage prepaid, or hand-delivered
to the address of such party as provided above.
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11. AMENDMENTS.
(a) This Agreement may be amended from time to time by the parties
hereto as specified in this Section, provided that any amendment be accompanied
by the written consent of the Owner Trustee, the Noteholders and the
Certificateholders and an Opinion of Counsel to the Indenture Trustee, the
Grantor Trustee and the Owner Trustee to the effect that such amendment complies
with the provisions of this Section.
(b) If the purpose of the amendment (as detailed therein) is to
correct any mistake, eliminate any inconsistency, cure any ambiguity or deal
with any matter not covered (i.e., to give effect to the intent of the parties
and, if applicable, to the expectations of the Noteholders and
Certificateholders), it shall not be necessary to obtain the consent of the
Noteholders or Certificateholders, but the Indenture Trustee and the Grantor
Trustee shall be furnished with a letter from each Rating Agency that the
amendment will not result in the downgrading or withdrawal of the rating then
assigned to any Note or Certificate.
(c) If the purpose of the amendment is to prevent the imposition
of any federal or state taxes at any time that any Note is outstanding (i.e.
technical in nature), it shall not be necessary to obtain the consent of any
Noteholder or Certificateholder, but the Indenture Trustee, the Grantor Trustee,
the Owner Trustee and the Administrative Agent shall be furnished with an
Opinion of Counsel from counsel to the Issuer that such amendment is necessary
or helpful to prevent the imposition of such taxes and is not materially adverse
to the Noteholders or Certificateholders.
(d) If the purpose of the amendment is to add or eliminate or
change any provision of the Agreement other than as contemplated in (b) and (c)
above, the amendment shall require the consent of each Rating Agency, certain
Noteholders as required by the Indenture and certain Certificateholders as
required by the Grantor Trust Agreement; PROVIDED, HOWEVER, that no such
amendment shall reduce in any manner the amount of, or delay the timing of,
payments received that are required to be distributed on the Notes without the
consent of certain Noteholders as required by the Indenture or on the
Certificates without the consent of certain Certificateholders as required by
the Grantor Trust Agreement.
(e) It shall not be necessary for the consent of a Rating Agency
to approve the particular form of any proposed amendment, but it shall be
sufficient if such consent approves the substance thereof.
(f) This Section 11 shall not apply to the execution of the
Back-up Agreement by the parties hereto.
12. SUCCESSORS AND ASSIGNS. This Agreement may not be assigned by
the Administrator unless such assignment is previously consented to in writing
by the Issuer, the Owner Trustee, certain Noteholders as required by the
Indenture, certain Certificateholders as required by the Grantor Trust
Agreement, the Grantor Trustee and the Indenture Trustee and unless each Rating
Agency, after having been given 10 days' prior notice of such assignment, shall
have declared in writing that such assignment will not result in a reduction or
withdrawal of the then current rating of the Notes or Certificates. An
assignment with such consent and
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satisfaction, if accepted by the assignee, shall bind the assignee hereunder in
the same manner as the Administrator is bound hereunder. Notwithstanding the
foregoing, this Agreement may be assigned by the Administrator, without the
consent of the Issuer, the Depositor or the Owner Trustee, to a corporation or
other organization that is a successor (by merger, consolidation or purchase of
assets) to the Administrator; PROVIDED that such successor organization executes
and delivers to the Issuer, the Owner Trustee, the Grantor Trustee and the
Indenture Trustee an agreement in which such corporation or other organization
agrees to be bound hereunder by the terms of the assignment in the same manner
as the Administrator is bound hereunder. Subject to the foregoing, this
Agreement shall bind any such permitted successors or assigns of the parties
hereto.
13. GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New, without giving
effect to conflicts of laws provisions thereof (other than Section 5-1401 of the
New York General Obligations Law).
14. HEADINGS. The section headings hereof have been inserted for
convenience of reference only and shall not be construed to affect the meaning,
construction or effect of this Agreement.
15. COUNTERPARTS. This Agreement may be executed in counterparts,
each of which when so executed shall together constitute but one and the same
agreement.
16. SEVERABILITY. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall be ineffective to the
extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
17. LIMITATION OF LIABILITY OF OWNER TRUSTEE. Notwithstanding
anything contained herein to the contrary, this instrument has been executed by
Delaware Trust Company, National Association, not in its individual capacity but
solely in its capacity as Owner Trustee of the Issuer, and in no event shall
Delaware Trust Company, National Association in its individual capacity or any
beneficial owner of the Issuer have any liability for the representations,
warranties, covenants, agreements or other obligations of the Issuer hereunder,
as to all of which recourse shall be had solely to the assets of the Issuer. For
all purposes of this Agreement, in the performance of any duties or obligations
of the Issuer hereunder, the Owner Trustee shall be subject to, and entitled to
the benefits of, the terms and provisions of Articles VIII, IX and X of the
Trust Agreement.
18. THIRD PARTY BENEFICIARY. The Parties hereto acknowledge that
the Noteholders and Certificateholders are express third party beneficiaries
hereof entitled to enforce their respective rights hereunder as if actually
parties hereto.
19. NO PETITION. The parties hereto will not at any time institute
against the Issuer any bankruptcy proceeding under any United States federal or
state bankruptcy or similar law in connection with any obligations of the Issuer
under any Transaction Document as defined in the Indenture.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered as of the day and year first above written.
THE NATIONAL COLLEGIATE STUDENT LOAN
TRUST 2005-1
By: Delaware Trust Company, National
Association, not in its individual
capacity but solely as Owner Trustee
By: /s/ Xxxxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Vice President
DELAWARE TRUST COMPANY, NATIONAL
ASSOCIATION, not in its individual
capacity but solely as Owner Trustee
By: /s/ Xxxxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Vice President
U.S. BANK NATIONAL ASSOCIATION, as
Indenture Trustee
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
U.S. BANK NATIONAL ASSOCIATION, as
Grantor Trustee
By: /s/ Xxxxxx X. Xxxxxxx
------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
FIRST MARBLEHEAD DATA SERVICES, INC.
