EXHIBIT 10.12
STRUCTURING ADVISORY AGREEMENT
STRUCTURING ADVISORY AGREEMENT (the "Agreement"), dated as of October 28,
2004, between The National Collegiate Student Loan Trust 2004-2, 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 October 1, 2004,
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 October 28, 2004 by and among The National Collegiate
Funding LLC, Wachovia 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 $64,405,171 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 Wachovia
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 Wachovia
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 Wachovia Trust Company, National Association
One Xxxxxx Xxxxxx, 0xx Xxxxx
000 Xxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: 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.
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.
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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 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
THE FIRST MARBLEHEAD CORPORATION
By: /s/ Xxxx X. Xxxxxx
--------------------
Name: Xxxx X. Xxxxxx
Title: Executive Vice President
SRUCTURING ADVISORY AGREEMENT
