EXHIBIT 10.9
EXECUTION COPY
--------------------------------------------------------------------------------
ADMINISTRATION AGREEMENT
between
EDUCATION FUNDING CAPITAL I, LLC
as Depositor
and
EDUCATION LENDING SERVICES, INC.
as Administrator
dated as of April 1, 2003
--------------------------------------------------------------------------------
TABLE OF CONTENTS
Page
Section 1. Definitions.................................................................................... 1
Section 2. Depositor Documents............................................................................ 2
Section 3. Transfer and Sale Agreements................................................................... 3
Section 4. Other Duties with Respect to the Depositor Documents........................................... 4
Section 5. Higher Education Act........................................................................... 4
Section 6. Other Administrative Services.................................................................. 4
Section 7. Exceptions..................................................................................... 6
Section 8. Employees; Offices............................................................................. 6
Section 9. Non-Ministerial Matters........................................................................ 6
Section 10. Compensation................................................................................... 6
Section 11. Representations and Warranties of the Depositor................................................ 7
Section 12. Representations and Warranties of the Administrator............................................ 8
Section 13. Term........................................................................................... 9
Section 14. Obligation to Supply Information............................................................... 9
Section 15. Liability of Administrator..................................................................... 9
Section 16. Merger or Consolidation of, or Assumption of the Obligations
of, the Administrator..........................................................................10
Section 17. Administrator Default..........................................................................10
Section 18. Appointment of Successor.......................................................................11
Section 19. Reliance on Information Obtained from Third Parties............................................12
Section 20. Notices........................................................................................12
Section 21. Amendment......................................................................................13
Section 22. Assignment.....................................................................................13
Section 23. Independence of Administrator..................................................................13
Section 24. No Joint Venture...............................................................................13
Section 25. Other Activities of Administrator..............................................................13
Section 26. No Petition....................................................................................13
Section 27. Limited Recourse...............................................................................14
Section 28. Governing Law..................................................................................14
Section 29. Entire Agreement...............................................................................14
Section 30. Successors; Counterparts.......................................................................14
Section 31. Captions.......................................................................................14
i
ADMINISTRATION AGREEMENT
THIS ADMINISTRATION AGREEMENT (this "Administration Agreement") is made
as of April 1, 2003 between EDUCATION FUNDING CAPITAL I, LLC, a Delaware limited
liability company (the "Depositor") and EDUCATION LENDING SERVICES, INC., a
Delaware corporation, as administrator (the "Administrator") under the
circumstances set forth below. (Capitalized terms used but not otherwise defined
herein shall have the meanings ascribed to such terms in the Indenture of Trust
dated as of April 1, 2003 (the "Indenture") among Education Funding Capital
Trust-II and Fifth Third Bank, as indenture trustee and Fifth Third Bank, as
trust eligible lender trustee.)
RECITALS
A. The Depositor is engaged in the acquisition from the Seller of
Financed Student Loans.
B. Pursuant to the Basic Documents to which the Depositor is a
party (collectively, the "Depositor Documents"), the Depositor is obligated to
perform certain duties and responsibilities under the Depositor Documents and in
connection with the assets and obligations thereunder.
C. The Depositor has requested that the Administrator provide
advice and assistance to the Depositor and perform various services for and
duties of the Depositor, including the duties and responsibilities of the
Depositor under the Depositor Documents and in connection with the assets and
obligations thereunder.
D. The Depositor desires to avail itself of the experience, advice
and assistance of the Administrator and to have the Administrator perform
various financial, statistical, accounting and other services for and duties of
the Depositor, and the Administrator has the capacity and is willing to furnish
such services on the terms and conditions set forth herein.
NOW THEREFORE, in consideration of the mutual promises and covenants set
forth herein and other valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
Section 1. Definitions. For all purposes of this Administration
Agreement, the following terms shall have the following meanings:
"Affiliate" shall mean any Person directly or indirectly controlling or
controlled by, or under direct or indirect common control with, the
Administrator or the Depositor. For purposes of this definition, "control" means
the power to direct management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise.
"Payment Date" shall mean the last Business Day of each Month.
Section 2. Depositor Documents. The Administrator shall cause the
duties and responsibilities of the Depositor under the Depositor Documents to be
performed, including but not limited to the actions set forth below. The
Administrator shall advise the Depositor when action by the Depositor is
necessary to comply with the Depositor's duties under the Depositor Documents
and the agreements relating thereto. The Administrator shall prepare for
execution, if required, by the Depositor or shall cause the preparation by other
appropriate Persons of all such documents, reports, filings, instruments,
certificates and opinions as it shall be the duty of the Depositor to prepare,
file or deliver pursuant to the Depositor Documents. In furtherance of the
foregoing, the Administrator shall take all appropriate action, including but
not limited to, the following:
(a) obtaining and preserving the Depositor'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 Depositor Documents;
(b) arranging for the delivery of any opinions of counsel and
certificates of officers of the Depositor and other statements
required under the relevant provisions of the Depositor
Documents;
(c) monitoring the Depositor's obligations as to the satisfaction
and discharge of the Depositor Documents and preparing any
certificates of officers of the Depositor and obtaining any
opinions of counsel required in connection therewith;
(d) taking such actions as may be required of the Depositor under
the Depositor Documents upon the occurrence and continuance of
an event of default thereunder;
(e) preparing and, after execution by the Depositor, filing with the
Commission and any applicable State agencies, documents required
to be filed on a periodic basis with, and summaries thereof as
may be required by rules and regulations prescribed by, the
Commission and any applicable State agencies;
(f) taking such actions as may be required of the Depositor under
any agreement between the Depositor and other parties relating
to the Depositor Documents;
(g) pursuant to the Master Servicing Agreement, providing to the
Master Servicer (or the Master Servicer's bailee) from time to
time, as necessary, and requiring that the Master Servicer (or
the Master Servicer's bailee) maintain physical custody and
possession of, documentation and information relating to Student
Loans transferred to the Depositor and, on and after each
applicable date on which Student Loans are to be purchased (the
"Loan Purchase Date"), Student Loans sold and transferred to
2
the Depositor on each such Loan Purchase Date, including the
documents evidencing such Student Loans and such additional
documentation or information relating to such Student Loans as
is reasonably required for the Student Loans to be properly
serviced by the Master Servicer;
(h) cause to be paid to the Seller on behalf of the Depositor solely
from funds of the Depositor all amounts to be paid by the
Depositor pursuant to the Transfer and Sale Agreements;
(i) promptly after each Loan Purchase Date, providing the Master
Servicer with all information as may be required under the
Master Servicing Agreement;
(j) causing to be paid to the Master Servicer on behalf of the
Depositor solely from funds of the Depositor the Servicing Fee;
(k) performing all audits of records and accounts that the Depositor
from time to time may be permitted or required to perform under
the Master Servicing Agreement;
(l) preparing all other documents, reports, filings, instruments,
certificates and opinions as it is the duty of the Depositor to
prepare, file or deliver pursuant to the Depositor Documents;
and
(m) in the event of the default of the Master Servicer under the
Master Servicing Agreement, or default of any other party to any
other Depositor Document, taking all reasonable steps available
to enforce the Depositor's rights under such documents in
respect of such default.
Section 3. Transfer and Sale Agreements. The Administrator shall
take the actions necessary to cause the duties of the Depositor to be carried
out under the provisions of Transfer and Sale Agreements entered into by the
Depositor. The Administrator also shall enforce the rights of the Depositor
under the applicable provisions of such Transfer and Sale Agreements to require
the Seller to repurchase certain Student Loans that have been transferred to the
Depositor, including but not limited to providing notice to the Master Servicer
of each such repurchase request, endorsing to the Master Servicer each Student
Loan to be repurchased by the Seller and taking all other actions necessary to
enforce the Depositor's rights of recourse against the Seller.
3
Section 4. Other Duties with Respect to the Depositor Documents.
(a) In addition to the duties of the Administrator set forth above,
the Administrator shall perform such calculations and shall prepare for
execution by the Depositor or shall cause the preparation by other appropriate
Persons of all such documents, reports, filings, instruments, certificates and
opinions as it shall be the duty of the Depositor to prepare, file or deliver
pursuant to the Depositor Documents, and shall take all appropriate action that
it is the duty of the Depositor to take pursuant to the Depositor Documents. The
Administrator shall administer, perform or supervise the performance of such
other activities in connection with the Depositor Documents as the Depositor is
obligated to perform and are not covered by any of the foregoing provisions and
as are reasonably within the capability of the Administrator.
(b) In carrying out the foregoing duties or any of its other
obligations under this Administration Agreement, the Administrator may enter
into transactions with or otherwise deal with any of its Affiliates; provided,
however, that the terms of any such transactions or dealings shall be, in the
Administrator's opinion, no less favorable to the Depositor than would be
available from unaffiliated parties.
Section 5. Higher Education Act. The Administrator shall take all
actions that are necessary to cause the Issuer to comply with the requirements
of the Act and the applicable Guarantee Agencies with respect to Student Loans
originated under the Act.
Section 6. Other Administrative Services. The Depositor hereby
authorizes the Administrator, as its agent, to perform, and the Administrator
hereby agrees to perform, all administrative services necessary or desirable in
connection with the Depositor's existence as a bankruptcy-remote special purpose
entity holding the assets described hereunder, including but not limited to the
following:
(a) subject to the directions of the authorized representatives of
the Depositor, carrying out and performing the day-to-day
business activities of the Depositor;
(b) providing, or causing to be provided, all clerical and
bookkeeping services necessary and appropriate for the
Depositor, including, without limitation, the following
services:
(i) maintaining general accounting records of the Depositor,
and preparing for audit such periodic financial
statements as may be necessary or appropriate;
(ii) maintaining records of deposit accounts of the Depositor
established under the Depositor Documents or otherwise,
authorizing withdrawals from such accounts on behalf of
the Depositor and taking all other actions on behalf of
the Depositor as may be necessary with respect to such
accounts;
4
(iii) (A) preparing for execution by the Depositor and causing
to be filed on behalf of the Depositor such income,
franchise or other tax returns of the Depositor as shall
be required to be filed by applicable law, and (B)
causing to be paid by the Depositor, solely out of funds
of the Depositor, any taxes required to be paid by the
Depositor by applicable law;
(iv) assisting in preparing for execution by the Depositor
amendments to and waivers under the Depositor Documents
and any other documents or instruments deliverable by
the Depositor thereunder or in connection therewith;
(v) holding, maintaining and preserving executed copies of
the Depositor Documents (to the extent applicable) and
other documents or instruments executed by the Depositor
thereunder or in connection therewith;
(vi) assisting in giving such other notices, consents and
other communications that the Depositor may from time to
time be required or permitted to give under any of the
Depositor Documents or other documents executed by the
Depositor thereunder or in connection therewith;
(vii) facilitating the annual audit of the financial
statements of the Depositor; and
(viii) taking such other actions as may be incidental or
reasonably necessary to accomplish the actions of the
Administrator authorized under this subsection (b).
(c) assisting the Depositor in carrying out the investment and
reinvestment of the funds of the Depositor in accordance with
the investment policies adopted by the Depositor from time to
time;
(d) preparing or updating any offering memorandum in connection with
the performance by the Depositor through the Administrator of
its obligations under the Depositor Documents or other documents
executed thereunder or in connection therewith; and
(e) undertaking such other administrative services as may be
required by the Depositor.
If the Administrator or the Depositor deems it necessary or desirable,
any of the foregoing administrative services may be subcontracted by the
Administrator. Costs and expenses associated with such subcontracting incurred
by the Administrator shall be paid by the Depositor in accordance with Section
10 hereof.
