Representations of Administrator Xxxxxx Xxx, Inc., as Administrator, makes the following representations on which the Issuer is deemed to have relied in acquiring the Trust Student Loans. The representations speak as of the execution and delivery of this Agreement and as of the Closing Date and shall survive the sale of the Trust Student Loans to the Eligible Lender Trustee on behalf of the Issuer and the pledge thereof to the Indenture Trustee pursuant to the Indenture.
Selection of Administrator The Parties have jointly selected CPT Group, Inc. to serve as the Administrator and verified that, as a condition of appointment, CPT Group, Inc. agrees to be bound by this Agreement and to perform, as a fiduciary, all duties specified in this Agreement in exchange for payment of Administration Expenses. The Parties and their Counsel represent that they have no interest or relationship, financial or otherwise, with the Administrator other than a professional relationship arising out of prior experiences administering settlements.
Duties of Administrator (a) DUTIES WITH RESPECT TO THE RELATED AGREEMENTS. Administrator shall consult with Owner Trustee regarding the duties of Issuer and Owner Trustee under the Related Agreements. Administrator shall monitor the performance of Issuer and shall advise Owner Trustee when action is necessary to comply with Issuer's or Owner Trustee's duties under the Related Agreements. Administrator shall prepare for execution by Issuer or Owner Trustee or shall cause the preparation by other appropriate persons of all such documents, reports, filings, instruments, orders, certificates and opinions as it shall be the duty of Issuer or Owner Trustee to prepare, file or deliver pursuant to any Related Agreement. In furtherance of the foregoing, Administrator shall take all appropriate action that it is the duty of Issuer or Owner Trustee to take pursuant to the Indenture including such of the foregoing as are required with respect to the following matters under the Indenture (references are to sections of the Indenture):
(i) the preparation of or obtaining of the documents and instruments required for execution, authentication and delivery of the Notes (whether upon initial issuance, transfer or exchange, or otherwise), if any, and delivery of the same to Indenture Trustee (if applicable) (SECTIONS 2.3, 2.5, 2.6, 2.11(c) or 2.14);
(ii) the duty to cause the Note Register to be kept, to appoint a successor Transfer Agent and Registrar, if necessary, and to give Indenture Trustee notice of any appointment of a new Transfer Agent and Registrar and the location, or change in location, of the Note Register (SECTION 2.5);
(iii) the furnishing of Indenture Trustee, Servicer, any Noteholder or the Paying Agent with the names and addresses of Noteholders after receipt of a written request therefor from Indenture Trustee, Servicer, any Noteholder or the Paying Agent, respectively, or as otherwise specified in the Indenture (SECTIONS 2.9(a) and 7.1);
(iv) the preparation, obtaining or filing of the instruments, opinions and certificates and other documents required for the release of collateral (SECTION 8.7);
(v) the duty to cause Issuer to maintain an office or agency within New York (and as otherwise set forth in an Indenture Supplement) and to give Indenture Trustee and the Noteholders notice of the location, or change in location, of such office or agency (SECTION 3.2);
(vi) the duty to direct Indenture Trustee to deposit with any Paying Agent the sums specified in the Indenture and the preparation of an Issuer Order directing the investment of such funds in Permitted Investments (SECTION 3.3);
(vii) the duty to cause newly appointed Paying Agents, if any, to deliver to Indenture Trustee the instrument specified in the Indenture regarding funds held in trust (SECTION 3.3);
(viii) the direction to Paying Agents to pay to Indenture Trustee all sums held in trust by such Paying Agents (SECTION 3.3);
(ix) the duty to cause Issuer to keep in full force its existence, rights and franchises as a Delaware business trust and the obtaining and preservation of Issuer's qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of the Indenture, the Notes, the Collateral and each other related instrument and agreement (SECTION 3.4);
(x) the preparation of all supplements, amendments, financing statements, continuation statements, if any, instruments of further assurance and other instruments necessary to protect, maintain and enforce the Collateral (SECTION 3.5);
(xi) the obtaining of the Opinion of Counsel on each Closing Date and the annual delivery of Opinions of Counsel as to the Collateral, and the annual delivery of the Officer's Certificate (SECTIONS 3.6 and 3.9);
(xii) the identification to Indenture Trustee in an Officer's Certificate of a Person with whom Issuer has contracted to assist it in performing its duties under the Indenture (SECTION 3.7(b));
(xiii) causing the delivery of notice by Indenture Trustee to the Rating Agencies of the occurrence of any Servicer Default of which Issuer has knowledge and the action, if any, being taken in connection with such default (SECTION 3.7(d));
