ADMINISTRATION AGREEMENT
EXHIBIT
99.8
This
ADMINISTRATION AGREEMENT dated as of September 20, 2007 (as amended from time
to
time, the “Agreement”), among THE NATIONAL COLLEGIATE STUDENT LOAN TRUST
2007-3, a Delaware statutory trust (the “Issuer”), WILMINGTON TRUST
COMPANY, a Delaware banking corporation, not in its individual capacity but
solely as Owner Trustee (the “Owner Trustee”), U.S. BANK NATIONAL
ASSOCIATION, a national banking association, in its capacity as trustee under
the Indenture (hereinafter defined) (the “Indenture 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 September 1, 2007 (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 September 20, 2007 (the “Trust Agreement”) among
the Owner Trustee, the Depositor and The Education Resources Institute, Inc.
(“XXXX” and together with the Depositor and their respective successors
in interest, the “Owners”).
Capitalized
terms used and not otherwise defined herein shall have the meanings assigned
to
such terms in the Trust Agreement or the Indenture (the 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 and the Depositor
are required to perform certain duties in connection with (a) the Student Loans
and other collateral pledged pursuant to the Indenture (the “Collateral”)
and (b) the Notes;
WHEREAS,
the Issuer, the Owner Trustee and the Depositor desire to have the Administrator
perform certain of the duties of the Issuer and the Owner Trustee referred
to in
the Basic Documents, the Note Insurer Agreements (as defined in the Trust
Agreement) and any other documents signed by the Owner Trustee on behalf of
the
Issuer (collectively, the “Trust Related Agreements”) and to provide such
additional services consistent with the terms of this Agreement and the Trust
Related Agreements as the Issuer, the Owner Trustee and the Depositor 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 and the
Depositor 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; provided that the
Administrator shall not be obligated to perform any of the Issuer’s duties under
the Trust Related Agreements relating to the payment of principal or interest
on
the Notes, reimbursement obligations, fees or any other payment obligations,
including without limitation those set forth under Sections 5.03 and 6.07 of
the
Indenture. 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 under the Trust Related Agreements 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, and
subject to, 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) Directing
the Indenture Trustee, by Issuer Order, to deposit moneys with Paying Agents,
if
any, other than the Indenture Trustee;
(C) Preparing
an Issuer Order and Officer’s Certificate and obtaining an Opinion of Counsel,
if necessary, for any release of property of the Indenture Trust
Estate;
(D) Preparing
Issuer Requests and obtaining Opinions of Counsel with respect to the execution
of amendments to the Indenture and the Trust Agreement and mailing notices
to
the Noteholders and Ambac with respect to such amendments;
(E) Paying
all expenses in connection with the issuance of the Notes; and
(F) Taking
all actions on behalf of the Issuer necessary under the XXXX Guarantee
Agreements, including without limitation informing XXXX that there are not
sufficient Available Funds for the repurchase of Rehabilitated Student Loans
in
accordance with Section 3.4 of any applicable Guaranty Agreement.
(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 expenses,
incurred in the absence of willful misconduct, negligence or bad faith on the
part of the Indenture Trustee and its agents, 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;
(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 in the absence of willful misconduct,
negligence or bad faith on the part of the Issuer and the Owner Trustee and
their respective agents, 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 Issuer, the
Depositor, the Indenture Trustee or the Owner Trustee in accordance with
Sections 1(b) or 1(c) of this Agreement; and
(C) Provide
instructions to the Indenture Trustee as required by Sections 8.02(d) and (e)
of
the Indenture.
(b) 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 Issuer, and the Owner Trustee on behalf of the
Issuer, under the Indenture, the Trust Agreement and the Reimbursement Agreement
including, without limitation, those duties and obligations set forth on
Schedule A hereto. In furtherance thereof, the Issuer 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 hereto, appointing the
Administrator as the attorney-in-fact of the Issuer, for the purpose of
executing on behalf of the Issuer all such documents, reports, filings,
instruments, certificates and opinions as are required to be executed by the
Issuer pursuant to such agreements. Subject to Section 5 of this
Agreement, and in accordance with the written instructions of the Issuer, the
Depositor, the Indenture Trustee, the Note Insurer or the Owner Trustee, the
Administrator shall administer, perform or supervise the performance of such
other activities in connection with the Collateral as are not covered by any
of
the foregoing provisions and as are expressly requested by the Issuer, the
Depositor, the Indenture Trustee, the Note Insurer 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 Trust Agreement or the Reimbursement 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 written instructions
received from the Issuer, the Depositor, the Indenture Trustee, the Note Insurer
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 may 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.
(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.