5
Section 7. Exceptions. Notwithstanding anything to the contrary in
this Administration Agreement, the Administrator shall not be obligated to, and
shall not take any action that the Depositor directs the Administrator not to
take on the Depositor's behalf.
Section 8. Employees; Offices. All services to be furnished by the
Administrator under this Administration Agreement may be furnished by an officer
or employee of the Administrator or any other Person or agent designated or
retained by the Administrator.
The Administrator agrees to provide office space, together with
appropriate materials and any necessary support personnel, for performing the
day-to-day business activities of the Depositor, all for the compensation
provided in Section 10 hereof.
Section 9. Non-Ministerial Matters. With respect to matters that in
the reasonable judgment of the Administrator are non-ministerial, the
Administrator shall not take any action unless within a reasonable time before
the taking of such action, the Administrator shall have notified the Depositor
of the proposed action and the Depositor shall not have withheld consent or
provided an alternative direction. For the purpose of the preceding sentence,
"non-ministerial matters" shall include:
(a) the initiation of any claim or lawsuit by the Depositor and the
compromise of any action, claim or lawsuit brought by or against
the Depositor (other than in connection with the collection of
the Student Loans); or
(b) the amendment, change or modification of the Depositor
Documents;
Section 10. Compensation. Subject to Section 4.07 of the Indenture,
on each Payment Date, the Depositor shall pay to the Administrator, as
compensation for its services specified hereunder, a fee in the amount of 0.01%
(on a per annum basis) of the average principal balance of the Financed Student
Loans during the preceding calendar month. If at any time the Depositor requests
the Administrator to perform any additional services not specified hereunder,
the Depositor shall pay the Administrator such additional fees in respect
thereof as shall be agreed to by the Depositor and the Administrator. The
Depositor agrees to reimburse the Administrator for all reasonable expenses,
disbursements and advances incurred or made by the Administrator in connection
with the performance of this Administration Agreement, including, but not
limited to, the fees and expenses of subcontracting, any independent accountants
and outside counsel, which reimbursement shall relate to amounts incurred in a
calendar month and shall be payable by the Depositor to the Administrator on the
next succeeding Payment Date. In addition, to the extent that any officers of
the Depositor are also officers of the Administrator, the Depositor shall also
pay to the Administrator a management fee in order for the Administrator to
compensate such officers for their services for the Depositor.
The Depositor and the Administrator agree that payments to the
Administrator shall be made out of the general funds of the Depositor and not
out of any funds held under the Indenture.
6
Section 11. Representations and Warranties of the Depositor. The
Depositor makes the following representations:
(a) Organization and Good Standing. The Depositor is duly organized
and validly existing with the power and authority to own its properties and to
conduct its business as such properties are currently owned and such business is
presently conducted.
(b) Power and Authority. The Depositor has the power and authority
to execute and deliver this Administration Agreement and to carry out its terms,
and the execution, delivery and performance of this Administration Agreement
have been duly authorized by the Depositor by all necessary action.
(c) Binding Obligation. This Administration Agreement constitutes a
legal, valid and binding obligation of the Depositor enforceable in accordance
with its terms, subject to applicable bankruptcy, insolvency, reorganization and
similar laws relating to creditors' rights generally and subject to general
principles of equity.
(d) No Violation. The consummation of the transactions contemplated
by this Administration Agreement and the fulfillment of the terms hereof or
thereof do not conflict with, result in any breach of any of the terms and
provisions of, nor constitute (with or without notice or lapse of time or both)
a default under, the Certificate of Formation or the Limited Liability Company
Agreement of the Depositor, or any indenture, agreement or other instrument to
which the Depositor is a party or by which it or its properties are bound; nor
result in the creation or imposition of any lien upon any of its properties
pursuant to the terms of any such indenture, agreement or other instrument; nor
violate any law or, to the knowledge of the Depositor, any order, rule or
regulation applicable to the Depositor of any court or of any federal or state
regulatory body, administrative agency or other governmental instrumentality
having jurisdiction over the Depositor or its properties.
