EXHIBIT 10.15
EXECUTION COPY
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CALCULATION AGENT AGREEMENT
by and among
CITIGROUP GLOBAL MARKETS INC.
as Calculation Agent,
EDUCATION FUNDING CAPITAL TRUST-II
as Issuer
and
FIFTH THIRD BANK
as Indenture Trustee
Dated as of April 1, 2003
relating to
Education Funding Capital Trust-II
$500,000,000 Education Loan Backed Notes
consisting of
Education Loan Backed Notes, Series A-1
Education Loan Backed Notes, Series A-2
Education Loan Backed Notes, Series A-3
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CALCULATION AGENT AGREEMENT
THIS CALCULATION AGENT AGREEMENT dated as of April 1, 2003 is by and among
CITIGROUP GLOBAL MARKETS INC. ("Citigroup"), EDUCATION FUNDING CAPITAL TRUST-II
(the "Issuer") and FIFTH THIRD BANK, as Indenture Trustee (the "Indenture
Trustee"), and provides for Citigroup to act as the Calculation Agent as
provided for and defined in the Indenture of Trust dated as of April 1, 2003
(the "Indenture") among the Issuer, the Indenture Trustee and Fifth Third Bank,
as Trust Eligible Lender Trustee (the "Trust Eligible Lender Trustee"), with
respect to the Issuer's Education Loan Backed Notes, Series A-1, Series A-2, and
Series A-3 (the "LIBOR Notes"). All capitalized terms used herein and not
defined herein shall have the meanings set forth in the Indenture.
1. Appointment of Agent; Responsibilities of Agent. Subject to the
terms and conditions herein contained, the Issuer hereby appoints Citigroup as
the Calculation Agent, and Citigroup hereby accepts such appointment as
Calculation Agent with respect to the duties of the Calculation Agent set forth
in the Indenture. In its capacity as Calculation Agent, Citigroup shall perform
the duties set forth for the Calculation Agent in the Indenture, including but
not limited to, determining the applicable LIBOR Rate for the LIBOR Notes as set
forth in Section 1.01(c) of the Indenture, and (ii) providing notification of
such matters to the Issuer and the Indenture Trustee. The Calculation Agent
shall be obligated only to perform such duties as are specifically set forth in
the Indenture and no other duties or obligations on the part of the Calculation
Agent, in its capacity as such, shall be implied by this Calculation Agent
Agreement. The Calculation Agent may rely upon, and is authorized to honor, any
telephonic requests or directions which the Calculation Agent reasonably
believes in good faith to emanate from an Authorized Officer of the Issuer,
regardless of the source of such request or direction. Any telephonic request or
direction to the Calculation Agent shall promptly be confirmed in writing;
provided, however, that failure to receive any such notice shall not affect the
authority of the Calculation Agent to rely and act upon such request or
direction.
2. Conditions to Calculation Agent's Obligations. The obligations of
Citigroup under this Calculation Agent Agreement have been undertaken in
reliance on, and shall be subject to, the due performance by the Issuer of its
obligations and agreements to be performed hereunder and under the Indenture.
3. Term and Termination of Calculation Agent Agreement. This
Calculation Agent Agreement shall become effective upon the Closing Date and
shall continue in full force and effect up to and including the date on which
the LIBOR Notes are no longer Outstanding, subject to the right of Citigroup or
the Issuer to cancel this Calculation Agent Agreement at any time upon the
giving of not less than 60 days prior written notice. Citigroup agrees and the
Issuer agrees to send a copy of any notice of termination of this Calculation
Agent Agreement to the Indenture Trustee at its address referred to in Section
8.01 of the Indenture.
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4. Payment of Fees. In consideration of the services to be performed
by Citigroup under this Calculation Agent Agreement, it is understood and agreed
that the Issuer shall pay to Citigroup for services performed an annual fee
equal to $1.00, to be paid in advance on the Closing Date and on the fifth
Business Day of each June thereafter, commencing June 2004. It is understood and
agreed that the payment of the fees referred to herein shall be made without
further notice from Citigroup.
5. Indemnification. (a) The Issuer agrees to indemnify and hold
harmless Citigroup, and each person, if any, who controls Citigroup within the
meaning of Section 15 of the Securities Act of 1933, as amended, against any and
all losses, claims, damages, liabilities and expenses (including reasonable
costs of investigation) incurred by Citigroup as a result of acting as
Calculation Agent pursuant to this Calculation Agent Agreement, unless such
losses, claims, damages, liabilities or expenses are caused by the negligence or
willful misconduct of Citigroup.