(c) 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 or Ambac, in
accordance with the Indenture, or from the Owner Trustee or the Owners, in
accordance with the Trust Agreement, or Ambac, in accordance with the
Reimbursement 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;
(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, except for claims
or
lawsuits initiated in the ordinary course of business by the Issuer 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; and
(D) The
removal of the Indenture 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) sell the Collateral pursuant to the Indenture
or
(C) take any action that the Issuer directs the Administrator not to take on
its
behalf.
(d) 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
accessible for inspection by the Issuer, the Indenture Trustee, the Note
Insurer, the Noteholders, the Certificateholders and the Owners at any time
during normal business hours. The Administrator shall maintain or cause to
be
maintained the books of the Issuer on the basis of a fiscal year ending June
30,
using the accrual method of accounting, in accordance with generally accepted
accounting principals, and shall comply with the other requirements set forth
in
Section 8.04 of the Trust Agreement.
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 Pool Balance as of the
last
day of the prior calendar month (and in the case of the payment of the
Administration Fee on the first Distribution Date, the aggregate outstanding
Pool Balance as of the Closing Date); provided that the Administration Fee
shall
be no less than $20,000 per annum.
(b) Reimbursement
for all its expenses incurred in performing its obligations hereunder, which
expenses shall not exceed $400,000 in the aggregate per annum,
including: annual audits of the Servicers and any other expenses
incurred by the Administrator on behalf of the Issuer.
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, the Note Insurer and the Owners from time to time
such additional information regarding the Collateral as the Issuer, the
Noteholders or the Owners 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 Indenture Trustee, the Note Insurer 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,
the Indenture Trustee, the Note Insurer or the Owner Trustee, the Administrator
shall have no authority to act for or represent the Issuer, the Indenture
Trustee, the Note Insurer or the Owner Trustee, respectively, in any way other
than as specified hereunder and shall not otherwise be deemed an agent of the
Issuer, the Indenture Trustee, the Note Insurer or the Owner
Trustee.
6. No
Joint Venture. Nothing contained in this Agreement (i) shall
constitute the Administrator and any of the Issuer, the Note Insurer, 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 such person or entity may engage in
business activities similar to those of the Issuer, the Owner 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 and the
payment in full of the Notes under the Indenture, 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 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
the Controlling Party under 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, the Indenture Trustee, at the direction
of
the Controlling Party under the Indenture, may remove the Administrator
immediately upon written notice of termination from the Indenture Trustee 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 written notice of such default, shall not cure such default
within ten days (or, if such default cannot be cured in such time, the
Administrator shall not give within ten days such assurance of cure as shall
be
reasonably satisfactory to the Indenture Trustee);
(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, with
respect to any involuntary case commenced against the Administrator under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect or shall 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 it 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 its 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, Ambac, the Noteholders 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
Owner Trustee, on behalf of the Issuer, 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.
(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 agree to 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, 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 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, the Administrator shall cooperate with the Issuer
and take all reasonable steps requested to assist the Issuer 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:
c/o
Wilmington Trust Company, as Owner Trustee
Xxxxxx
Square North
0000
Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx,
Xxxxxxxx 00000-0000
Attention: Corporate
Trust Administration
(b) If
to the
Administrator, to:
First
Marblehead Data Services, Inc.
The
Prudential Tower
000
Xxxxxxxx Xxxxxx - 00xx Xxxxx
Xxxxxx,
XX 00000-0000
Attention: Xx.
Xxxxxxx Xxxxxxxxxxx
with
a
copy to:
The
First
Marblehead Corporation
The
Prudential Tower
000
Xxxxxxxx Xxxxxx - 00xx Xxxxx
Xxxxxx,
XX 00000-0000
Attention:
Corporate Law Department
(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.
Xxxxx Xxxxx
(d) If
to the
Owner Trustee, to:
Wilmington
Trust Company
0000
Xxxxx Xxxxxx Xxxxxx
Xxxxxx
Xxxxxx Xxxxx
Xxxxxxxxxx,
Xxxxxxxx 00000-0000
Attention: Corporate
Trust Administration
(e) 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:
Corporate Law Department
(f) If
to
Ambac, to:
Ambac
Assurance Corporation
Xxx
Xxxxx
Xxxxxx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention: Surveillance
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 must be accompanied by the written
consent of the Owner Trustee (on behalf of the Issuer), the Indenture Trustee
(acting with the consent of the Controlling Party under the Indenture if
required by Section 11(d)) and the Certificateholders, and an Opinion of Counsel
to the Indenture 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 Controlling Party and Certificateholders), it shall
not be necessary to obtain the consent of the Controlling Party or any
Certificateholder, but it shall be necessary to obtain the consent of the Note
Insurer and the Indenture Trustee each of which shall be furnished with a letter
from each Rating Agency that the amendment will not result in the downgrading
or
withdrawal of the then-current rating 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 with respect to any Note then outstanding (i.e., technical
in
nature), it shall not be necessary to obtain the consent of the Controlling
Party or any Certificateholder, but the Indenture Trustee, the Owner Trustee,
the Administrator and Ambac 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 Controlling Party.