(e) No Proceedings. There are no proceedings or investigations
pending against the Depositor or, to its best knowledge, threatened against the
Depositor, before any court, regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over the Depositor or its
properties: (i) asserting the invalidity of this Administration Agreement, (ii)
seeking to prevent the consummation of any of the transactions contemplated by
this Administration Agreement or (iii) seeking any determination or ruling that
could reasonably be expected to have a material and adverse effect on the
performance by the Depositor of its obligations under, or the validity or
enforceability of, this Administration Agreement.
(f) All Consents. All authorizations, consents, orders or approvals
of or registrations or declarations with any court, regulatory body,
administrative agency or other governmental instrumentality required to be
obtained, effected or given by the Depositor in connection with the execution
and delivery by the Depositor of this Administration Agreement and the
performance by
7
the Depositor of the transactions contemplated by this Administration Agreement
have been duly obtained, effected or given and are in full force and effect.
Section 12. Representations and Warranties of the Administrator. The
Administrator makes the following representations:
(a) Organization and Good Standing. The Administrator is duly
organized and validly existing with the power and authority to own its
properties and to conduct its business as such properties are currently owned
and such business is presently conducted.
(b) Power and Authority. The Administrator has the power and
authority to execute and deliver this Administration Agreement and to carry out
its terms, and the execution, delivery and performance of this Administration
Agreement have been duly authorized by the Administrator by all necessary
corporate action.
(c) Binding Obligation. This Administration Agreement constitutes a
legal, valid and binding obligation of the Administrator enforceable in
accordance with its terms, subject to applicable bankruptcy, insolvency,
reorganization and similar laws relating to creditors' rights generally and
subject to general principles of equity.
(d) No Violation. The consummation of the transactions contemplated
by this Administration Agreement and the fulfillment of the terms hereof or
thereof do not conflict with, result in any breach of any of the terms and
provisions of, nor constitute (with or without notice or lapse of time or both)
a default under, the Articles of Incorporation or By-laws of the Administrator,
or any indenture, agreement or other instrument to which the Administrator is a
party or by which it or its properties are bound; nor result in the creation or
imposition of any lien upon any of its properties pursuant to the terms of any
such indenture, agreement or other instrument; nor violate any law or, to the
knowledge of the Administrator, any order, rule or regulation applicable to the
Administrator of any court or of any federal or state regulatory body,
administrative agency or other governmental instrumentality having jurisdiction
over the Administrator or its properties.
(e) No Proceedings. There are no proceedings or investigations
pending against the Administrator or, to its best knowledge, threatened against
the Administrator, before any court, regulatory body, administrative agency or
other governmental instrumentality having jurisdiction over the Administrator or
its properties: (i) asserting the invalidity of this Administration Agreement,
(ii) seeking to prevent the consummation of any of the transactions contemplated
by this Administration Agreement or (iii) seeking any determination or ruling
that could reasonably be expected to have a material and adverse effect on the
performance by the Administrator of its obligations under, or the validity or
enforceability of, this Administration Agreement.
(f) All Consents. All authorizations, consents, orders or approvals
of or registrations or declarations with any court, regulatory body,
administrative agency or other governmental
8
instrumentality required to be obtained, effected or given by the Administrator
in connection with the execution and delivery by the Administrator of this
Administration Agreement and the performance by the Administrator of the
transactions contemplated by this Administration Agreement have been duly
obtained, effected or given and are in full force and effect.
Section 13. Term. Subject to the terms hereof, the Administrator may
resign at any time. The Administrator or the Depositor may terminate this
Administration Agreement upon at least 45 days' written notice to the other
party.
Section 14. Obligation to Supply Information. The Depositor shall
prepare and supply, or cause the other parties to the Depositor Documents to
prepare and supply, the Administrator with such information regarding the
performance of the Depositor Documents as the Administrator may from time to
time reasonably request in connection with the performance of its obligations
hereunder.
