Exhibit 10.9
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STRUCTURING ADVISORY AGREEMENT
STRUCTURING ADVISORY AGREEMENT (the "AGREEMENT"), dated as of
_____________, 20_____, between The National Collegiate Trust 20___-____, 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 ___________, 20___,
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 ____________, 20____ by and among GATE Holdings, Inc.,
______________________ 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 $____________________ payable on the Closing Date from the
Cost of Issuance Account;
3.2 An amount payable on each Quarterly Distribution Date at a
rate equal to 1/4 of _______% of the aggregate outstanding principal balance of
the Financed Student Loans owned by the Trust as of the related Determination
Date for the prior Quarterly Distribution Date (and in the case of the payment
of such amount on the first Quarterly 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 Three-Month LIBOR plus _____%,
which will be reset in the same manner as the Applicable Index for the Class
____ 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 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
____________________, not in its individual capacity but solely in its capacity
as Owner Trustee of the Trust, and in no event shall ______________________ 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, with the consent of the Note
Insurer, which shall not be unreasonably withheld, 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 __________________________
_____________________________
_____________________________
_____________________________
Attention:____________________
(ii) to the Advisor at:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:_____________________
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).
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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.
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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 20_____-____
By: _________________________,
not in its individual
capacity but solely as
Owner Trustee
By:_______________________
Name:
Title:
THE FIRST MARBLEHEAD CORPORATION
By:_____________________________
Name:
Title: