STRUCTURING ADVISORY AGREEMENT
Exhibit
99.18
STRUCTURING
ADVISORY AGREEMENT
(the
“Agreement”),
dated
as of September 28, 2006, between The National Collegiate Student Loan Trust
2006-3, 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, 2006, 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 28, 2006 by
and
among The National Collegiate Funding LLC, Wilmington Trust Company 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. $173,308,476
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.
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 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
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 2006-3
By: WILMINGTON
TRUST COMPANY,
not
in its individual capacity but solely as
Owner
Trustee
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| By: /s/ J. Xxxxxxxxxxx Xxxxxx | ||
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Name:
J.
Xxxxxxxxxxx Xxxxxx
Title:
Financial Services Officer
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THE
FIRST MARBLEHEAD
CORPORATION
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| By: /s/ Xxxxxx X. Xxxx | ||
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Name:
Xxxxxx X. Xxxx
Title:
Executive Vice President & Chief Financial
Officer
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