EXHIBIT 10.12
STRUCTURING ADVISORY AGREEMENT
STRUCTURING ADVISORY AGREEMENT (the "AGREEMENT"), dated as of February
23, 2005, between The National Collegiate Student Loan Trust 2005-1, a Delaware
statutory trust (the "TRUST"), and The First Marblehead Corporation (the
"ADVISOR").
1. APPOINTMENT. The Trust hereby appoints the Advisor and the
Advisor hereby agrees to act, as structuring advisor to the Trust in connection
with the Trust's issuance of its Student Loan Asset Backed Notes (the "NOTES")
pursuant to that certain Indenture (the "INDENTURE"), dated as of February 1,
2005, between the Trust and U.S. Bank National Association, as Indenture
Trustee, under the terms and conditions set forth herein. Capitalized terms not
otherwise defined herein shall have the meanings set forth in the Indenture and
the Trust Agreement dated as of February 23, 2005 by and among The National
Collegiate Funding LLC, Delaware Trust Company, National Association and The
Education Resources Institute, Inc.
2. DUTIES OF ADVISOR.
2.1 CONSULTING SERVICES. The Advisor shall provide the
Trust with the following services:
(i) Advise the Trust with respect to the
structuring of the Notes and the related transactions;
(ii) Engage, coordinate and evaluate the efforts
of the service providers to the Trust, including without limitation, program
lenders, consumer and securitization lawyers, accountants and auditors, trustees
and providers of loan servicing, collection and origination services;
(iii) Monitor the transmission of loan data
between borrower, participating school, loan originator and program lender; and
(iv) Work with potential financing sources,
rating agencies and financial guaranty insurers, utilizing proprietary cash flow
modeling, so as to optimize the economics of securitization.
2.2 LIMITATIONS ON THE ADVISOR'S POWERS. Notwithstanding
anything herein to the contrary, the Advisor's responsibilities are consultative
only, and the Advisor shall have no power to take any action on behalf of the
Trust, or to cause the Trust to be responsible for taking any action.
3. COMPENSATION OF ADVISOR. As compensation for the performance
of the Advisor's obligations under this Agreement and as reimbursement for its
expenses related thereto, the Advisor shall be entitled to a Structuring
Advisory Fee payable pursuant to the priorities set forth in the Indenture and
the Trust Agreement as follows:
3.1 $53,763,059 payable on the Closing Date; and
3.2 An amount payable on each Distribution Date at a rate
equal to 1/12 of 0.15% of the aggregate outstanding principal balance of the
Financed Student Loans owned by the Trust as of the related Determination Date
for the prior Distribution Date (and in the case of the payment of such amount
on the first Distribution Amount as of the Cutoff Date) pursuant to the
priorities set forth in the Indenture and the Trust Agreement. To the extent
that any payment is not made when due, all accrued and unpaid amounts shall bear
interest at a rate equal to One-Month LIBOR plus 1.50%, which will be reset in
the same manner as the Applicable Index for the Class A Notes under the
Indenture.
4. LIABILITY. The Advisor is not and never shall be liable to any
creditor of the Trust. In addition, the Advisor will not be culpable for and
will have no liability to the Trust for or with respect to any and all losses,
claims, damages or liabilities, joint or several, of the Trust incurred in
connection with the Advisor's performance of the services described in this
Agreement, except to the extent that any such loss, claim, damage or liability
is found in a final judgment by a court of competent jurisdiction to have
resulted from the Advisor's gross negligence, bad faith or willful misconduct,
or a material breach of this Agreement. The exculpation of the Trust under this
paragraph shall be in addition to any liability which the Trust may otherwise
have, shall survive any termination of this Agreement, and shall be binding upon
and extend to the benefit of any successors, assigns and representatives of the
Trust and the Advisor.
