EXHIBIT 10.10
ADMINISTRATION AGREEMENT
This ADMINISTRATION AGREEMENT dated as of October 28, 2004 (as amended
from time to time, the "Agreement"), among THE NATIONAL COLLEGIATE STUDENT LOAN
TRUST 2004-2, a Delaware statutory trust (the "Issuer"), WACHOVIA 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 October 1, 2004 (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 October 28, 2004 (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 2004-2, 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 October 28, 2004 (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 IndentureTrust 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 Servicer pursuant to Section 10.02 of the
Indenture;
(ii) Payments to Servicer 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 2004-2
c/o Wachovia Trust Company, National Association, as Owner
Trustee
One Xxxxxx Xxxxxx, 0xx Xxxxx
000 Xxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxxxxx X. Xxxxxxx
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(b) If to the Administrator, to:
First Marblehead Data Services, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xx. Xxx Xxxxx
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:
Wachovia Trust Company, National Association, as Owner
Trustee
One Xxxxxx Xxxxxx, 0xx Xxxxx
000 Xxxx Xxxxxx
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
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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.
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
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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 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 Wachovia
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 Wachovia
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.
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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 2004-2
By: Wachovia 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
WACHOVIA 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
ADMINISTRATION AGREEMENT
FIRST MARBLEHEAD DATA SERVICES, INC.
By: /s/ Xxxxxxx Xxxxxxxxxxx
---------------------------
Name: Xxxxxxx Xxxxxxxxxxx
Title: Vice President and Treasurer
THE NATIONAL COLLEGIATE FUNDING LLC
By: GATE Holdings, Inc., Member
By: /s/ Xxxxxxx Xxxxxxxx
------------------------
Name: Xxxxxxx Xxxxxxxx
Title: President
ADMINISTRATION AGREEMENT
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 2004-2 (the "Issuer"), does hereby make, constitute and appoint First
Marblehead Data Services, Inc., as administrator under the Administration
Agreement dated as of October 28, 2004 (the "Administration Agreement"), among
the Issuer, Wachovia 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 this 28 day of October, 2004.
THE NATIONAL COLLEGIATE STUDENT
LOAN TRUST 2004-2
By: Wachovia 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 October 28, 2004 (the "Administration Agreement"), among The National
Collegiate Student Loan Trust 0000-0, Xxxxxxxx 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 2004-2, 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 this 28 day of October, 2004.
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).