(xiv) the delivery to Indenture Trustee, within 120 days after the end of each fiscal year of Issuer of an Officer's Certificate with respect to various matters relating to compliance with the Indenture (SECTION 3.9);
(xv) the preparation and obtaining of documents, certificates, opinions and instruments required in connection with the consolidation or merger by Issuer with or into any other Person or the sale of Issuer's assets substantially as an entirety to any Person (SECTION 3.10);
(xvi) the delivery of notice to Indenture Trustee and the Rating Agencies of (1) each Event of Default, (2) each default by Servicer or Transferor under the Transfer and Servicing Agreement (SECTION 3.18) and (3) each default by the RPA Seller under the Receivables Purchase Agreement;
(xvii) the monitoring of Issuer's obligations as to the satisfaction and discharge of the Indenture and the preparation of an Officer's Certificate and the obtaining of the Opinion of Counsel and the Independent Certificate relating thereto (SECTION 4.1);
(xviii) the compliance with any directive of Indenture Trustee with respect to the sale of the Collateral if an Event of Default shall have occurred and be continuing and the Notes have been accelerated (SECTION 5.5);
(xix) the preparation of an Officer's Certificate to be delivered to Indenture Trustee and the delivery of such Officer's Certificate to the Noteholders (SECTION 6.3(b));
(xx) the removal of Indenture Trustee, if necessary and in compliance with the Indenture, and the appointment of a successor (SECTION 6.8);
(xxi) the preparation of various reports to be filed with Indenture Trustee and the Commission, as applicable (SECTION 7.3);
(xxii) notifying Indenture Trustee if and when the Notes are listed on any stock exchange (SECTION 7.4);
(xxiii) the preparation of an Issuer Order and Officer's Certificate and the obtaining of an Opinion of Counsel and Independent Certificates, if necessary, for the release of the Collateral (SECTIONS 8.7 and 8.8);
(xxiv) the preparation of Issuer Orders, agreements, certificates, instruments, consents and other documents and the obtaining of Opinions of Counsel with respect to the execution of supplemental indentures (SECTIONS 3.7(f), 10.1, 10.2 and 10.3);
(xxv) the execution of new Notes conforming to any supplemental indenture (SECTION 10.6);
(xxvi) the preparation of all Officers' Certificates, Opinions of Counsel and, if necessary, Independent Certificates with respect to any requests by Issuer to Indenture Trustee to take any action under the Indenture (SECTION 12.1(a));
(xxvii) the preparation and delivery of Officers' Certificates and the obtaining of Independent Certificates, if necessary, in connection with the deposit of any Collateral or other property or securities with Indenture Trustee that is to be made the basis for the release of property from the lien of the Indenture (SECTION 12.1(b));
(xxviii) the preparation and delivery to Noteholders and Indenture Trustee of any agreements with respect to alternate payment and notice provisions (SECTION 12.6); and
(xxix) compliance with the provisions of the Transfer and Servicing Agreement, Indenture Supplement and Trust Agreement applicable to Issuer.
Other Activities of Administrator Nothing herein shall prevent the Administrator or its Affiliates from engaging in other businesses or, in its or their sole discretion, from acting as an administrator for any other person or entity, or in a similar capacity therefor, even though such person or entity may engage in business activities similar to those of the Issuer, the Owner Trustee or the Indenture Trustee.
Appointment of Administrator Each Trust hereby appoints EIS as Administrator of the Trust and each of its series listed on SCHEDULE A attached hereto on the terms and conditions set forth in this Agreement; and EIS hereby accepts such appointment and agrees to perform the services and duties set forth in Section 2 of this Agreement in consideration of the compensation provided for in Section 4 hereof.
RESPONSIBILITY OF ADMINISTRATOR A. The Company shall not be liable for any error of judgment or mistake of law or for any loss suffered by the Investment Company in connection with the matters to which this Agreement relates, except a loss resulting from willful misfeasance, bad faith or gross negligence on its part in the performance of its duties or from reckless disregard by it of its obligations and duties under this Agreement. The Company shall be entitled to rely on and may act upon advice of counsel (who may be counsel for the Investment Company) on all matters, and shall be without liability for any action reasonably taken or omitted pursuant to such advice. Any person, even though also an officer, director, trustee, partner, employee or agent of the Company, who may be or become an officer, director, trustee, partner, employee or agent of the Investment Company, shall be deemed, when rendering services to the Investment Company or acting on any business of the Investment Company (other than services or business in connection with the duties of the Company hereunder) to be rendering such services to or acting solely for the Investment Company and not as an officer, director, trustee, partner, employee or agent or one under the control or direction of the Company even though paid by the Company.