Section 15. Liability of Administrator. The Administrator shall be
liable in accordance herewith only to the extent of the obligations specifically
undertaken by the Administrator under this Administration Agreement.
The Administrator shall indemnify, defend and hold harmless the
Depositor, and any of the officers, directors, employees and agents of the
Depositor, from and against any and all costs, expenses, losses, claims, damages
and liabilities to the extent that any such cost, expense, loss, claim, damage
or liability arose out of, or was imposed upon the Depositor through, the gross
negligence, willful misfeasance or bad faith of the Administrator in the
performance of its duties under this Administration Agreement or by reason of
reckless disregard of its obligations and duties hereunder or thereunder. The
Depositor shall notify the Administrator promptly of any claim for which it may
seek indemnity. The Administrator shall defend the claim and the Administrator
shall not be liable for the legal fees and expenses of the Depositor after it
has assumed such defense.
For purposes of this Section 15, in the event of the termination of the
rights and obligations of the Administrator (or any successor thereto pursuant
to Section 18 hereof) pursuant to Section 13 hereof or the resignation by such
Administrator pursuant to this Administration Agreement, unless the Depositor
elects not to appoint a successor Administrator, such Administrator shall be
deemed to be the Administrator pending appointment of a successor Administrator
pursuant to Section 18 hereof.
Indemnification under this Section 15 shall survive the termination of
this Administration Agreement and shall include reasonable fees and expenses of
counsel and expenses of litigation. If the Administrator has made any indemnity
payments pursuant to this Section 15 and the Depositor thereafter collects any
of such amounts from others, the Depositor promptly shall repay such amounts to
the Administrator, without interest.
9
Neither the Administrator nor any of its directors, officers, employees
or agents shall be under any liability to the Depositor except as provided under
this Administration Agreement for any action taken or for refraining from the
taking of any action pursuant to this Administration Agreement or for errors in
judgment; provided, however, that these provisions shall not protect the
Administrator or any such Person against any liability that would otherwise be
imposed by reason of willful misfeasance, bad faith or negligence in the
performance of duties or by reason of reckless disregard of obligations and
duties under this Administration Agreement. The Administrator and any of its
directors, officers, employees or agents may rely in good faith on the advice of
counsel or on any document of any kind, prima facie properly executed and
submitted by any Person respecting any matters arising hereunder.
Except as provided in this Administration Agreement, the Administrator
shall not be under any obligation to appear in, prosecute or defend any legal
action that shall not be incidental to its duties hereunder and that in its
opinion may involve it in any expense or liability; provided, however, that the
Administrator may undertake any reasonable action that it may deem necessary or
desirable in respect of this Administration Agreement, the Depositor Documents
and the rights and duties of the parties to this Administration Agreement and
the Depositor Documents.
Section 16. Merger or Consolidation of, or Assumption of the
Obligations of, the Administrator. Any Person (a) into which the Administrator
may be merged or consolidated, (b) that may result from any merger or
consolidation to which the Administrator shall be a party or (c) that may
succeed to the properties and assets of the Administrator substantially as a
whole, shall be the successor to the Administrator without the execution or
filing of any documents or any further act by any of the parties to this
Administration Agreement; provided, however, that the Administrator hereby
covenants that, if the surviving Administrator is other than Education Lending
Services, Inc. or an Affiliate, it will not consummate any of the foregoing
transactions except upon satisfaction of the following: (i) the surviving
Administrator executes an agreement of assumption to perform every obligation of
the Administrator under this Administration Agreement and (ii) immediately after
giving effect to such transaction, no representation or warranty made pursuant
to Section 12 hereof has been breached and no Administrator Default (as defined
in Section 17 hereof), and no event that, after notice or lapse of time, or
both, would become an Administrator Default has occurred and is continuing.
