September 28, 2006 Corporate Trust Services-SFS One Federal Street, 3rd Floor Boston, Massachusetts 02110 Wilmington Trust Company
Exhibit
99.17
September
28, 2006
U.S.
Bank
National Association
Corporate
Trust Services-SFS
Xxx
Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxx,
Xxxxxxxxxxxxx 00000
Wilmington
Trust Company
0000
Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx,
Xxxxxxxx 00000-0000
| Re: |
Back-up Administration
Agreement___________
|
Ladies
and Gentlemen:
In
connection with the issuance by The National Collegiate Student Loan Trust
2006-3 (the “Trust”)
of
student loan asset backed notes on September 28, 2006 pursuant to the Indenture
dated as of September
1, 2006 (the “Indenture”)
between
the Trust and U.S. Bank National Association (“U.S.
Bank”),
this
letter serves as the Back-up Administration Agreement (the “Back-up
Agreement”)
and
amends and supplements the Administration Agreement dated as of September
28,
2006 (the
“Administration
Agreement”)
among
the Trust; Wilmington Trust Company; U.S. Bank; The National Collegiate Funding,
LLC; and First Marblehead Data Services, Inc. (“FMDS”),
as
set forth below.
Capitalized
terms used and not otherwise defined herein shall have the meanings assigned
to
such terms in the Administration Agreement. In the event of the
resignation or removal
of FMDS
as Administrator pursuant to Section
8 of the
Administration Agreement, U.S.
Bank
shall
assume
the
duties required
to be performed by FMDS as
Administrator under the Administration
Agreement; provided that
U.S.
Bank shall not under any circumstances be responsible for any representations
and warranties or for any payment, guarantee and indemnity obligations of
FMDS
as the Administrator, in each case, under the Administration Agreement, any
other Trust Related Agreements or for any liability incurred by FMDS as the
Administrator prior to the date of the assumption by U.S. Bank of the
obligations of the Administrator under the Administration Agreement.
Notwithstanding the foregoing, with the consent of the Owner Trustee (which
consent will not be unreasonably withheld), U.S. Bank, if it is unwilling
or
unable to so act, may designate a successor Administrator to be appointed
pursuant to the provisions of Section 8 of the Administration Agreement,
subject
to the satisfaction of the conditions set forth in Section 8(e) and (f).
As
compensation for the performance of U.S. Bank’s obligations under this Back-up
Agreement, U.S. Bank shall be entitled to (i) $10,000 payable by the Trust
on
the date of execution of this Back-up Agreement and (ii) a monthly fee of
$1,000
payable by the Trust on each Distribution Date pursuant to section 8.02(d)(1)
of
the Indenture until such time as U.S. Bank begins performing FMDS’ duties as
Administrator under the Administration Agreement. In the event that FMDS
resigns
or is removed as Administrator and U.S. Bank begins performing FMDS’ duties as
Administrator under the Administration Agreement, U.S. Bank shall be compensated
as the Administrator in accordance with the Administration
Agreement.
U.S.
Bank
will be subject to all of the terms and conditions of the Administration
Agreement in so far as such terms and conditions apply to U.S. Bank’s duties as
set forth above.
In the
performance or non-performance of its duties contemplated by this Back-up
Agreement, U.S. Bank shall be subject to the same standard of care as the
Administrator under the Administration Agreement and shall be entitled to
the
same rights, privileges, protections, immunities and benefits given to the
Administrator under the Administration Agreement. In no event will U.S. Bank
be
responsible for the obligations of the Administrator or be responsible for
any
actions, omissions or malfeasance of the Administrator under the Administration
Agreement, and the Trust Related Agreements prior to the assumption by U.S.
Bank
of the obligations of the Administrator under the Administration
Agreement.
In
order
to facilitate the performance of U.S. Bank’s duties under this
Back-up Agreement, FMDS will make all files, systems and employees available
to
U.S. Bank.
Without
limiting the generality of the foregoing, FMDS agrees to cooperate with U.S.
