EXHIBIT 10.11
October 28, 2004
U.S. Bank National Association
Corporate Trust Services-SFS
Xxx Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Wachovia Trust Company, National Association
One Xxxxxx Xxxxxx, 0xx Xxxxx
000 Xxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Re: The National Collegiate Student Loan Trust 2004-2
Back-up Administration Agreement
Ladies and Gentlemen:
In connection with the issuance by The National Collegiate Student Loan
Trust 2004-2 (the "Trust") and NCF Grantor Trust 2004-2 of student loan asset
backed notes and certificates on October 28, 2004 pursuant to the Indenture
dated as of October 1, 2004 (the "Indenture") between the Trust and U.S. Bank
National Association ("U.S. Bank") and the Grantor Trust Agreement dated October
28, 2004 between The National Collegiate Funding LLC and U.S. Bank,
respectively, this letter serves as the Back-up Administration Agreement (the
"Back-up Agreement") and amends and supplements the Administration Agreement
dated as of October 28, 2004 (the "Administration Agreement") among the Trust,
Wachovia Trust Company, National Association, U.S. Bank 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 the Grantor 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, 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 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), first 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, the Trust Related Agreements and the Grantor
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 Servicer, the Custodian, its collection agents and other
appropriate parties of the transfer of the administrator function and providing
(or causing the Servicer 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, the Trust Related Agreements and the Grantor 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.
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.
2
Please evidence your agreement with the terms set forth herein by signing
this letter below.
Sincerely,
THE NATIONAL COLLEGIATE STUDENT LOAN
TRUST 2004-2
By: WACHOVIA TRUST COMPANY, NATIONAL
ASSOCIATION, not in its individual
capacity but solely as Owner Trustee
By: /s/ Xxxxxxxx X. Xxxxxxx
-------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Vice President
FIRST MARBLEHEAD DATA SERVICES, INC.
By: /s/ Xxxxxxx Xxxxxxxxxxx
--------------------------
Name: Xxxxxxx Xxxxxxxxxxx
Title: Vice President and Treasurer
THE NATIONAL COLLEGIATE FUNDING LLC
By: GATE Holdings, Inc., Member
By: /s/ Xxxxxxx Xxxxxxxx
----------------------
Name: Xxxxxxx Xxxxxxxx
Title: President
BACK-UP ADMINISTRATION AGREEMENT
ACCEPTED AND AGREED:
WACHOVIA TRUST COMPANY, NATIONAL
ASSOCIATION, not in its individual capacity but solely as
Owner Trustee
By: /s/ Xxxxxxxx X. Xxxxxxx
-------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Vice President
U.S. BANK NATIONAL ASSOCIATION
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
BACK-UP ADMINISTRATION AGREEMENT
