EXHIBIT 10.11
June 10, 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 2004-1
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Back-up Note Administration Agreement
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Ladies and Gentlemen:
In connection with the issuance by The National Collegiate Student Loan
Trust 2004-1 (the "TRUST") of student loan asset backed notes on June 10, 2004
pursuant to the Indenture dated as of June 1, 2004 (the "INDENTURE") between the
Trust and U.S. Bank National Association ("U.S. BANK"), this letter serves as
the Back-up Note Administration Agreement (the "BACK-UP AGREEMENT") and amends
and supplements the Administration Agreement dated as of June 10, 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 perform only such duties as required
to be performed by FMDS as Administrator under Sections 8.02(d)-(g) and 8.09 of
the Indenture; provided further, that prior to the termination of FMDS as
Administrator pursuant to Section 8 of the Administration Agreement, FMDS shall
either (a) appoint a successor administrator to perform those duties of the
Administrator under the Administration Agreement not required to be performed by
U.S. Bank hereunder or (b) satisfy the Rating Agency Condition expressly
permitting FMDS to continue to perform those duties. Such successor
administrator shall be entitled to a fee as negotiated with FMDS at the time of
such appointment. Such negotiated fee shall be payable by FMDS.
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, Indenture, or Trust Agreement except for
such duties as are expressly described above.
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. Subject to the foregoing, U.S. Bank will be required to begin
performing its duties under this Back-up Agreement within 90 days of receiving
notice of FMDS' resignation or removal as Administrator under the Administration
Agreement. Out of pocket expenses incurred by U.S. Bank in connection with the
transition of services hereunder shall be borne by the Trust. Sections 2-19 of
the Administration Agreement will remain in full force and effect.
As consideration for U.S. Bank entering into this Back-up Agreement,
(i) U.S. Bank will (and the Trust hereby irrevocably directs U.S. Bank to)
invest all cash in the Trust Accounts (as such term is defined in the Indenture)
in First American Funds as long as First American Funds' annual investment
return (net of management fees) is not more than 0.25% lower than the investment
return (net of management fees) for funds of comparable size and investment risk
during the most recent prior twelve month period, as determined by the
Administrator; provided that the Administrator will provide instructions to U.S.
Bank as to the manner in which the cash in the Trust Accounts should be invested
if such investment threshold is not met; and (ii) upon the resignation or
removal of the Administrator, and notwithstanding the appointment of a successor
administrator, U.S. Bank shall be paid the Administration Fee pursuant to
Section 3(a) of the Administration Agreement.
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.
[Signature Pages Follow]
Please evidence your agreement with the terms set forth herein by
signing this letter below.
Sincerely,
THE NATIONAL COLLEGIATE STUDENT LOAN
TRUST 2004-1
By: WACHOVIA TRUST COMPANY, NATIONAL
ASSOCIATION, not in its individual
capacity but solely as Owner Trustee
By: /s/ Xxxxxxxx X. Xxxxxxx
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Name: Xxxxxxxx X. Xxxxxxx
Title: Vice President
FIRST MARBLEHEAD DATA SERVICES, INC.
By: /s/ Xxxxx X. Xxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxx
Title: President
ACCEPTED AND AGREED:
WACHOVIA TRUST COMPANY, NATIONAL ASSOCIATION,
not in its individual capacity but solely as Owner Trustee
By: /s/ Xxxxxxxx X. Xxxxxxx
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Name: Xxxxxxxx X. Xxxxxxx
Title: Vice President
U.S. BANK NATIONAL ASSOCIATION
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Veneta X. Xxxxxxx
Title: Vice President
BACK-UP NOTE ADMINISTRATION AGREEMENT
