September 20, 2007
EXHIBIT
99.9
September
20, 2007
U.S.
Bank
National Association
Corporate
Trust Services-SFS
Xxx
Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxx,
Xxxxxxxxxxxxx 00000
Wilmington
Trust Company
Xxxxxx
Square North
0000
Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx,
Xxxxxxxx 00000-0000
Ladies
and Gentlemen:
In
connection with the issuance by The
National Collegiate Student Loan Trust 2007-3 (the “Trust”) of student
loan asset backed notes on September 20, 2007 pursuant to the Indenture dated
as
of September 1, 2007 (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 20, 2007 (the “Administration
Agreement”) among the
Trust; Wilmington Trust Company as Owner Trustee; 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; providedthat 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 or 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 under the Administration Agreement, subject to the
satisfaction of the conditions set forth in Sections 8(e)(ii) and (f)
thereof.
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(e)(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 commercially reasonable efforts to reconstruct
and reconcile such data in order 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 Section 8.02(e) of the
Indenture.
The
provisions of Section 17 and Section 19 of the Administration Agreement are
incorporated herein by reference and shall apply to this Back-up Agreement
as
they apply to the Administration Agreement.
[Remainder
of page intentionally blank]
Please
evidence your agreement with the terms set forth herein by signing this letter
below.
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Very
truly yours,
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THE
NATIONAL COLLEGIATE STUDENT LOAN
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TRUST
2007-3
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By: WILMINGTON
TRUST COMPANY,
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not
in its individual capacity but
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solely as Owner Trustee
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By:
/s/ Xxxxxxxx X.
Xxxxx
Name:
Xxxxxxxx X. Xxxxx
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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ACCEPTED
AND AGREED:
WILMINGTON
TRUST COMPANY,
not
in
its individual capacity but solely as
Owner
Trustee
By:
/s/ Xxxxxxxx X.
Xxxx
Name:
Xxxxxxxx X. Xxxxx
Title: Vice
President
U.S.
BANK
NATIONAL ASSOCIATION
By:
/s/ Xxxxx X.
Xxxxx
Name:
Xxxxx X. Xxxxx
Title: Vice
President