5. ASSIGNMENT. This Agreement shall be binding upon and inure to
the benefit of the parties' successors and permitted assigns. However, neither
this Agreement nor any of the rights of the parties hereunder may be transferred
or assigned by either party hereto, except that (i) the Trust may assign its
rights hereunder to the Indenture Trustee and (ii) the Advisor may assign its
rights and obligations hereunder to any affiliated person or entity. Any
attempted transfer or assignment in violation of this Section 5 shall be void.
6. RELATIONSHIP OF THE PARTIES. Nothing contained in this
Agreement is intended or is to be construed to constitute the Advisor and the
Trust as partners or joint venturers or either party as an employee of the other
party. Neither party hereto shall have any express or implied right or authority
to assume or create any obligations on behalf of or in the name of the other
party or to bind the other party to any contract, agreement or undertaking with
any third party. The services to be performed by the Advisor hereunder are
consultation services only. The Trust shall at all times be free to accept or
reject the advice rendered by the Advisor hereunder in its sole discretion.
7. 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 Trust, and in no event shall
Delaware Trust Company, National Association in its individual capacity or any
beneficial owner of the Trust have any liability for the representations,
warranties, covenants, agreements or other obligations of the Trust hereunder,
as to all of which recourse shall be had solely to the assets of the Trust. For
all purposes of this Agreement, in the performance of any duties or obligations
of the Trust 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.
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8. MISCELLANEOUS.
8.1 AMENDMENT AND WAIVERS. This Agreement may be amended
or waived only by a writing signed by both parties, and then such consent shall
be effective only in the specific instance and for the specific purpose for
which given.
8.2 NOTICES. All notices and other communications
provided for herein shall be dated and in writing and shall be deemed to have
been duly given when delivered, if delivered personally or sent by telecopy, or
when mailed, if sent by registered or certified mail, return receipt requested,
postage prepaid.
(i) to the Trust at:
c/o Delaware Trust Company,
National Association
000 Xxxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxxxxx Xxxxxxx
(ii) to the Advisor at:
The First Marblehead Corporation
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxx Xxxxx
with a copy to:
The First Marblehead Corporation
The Prudential Tower
000 Xxxxxxxx Xxxxxx - 00xx Xxxxx
Xxxxxx, XX 00000-0000
Attention: Xx. Xxxxxxx X. Xxxxxxx
or at such other address as any party shall have specified by notice in writing
to the others.
8.3 EFFECTIVENESS OF AGREEMENT; ENTIRE AGREEMENT. The
terms of this Agreement shall become effective upon the issuance of the Notes.
This Agreement contains the entire agreement between the parties hereto and
supersedes all prior agreements and understandings, oral and written, between
the parties hereto with respect to the subject matter hereof.
8.4 SECTION HEADINGS. The section headings contained
herein are included for convenience of reference only and shall not constitute a
part of this Agreement for any other purpose.
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8.5 COUNTERPARTS. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original and all of which
together shall be deemed to be one and the same instrument.
8.6 APPLICABLE LAW. This Agreement shall be governed by,
and construed in accordance with, the laws of the State of New York applicable
to contracts made and to be performed entirely within such State, without giving
effect to conflicts of laws principles thereof (other than Section 5-1401 of the
New York General Obligations Law).
8.7 SEVERABILITY. Any section, clause, sentence,
provision, subparagraph or paragraph of this Agreement held by a court of
competent jurisdiction to be invalid, illegal or ineffective shall not impair,
invalidate or nullify the remainder of this Agreement, but the effect thereof
shall be confined to the section, clause, sentence, provision, subparagraph or
paragraph so held to be invalid, illegal or ineffective.
8.8 NO PETITION. The parties hereto will not at any time
institute against the Trust any bankruptcy proceeding under any United States
federal or State bankruptcy or similar law in connection with any obligations of
the Trust under any Transaction Document as defined in the Indenture.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the parties hereto have executed this Structuring
Advisory Agreement as of the date 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
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Name: Xxxxxxxx X. Xxxxxxx
Title: Vice President
THE FIRST MARBLEHEAD CORPORATION
By: /s/ Xxxx X. Xxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxx
Title: Executive Vice President