(b) If any action or claim shall be brought or asserted against
Citigroup or any person so controlling Citigroup to which this Section 5 is
applicable, and in respect of which indemnity may be sought from the Issuer,
then Citigroup or the controlling person, as the case may be, shall promptly
notify the Issuer in writing, and the Issuer shall assume the defense thereof,
including the employment of counsel and the payment of all expenses. Citigroup
or the controlling person, as the case may be, shall have the right to employ
separate counsel in any such action and participate in the defense thereof, but
the fees and expenses of such counsel shall be at the expense of Citigroup or
the controlling person, as the case may be, unless (i) the employment thereof
has been specifically authorized by the Issuer, (ii) the Issuer has failed to
assume the defense and employ counsel, or (iii) the named parties to any such
action (including any impleaded parties) include both Citigroup or the
controlling person and the Issuer, and Citigroup or the controlling person shall
have been advised by counsel that there may be one or more legal defenses
available to it which are different from or additional to those available to the
Issuer and that representation of Citigroup or the controlling person and the
Issuer by counsel employed by the Issuer would be inappropriate under applicable
standards of professional conduct (in which case the Issuer shall not have the
right to assume the defense of such action, on behalf of Citigroup or the
controlling person; it being understood, however, that the Issuer shall not, in
connection with any such action or separate but substantially similar or related
actions arising out of the same general allegations or circumstances, be liable
for the reasonable fees and expenses of more than one separate firm of attorneys
at any point in time for Citigroup and the controlling person, which firm shall
be designated in writing Citigroup). The Issuer shall not be liable for any
settlement of any such action effected without its consent, but if settled with
the consent of the Issuer, or if there is a final judgment for the plaintiff in
any such action, the Issuer shall indemnify and hold harmless any indemnified
person from and against any loss or liability by reason of such settlement or
judgment.
(c) The indemnity contained in this Section 5 shall remain operative
and in full force and effect whether or not this Calculation Agent Agreement has
otherwise been terminated.
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6. Miscellaneous. (a) Except as otherwise specifically provided in
this Calculation Agent Agreement, all notices, demands and formal actions under
this Calculation Agent Agreement shall be in writing and mailed, telegraphed or
delivered to:
CALCULATION AGENT: INDENTURE TRUSTEE:
Citigroup Global Markets Inc. Fifth Third Bank
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx XX 10AT60
Xxx Xxxx, Xxx Xxxx 00000 00 Xxxxxxxx Xxxxxx Xxxxx
Xxxxxxxxx: ______________________ Xxxxxxxxxx, Xxxx 00000
Telephone Number: _______________ Attention: Corporate Trust
Facsimile Number: _______________ Administration
Telephone: 000.000.0000
Facsimile: 513.534.6785
ISSUER:
Education Funding Capital Trust-II
c/o Fifth Third Bank
MD 10AT60
00 Xxxxxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxx 00000
Attention: Corporate Trust Administration
Telephone: 000.000.0000
Facsimile: 513.534.6785
with a copy to:
Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Trust Administration
Telephone: 000.000.0000
Facsimile: 203.975.6299
Citigroup, the Issuer and the Indenture Trustee may designate, by written notice
given under this Calculation Agent Agreement, other addresses to which
subsequent notices, requests, reports or other communications shall be directed.
(b) This Calculation Agent Agreement will inure to the benefit of and
be binding upon the Issuer, Citigroup, and the Indenture Trustee, and their
respective successors and assigns, and will not confer any rights upon any other
person, partnership, association or Issuer other than persons, if any,
controlling Citigroup, within the meaning of the Securities Act of 1933, as
amended
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(to the extent provided in Section 5 hereof); provided, however, that
this Calculation Agent Agreement shall not be assignable by any party hereto
without the prior written consent of the others.
(c) Notwithstanding anything to the contrary herein or in the
Indenture, any obligation of the Issuer created by or arising out of this
Agreement shall be a limited obligation of the Issuer, payable from the Trust
Estate available therefor under and in accordance with the Indenture and shall
not constitute a charge against the general credit of the Issuer.
(d) Section headings have been inserted in this Calculation Agent
Agreement as a matter of convenience of reference only, and it is agreed that
such section headings are not a part of this Calculation Agent Agreement and
will not be used in the interpretation of any provisions of this Calculation
Agent Agreement.
(e) If any provision of this Calculation Agent Agreement shall be
held or deemed to be or shall, in fact, be invalid, inoperative or unenforceable
as applied in any particular case in any jurisdiction or jurisdictions, or in
all jurisdictions because it conflicts with any provisions of any constitution,
statute, rule of public policy, or any other reason, such circumstances shall
not have the effect of rendering the provision in question invalid, inoperative
or unenforceable in any other case or circumstance, or of rendering any other
provision or provisions of this Calculation Agent Agreement invalid, inoperative
or unenforceable to any extent whatever.
(f) This Calculation Agent Agreement may be executed in several
counterparts, each of which shall be regarded as an original and all of which
shall constitute one and the same document.
(g) This Calculation Agent Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
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IN WITNESS WHEREOF, the parties hereto have caused this Calculation
Agreement to be duly executed and delivered by their proper and duly authorized
officers as of the date first above written.
EDUCATION FUNDING CAPITAL TRUST-II,
as Issuer, by FIFTH THIRD BANK, not in its
individual capacity, but solely as Co-Owner Trustee
on behalf of the Issuer
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
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Title: Assistant Vice President
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FIFTH THIRD BANK, as Indenture Trustee
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
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Title: Assistant Vice President
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CITIGROUP GLOBAL MARKETS INC., as Market Agent
By: /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
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Title: Managing Director
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