Bank (or its designee) to facilitate the orderly transfer of its duties under
the Administration Agreement, including without limitation, notifying the
Servicers, the Custodians, their collection agents and other appropriate
parties
of the transfer of the administrator function and providing (or causing the
Servicers to provide) U.S. Bank with all documents and records in electronic
or
other form reasonably requested by U.S. Bank to enable U.S. Bank or its designee
to assume the Administrator’s functions under the Administration Agreement and
the Trust Related Agreements (including without limitation such information
relating to Defaulted Student Loans) and shall transfer (and cause any
collection agent to transfer) to the Indenture Trustee for deposit into the
XXXX
Pledge Fund for the benefit of the Trust all monies received by it with respect
to the Defaulted Student Loans.
In
furtherance of the foregoing, FMDS hereby sublicenses to U.S. Bank, which
sublicense shall be exercisable only upon assumption by U.S. Bank of the
duties
required to be performed by FMDS as Administrator under the Administration
Agreement, FMDS’ rights to access, install and use the Wall Street Office
software program (or such successor program as may then be used by the
Administrator), including any related queries or reporting scripts, as may
be
reasonably necessary for U.S. Bank to perform such duties.
In
the
event that U.S. Bank begins performing FMDS’ duties as Administrator, it shall
be authorized to accept and rely on all of the accounting, records (including
computer records) and work of the FMDS as Administrator (collectively, the
“Predecessor Work Product”) without any audit or other examination thereof, and
it shall have no duty, responsibility, obligation or liability for the acts
and
omissions of the FMDS. If any error, inaccuracy, omission or incorrect or
non-standard practice or procedure (collectively, “Errors”) exist in any
Predecessor Work Product and such Errors make it materially more difficult
to
service or should cause or materially contribute to the successor Administrator
making or continuing any Errors (collectively, “Continued Errors”), U.S. Bank as
successor Administrator or otherwise shall have no duty, responsibility,
obligation or liability for such Continued Errors; provided that U.S. Bank
agrees to use its reasonable efforts to prevent further Continued Errors.
In the
event that U.S. Bank upon succeeding to the Administrator becomes aware of
Errors or Continued Errors, it shall use its reasonable efforts to reconstruct
and reconcile such data as is commercially reasonably to correct such Errors
and
Continued Errors and to prevent future Continued Errors.
Subject
to the foregoing, U.S.
Bank
will be required to begin performing its duties under this Back-up Agreement
within 30 days of receiving notice of FMDS’ resignation
or removal
as
Administrator under the Administration Agreement (or, if later, the effective
date of the resignation or removal). Out of pocket expenses incurred by U.S.
Bank in connection with the transition of services hereunder shall be borne
by
FMDS. To the extent that such expenses are not paid by FMDS, such expenses
shall
be paid by the Trust pursuant to the Indenture.
The
provisions of Section 17 of the Administration Agreement are incorporated
herein
by reference and shall apply to this Back-up Agreement as they apply to the
Administration Agreement.
Please
evidence your agreement with the terms set forth herein by signing this letter
below.
|
Sincerely,
By: WILMINGTON TRUST COMPANY,
not
in its individual capacity but
solely
as Owner Trustee
|
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| |
|
|
| By: | /s/ J. Xxxxxxxxxxx Xxxxxx | |
|
|
||
|
Name: J.
Xxxxxxxxxxx Xxxxxx
Title: Financial
Services Officer
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| FIRST MARBLEHEAD DATA SERVICES, INC. | ||
| |
|
|
| By: | /s/ Xxxxxxx Xxxxxxxxxxx | |
|
|
||
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Name: Xxxxxxx
Xxxxxxxxxxx
Title: President
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||
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THE
NATIONAL COLLEGIATE FUNDING LLC
By: GATE Holdings, Inc.,
Member
|
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| |
|
|
| By: | /s/ Xxxx X. Xxxxxx | |
|
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Name: Xxxx
X. Xxxxxx
Title: Vice
President
|
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ACCEPTED
AND AGREED:
WILMINGTON
TRUST COMPANY,
not
in
its individual capacity but solely as
Owner
Trustee
| By: /s/ J. Xxxxxxxxxxx Xxxxxx | |||
|
|
|||
|
Name:
J. Xxxxxxxxxxx Xxxxxx
Title:
Financial Services Officer
|
U.S.
BANK
NATIONAL ASSOCIATION
| By: /s/ Xxxxx X. Xxxxx | |||
|
|
|||
|
Name:
Xxxxx X. Xxxxx
Title: Vice
President
|