By: /s/ Xxxxxxx Xxxxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: President
THE NATIONAL COLLEGIATE FUNDING LLC
By: GATE Holdings, Inc., Member
By: /s/ Xxxxxxx Xxxxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: President
EXHIBIT A
POWER OF ATTORNEY
STATE OF DELAWARE )
)
COUNTY OF NEW CASTLE )
KNOW ALL MEN BY THESE PRESENTS, that The National Collegiate Student
Loan Trust 2005-1 (the "ISSUER"), does hereby make, constitute and appoint First
Marblehead Data Services, Inc., as administrator under the Administration
Agreement dated as of February 23, 2005 (the "ADMINISTRATION AGREEMENT"), among
the Issuer, Delaware Trust Company, National Association, as Owner Trustee, U.S.
Bank National Association, as Indenture Trustee and as Grantor Trustee, The
National Collegiate Funding LLC and First Marblehead Data Services, Inc., as
Administrator, as the same may be amended from time to time, and its agents and
attorneys, as Attorney-in-Fact to execute on behalf of the Issuer all such
documents, reports, filings, instruments, certificates and opinions as it shall
be the duty of the Issuer to prepare, file or deliver pursuant to the Trust
Related Agreements, including, without limitation, to appear for and represent
the Issuer in connection with the preparation, filing and audit of federal,
state and local tax returns pertaining to the Issuer, and with full power to
perform any and all acts associated with such returns and audits that the Issuer
could perform, including without limitation, the right to distribute and receive
confidential information, defend and assert positions in response to audits,
initiate and defend litigation, and to execute waivers of restrictions on
assessments of deficiencies, consents to the extension of any statutory or
regulatory time limit, and settlements.
All powers of attorney for this purpose heretofore filed or executed by
the Issuer are hereby revoked.
Capitalized terms that are used and not otherwise defined herein shall
have the meanings ascribed thereto in the Administration Agreement.
EXECUTED as of February 23, 2005.
THE NATIONAL COLLEGIATE STUDENT
LOAN TRUST 2005-1
By: Delaware Trust Company, National
Association, not in its individual
capacity but solely as Owner Trustee
By:__________________________________
Name:
Title:
EXHIBIT B
POWER OF ATTORNEY
STATE OF DELAWARE )
)
COUNTY OF NEW CASTLE )
KNOW ALL MEN BY THESE PRESENTS, that The National Collegiate Funding
LLC (the "DEPOSITOR"), does hereby make, constitute and appoint First Marblehead
Data Services, Inc., as administrator under the Administration Agreement dated
as of February 23, 2005 (the "ADMINISTRATION AGREEMENT"), among The National
Collegiate Student Loan Trust 2005-1, Delaware Trust Company, National
Association, as Owner Trustee, U.S. Bank National Association, as Indenture
Trustee and as Grantor Trustee, the Depositor and First Marblehead Data
Services, Inc., as Administrator, as the same may be amended from time to time,
and its agents and attorneys, as Attorney-in-Fact to execute on behalf of the
Depositor all such documents, reports, filings, instruments, certificates and
opinions as it shall be the duty of the Depositor to prepare, file or deliver
pursuant to the Grantor Trust Related Agreements, including, without limitation,
to appear for and represent the Depositor in connection with the preparation,
filing and audit of federal, state and local tax returns pertaining to the NCF
Grantor Trust 2005-1, and with full power to perform any and all acts associated
with such returns and audits that the Depositor could perform, including without
limitation, the right to distribute and receive confidential information, defend
and assert positions in response to audits, initiate and defend litigation, and
to execute waivers of restrictions on assessments of deficiencies, consents to
the extension of any statutory or regulatory time limit, and settlements.
All powers of attorney for this purpose heretofore filed or executed by
the Depositor are hereby revoked.
Capitalized terms that are used and not otherwise defined herein shall
have the meanings ascribed thereto in the Administration Agreement.
EXECUTED as of February 23, 2005.
THE NATIONAL COLLEGIATE FUNDING LLC
By: GATE Holdings, Inc., Member
By:__________________________________
Name:
Title:
SCHEDULE A
DUTIES OF THE ISSUER
PERFORMED BY THE ADMINISTRATOR UNDER THE TRUST AGREEMENT
(A) Filing tax returns, reports and forms under Section 8.04.
(B) Furnishing documents to the Owners under Section 9.02.
(C) Filing a Certificate of Termination of the Trust upon termination
pursuant to Section 11.01.
(D) Appointing separate trustees under Section 12.02.
(E) Obtaining execution by the Owners of any amendment to the Trust
Agreement thereunder.
DUTIES OF THE ADMINISTRATOR UNDER THE TRUST AGREEMENT
Interpreting and applying the provisions set forth in Articles V, VI,
VII and XI regarding application of funds, allocations of Profit and Loss and
Distributions of Net Cash Flow, to resolve any ambiguities that may result from
such application and to provide the Owner Trustee and the Owners with
clarification of any provision as may be necessary or appropriate.
DUTIES OF THE ADMINISTRATOR UNDER THE INDENTURE
Providing the statements to Noteholders required under Section 8.09.
Providing, signing and filing such reports as required by Section
314(a) of the Trust Indenture Act of 1939, as amended, the Xxxxxxxx-Xxxxx Act of
2002 and any federal and state securities laws.
Servicer filings under Section 10.01 and 10.02.
Providing instructions to the Indenture Trustee as required under
Section 8.02(d).