(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 and the Indenture Trustee acting
with
the consent of the Controlling Party to the extent required by the Indenture;
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 the Controlling Party as
required by the Indenture.
(e) It
shall
not be necessary to obtain 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 thereto. To the extent the Back-Up Agreement amends or
supplants this Agreement, the Back-Up Agreement is deemed to be approved as
an
amendment to this Agreement without further consent.
12. Successors
and Assigns. This Agreement may not be assigned by the
Administrator unless such assignment is previously consented to in writing
by
the Owner Trustee, on behalf of the Issuer, the Note Insurer 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 Owner Trustee, the
Note Insurer or the Indenture 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 Owner Trustee, the Note Insurer and the Indenture Trustee an agreement
in
which such corporation or other organization agrees to be bound hereunder 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 York, 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 Wilmington Trust
Company, not in its individual capacity but solely in its capacity as Owner
Trustee of the Issuer, and in no event shall Wilmington Trust Company 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 Ambac, the
Noteholders, Certificateholders and XXXX (with respect to Section 1(a)(i)(F))
are express third party beneficiaries hereof and are entitled to enforce their
respective rights hereunder as if actually parties hereto.
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.
[Remainder
of page intentionally blank]
IN
WITNESS WHEREOF, the parties have caused this Agreement to be duly executed
and
delivered as of the day and year first above written.
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THE
NATIONAL COLLEGIATE STUDENT LOAN
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TRUST
2007-3
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By:Wilmington
Trust Company, not in its individual capacity but solely as Owner
Trustee
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By:
/s/ Xxxxxxxx X. Xxxxx
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Name: Xxxxxxxx
X.
Xxxxx
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Title: Vice
President
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WILMINGTON
TRUST COMPANY,
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not
in its individual capacity but solely as
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Owner
Trustee
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By:
/s/ Xxxxxxxx X. Xxxxx
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Name: Xxxxxxxx
X.
Xxxxx
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Title: Vice
President
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U.S.
BANK NATIONAL ASSOCIATION,
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as
Indenture Trustee
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By:
/s/ Xxxxx Xxxxx
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Name: Xxxxx
Xxxxx
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Title: Vice
President
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FIRST
MARBLEHEAD DATA SERVICES, INC.
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By:
/s/ Xxxxxxx Xxxxxxxxxxx
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Xxxxxxx
Xxxxxxxxxxx
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President
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THE
NATIONAL COLLEGIATE FUNDING LLC
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By:
GATE Holdings, Inc., Member
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By:
/s/ Xxxx X. Xxxxxxxxx
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Xxxx
X. Xxxxxxxxx
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Vice
President
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EXHIBIT
A
POWER
OF
ATTORNEY
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STATE
OF DELAWARE
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)
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)
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COUNTY
OF NEW CASTLE
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)
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KNOW
ALL
MEN BY THESE PRESENTS, that The National Collegiate Student Loan Trust 2007-3
(the “Issuer”), does hereby make, constitute and appoint First Marblehead
Data Services, Inc. as administrator under the Administration Agreement dated
as
of September 20, 2007 (the “Administration Agreement”), among the Issuer;
Wilmington Trust Company, as Owner Trustee; U.S. Bank National Association,
as
Indenture Trustee; The National Collegiate Funding LLC; and First Marblehead
Data Services, Inc., as Administrator, as the same may be amended from time
to
time, as well as 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 these purposes 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 September 20, 2007.
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THE
NATIONAL COLLEGIATE STUDENT
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LOAN
TRUST 2007-3
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By:Wilmington
Trust Company, not in its individual capacity but solely as Owner
Trustee
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By:
________________________________
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Name:
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Title:
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SCHEDULE
A
Duties
of the Issuer or Owner Trustee
Performed
by the Administrator under the Trust Agreement
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(A)
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Paying
to the Owner Trustee its fees and expenses as are set forth in Section
10.01 of the Trust Agreement
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(B)
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Furnishing
documents to the Owners under Section
9.02.
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(C)
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Filing
a Certificate of Termination of the Trust upon termination pursuant
to
Section 11.01.
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(D)
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Appointing
separate trustees under Section
12.02.
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(E)
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Obtaining
execution by the Owners of any amendment to the Trust Agreement
thereunder.
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Duties
of the Administrator under the Trust Agreement
Filing
tax returns, reports and forms under Section 8.04.
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 or Issuer under the Indenture Performed by the
Administrator
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.
Causing
each Servicer to deliver any applicable annual statements as to compliance,
assessments as to compliance and attestation reports under Section 10.01 and
10.02, and providing copies thereof to Ambac and the Rating Agencies rating
the
Notes.
Providing
instructions to the Indenture Trustee as required under Section
8.02.