B. The Company shall be kept indemnified by the Investment Company and be without liability for any action taken or thing done by it in performing the Administrative Services in accordance with the above standards. In order that the indemnification provisions contained in this Article 10 shall apply, however, it is understood that if in any case the Investment Company may be asked to indemnify or hold the Company harmless, the Investment Company shall be fully and promptly advised of all pertinent facts concerning the situation in question, and it is further understood that the Company will use all reasonable care to identify and notify the Investment Company promptly concerning any situation which presents or appears likely to present the probability of such a claim for indemnification against the Investment Company. The Investment Company shall have the option to defend the Company against any claim which may be the subject of this indemnification. In the event that the Investment Company so elects, it will so notify the Company and thereupon the Investment Company shall take over complete defense of the claim, and the Company shall in such situation initiate no further legal or other expenses for which it shall seek indemnification under this Article. The Company shall in no case confess any claim or make any compromise in any case in which the Investment Company will be asked to indemnify the Company except with the Investment Company's written consent. SECTION THREE: TRANSFER AGENCY SERVICES.
REPRESENTATIONS OF ADVISER The Adviser represents, warrants and covenants that:
A. The Adviser (i) is registered as an investment adviser under the Advisers Act and will continue to be so registered for so long as this Agreement remains in effect; (ii) is not prohibited by the Investment Company Act, the Advisers Act or other law, regulation or order from performing its obligations under this Agreement; (iii) has met, and will seek to continue to meet for so long as this Agreement is in effect, any other applicable federal or state requirements, or the applicable requirements of any regulatory or industry self-regulatory agency, necessary to be met in order to perform its obligations under this Agreement; (iv) has the power and authority to enter into and perform its obligations under this Agreement; and (v) will promptly notify the Sub-Adviser of the occurrence of any event that would disqualify the Adviser from serving as the investment adviser of an investment company pursuant to Section 9(a) of the Investment Company Act or otherwise.
B. The Adviser has adopted a written code of ethics complying with the requirements of Rule 17j-1 under the Investment Company Act and will provide the Sub-Adviser with a copy of such code of ethics.
C. The Adviser will also promptly notify the Sub-Adviser if it is served or otherwise receives notice of any action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, public board or body, involving the affairs of the Portfolio(s) and affecting the Sub-Adviser; provided, however, that routine regulatory examinations not involving the Sub-Adviser shall not be required to be reported by this provision.
D. The Adviser is registered as a commodity pool operator (“CPO”) under the Commodity Exchange Act (“CEA”) and is a member of the National Futures Association (“NFA”). With respect to each of the Portfolio(s), the Adviser has claimed either (1) the CPO exclusion in Commodity Futures Trading Commission (“CFTC”) Regulation 4.5 with respect to the Portfolio and, in such case, the Adviser will file the notice required under CFTC Regulation 4.5 with respect to the Portfolio and will annually reaffirm such notice filing on behalf of the Portfolio as required by CFTC Regulation 4.5; or (2) the relief in CFTC Regulation 4.12(c)(1)(ii) with respect to the Portfolio. Information regarding whether the Adviser has claimed either the CPO exclusion in CFTC Regulation 4.5 or the relief in CFTC Regulation 4.12(c)(1)(ii) with respect to a Portfolio is available on the NFA’s website at xxx.xxx.xxxxxxx.xxx. The Adviser further represents, warrants and covenants that each of the Portfolio(s) is, and until this Agreement is terminated will remain, an “eligible contract participant” within the meaning of Section 1a(18) of the CEA.
Engagement of Administrator The Issuer and the Owner Trustee engage the Administrator to perform the obligations of the Issuer and the Owner Trustee under the Transaction Documents as described in this Agreement, and the Administrator accepts the engagement.
Obligations of Adviser The Adviser agrees to provide or complete, as the case may be, the following prior to the commencement of the Sub-Adviser’s investment advisory services as specified under this Agreement:
a) A list of first tier affiliates and second tier affiliates (i.e., affiliates of affiliates) of the Fund;
b) A list of restricted securities for each Fund (including CUSIP, Sedol or other appropriate security identification);
c) A copy of the current compliance procedures for each Fund; and
d) A list of legal and compliance contacts. The Adviser also agrees to promptly update the above referenced items in order to ensure their accuracy, completeness and/or effectiveness.
Independence of 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 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 Administrator shall have no authority to act for or represent the Issuer or the Owner Trustee in any way and shall not otherwise be deemed an agent of the Issuer or the Owner Trustee.
