STRUCTURING ADVISORY AGREEMENT
EXHIBIT
99.10
Execution
Copy
STRUCTURING
ADVISORY AGREEMENT (the “Agreement”), dated as of September 20,
2007, between The National Collegiate Student Loan Trust 2007-3, 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 September 1, 2007, 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 September 20, 2007 by and among The National Collegiate
Funding LLC, Wilmington Trust Company, as Owner Trustee, 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. $88,531,247
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 last day of the previous calendar month (and in the case
of
the payment of such amount on the first Distribution Date as of the Closing
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;
Indemnity. The Advisor is not and never shall be liable to any
creditor of the Trust. In addition to the compensation and expenses
that the Trust has agreed to pay for the services to be performed pursuant
to
this Agreement, the Trust agrees: (i) to indemnify and hold the
Advisor (which term for the purposes of this Agreement includes its controlling
persons, members, directors, officers, employees, agents and representatives)
harmless against and from all losses, claims, damages or liabilities, joint
or
several (and all action, claims, proceeds and investigations in respect
thereof), to which the Advisor may become subject in connection with its
performance of the services described in this Agreement, (ii) that 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, and (iii) in each case, to reimburse
the
Advisor for all reasonable legal and other out-of-pocket expenses (including
the
cost of investigation and preparation) as and when incurred by the Advisor
arising out of or in connection with any action, claim, proceeding or
investigation (whether initiated or conducted by the Trust or any other party)
in connection therewith, whether or not resulting in any liability (and whether
or not the Advisor is a defendant in, or target of, any such action, claim,
proceeding or investigation); provided, however, that the Trust shall not be
liable to the Advisor pursuant to clauses (i) and (iii) above and the Trust’s
exculpation of the Advisor pursuant to clause (ii) above shall not apply in
any
such case 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 gross negligence, bad faith or willful misconduct of the Advisor or any
other indemnified person hereunder or a material breach of this Agreement,
in
which case any amounts paid and any expenses reimbursed under clause (iii)
above
shall be refunded. If for any reason the foregoing indemnification
(including reimbursement pursuant to clause (iii) above) or the exculpation
is
unavailable to the Advisor or insufficient to hold it harmless (other than
by
reason of the proviso to the preceding sentence), then the Trust shall
contribute to the amount paid or payable by the Advisor as a result of such
loss, claim, damage or liability in such proportion as is appropriate to reflect
not only the relative benefits received by the Trust on the one hand and the
Advisor on the other hand but also the relative fault of the Trust and the
Advisor as well as any relevant equitable considerations, provided that, in
no
event, will the Advisor’s aggregate contribution hereunder exceed the amount of
compensation actually received by the Advisor pursuant to this
Agreement. The indemnity, exculpation, reimbursement and contribution
obligations of the Trust under this paragraph shall be paid pursuant to and
in
accordance with the priorities set forth in Section 8.02(d)(16) of the Indenture
and 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 Wilmington Trust
Company, not in its individual capacity but solely in its capacity as Owner
Trustee of the Trust, and in no event shall Wilmington Trust Company, 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.
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
Wilmington Trust Company
Xxxxxx
Square North
0000
Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx,
Xxxxxxxx 00000-0000
Attention: Corporate
Trust Administration
(ii) to
the
Advisor at:
The
First
Marblehead Corporation
The
Prudential Tower
000
Xxxxxxxx Xxxxxx - 00xx Xxxxx
Xxxxxx,
XX 00000-0000
Attention: Corporate
Law Department
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.
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]
IN
WITNESS WHEREOF, the parties hereto have executed this Structuring Advisory
Agreement as of the date first above written.
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THE
NATIONAL COLLEGIATE
STUDENT
LOAN TRUST 2007-3
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By:WILMINGTON
TRUST COMPANY,
not
in its individual capacity but solely as
Owner
Trustee
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By:
/s/ Xxxxxxxx X. Xxxxx
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Name:
Xxxxxxxx X. Xxxxx
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Title:
Vice President
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THE
FIRST MARBLEHEAD CORPORATION
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By:
/s/ Xxxx X. Xxxxxxxxx
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Name:Xxxx
X. Xxxxxxxxx
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Title:Senior
Vice President
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