Anything in this Section 16 to the contrary notwithstanding, the Administrator
may at any time assign its rights, obligations and duties under this
Administration Agreement to an Affiliate.
Section 17. Administrator Default. The occurrence and continuance of
any one of the following events shall constitute an "Administrator Default":
(a) any failure by the Administrator duly to observe or to perform
in any material respect any covenant or agreement of the
Administrator set forth in this Administration Agreement, which
failure continues unremedied for a period of 30 days after the
date on which written notice of such failure has been given to
the Administrator by the Depositor;
10
(b) (i) having entered involuntarily against it an order for relief
under the federal bankruptcy laws or any similar state or
federal law, (ii) not paying, or admitting in writing its
inability to pay, its debts generally as they become due or
suspending payment of its obligations, (iii) making an
assignment for the benefit of creditors, (iv) applying for,
seeking, consenting to, or acquiescing in, the appointment of a
receiver, custodian, trustee, conservator, liquidator or similar
official for it or any substantial part of its property, (v)
instituting any proceeding seeking to have entered against it an
order for relief under the federal bankruptcy laws or any
similar state or federal law to adjudicate it insolvent, or
seeking dissolution, winding up, liquidation, reorganization,
arrangement, marshaling of assets, adjustment or composition of
it or its debts under any law relating to bankruptcy, insolvency
or reorganization, or relief of debtors or failing to file an
answer or other pleading denying the material allegations of any
such proceeding filed against it, (vi) failing to contest in
good faith any appointment or proceeding described in Section
17(c) hereof or (vii) taking any action in furtherance of any of
the foregoing purposes; or
(c) the appointment of a custodian, receiver, trustee, conservator,
liquidator or similar official for the Administrator or any
substantial part of the property of the Administrator, or the
institution of a proceeding described in Section 17(b)(v) hereof
against the Administrator, which appointment continues
undischarged or which proceeding continues undismissed or
unstayed for a period of 60 or more days.
In the case of any Administrator Default, so long as such Administrator
Default has not been remedied, the Depositor shall, by written notice to the
Administrator of such Administrator Default, terminate all of the rights and
obligations (other than the obligations set forth in Section 15 hereof) of the
Administrator under this Administration Agreement. On or after the receipt by
the Administrator of such written notice, all authority and power of the
Administrator under this Administration Agreement shall, without further action,
be carried out by the Depositor or shall pass to and be vested in such successor
Administrator as may be appointed under Section 18 hereof; and, without
limitation, the Depositor is hereby authorized and empowered to execute and
deliver, for the benefit of the predecessor Administrator, as attorney-in-fact
or otherwise, any and all documents and other instruments, and to do or
accomplish all other acts or things necessary or appropriate to effect the
purposes of such notice of termination. The predecessor Administrator shall
cooperate with the successor Administrator in effecting the termination of the
responsibilities and rights of the predecessor Administrator under this
Administration Agreement. All reasonable costs and expenses (including
attorneys' fees) incurred in connection with amending this Administration
Agreement to reflect such succession as Administrator pursuant to this Section
17 shall be paid by the predecessor Administrator upon presentation of
reasonable documentation of such costs and expenses.
11
Section 18. Appointment of Successor.
(a) Upon receipt by the Administrator of notice of termination
pursuant to Section 13 hereof, or the resignation by the Administrator in
accordance with the terms of this Administration Agreement, the predecessor
Administrator shall continue to perform its functions as Administrator under
this Administration Agreement, in the case of termination, only until the date
specified in such termination notice or, if no such date is specified in a
notice of termination, until receipt of such notice and, in the case of
resignation, until the date a successor Administrator is appointed by the
Depositor. In the event of the termination or resignation hereunder of the
Administrator, the Depositor may appoint a successor Administrator. Any such
successor Administrator shall accept its appointment by a written assumption.
(b) Upon appointment, the successor Administrator shall be the
successor in all respects to the predecessor Administrator and shall be subject
to all of the responsibilities, duties and liabilities placed on the predecessor
Administrator that arise thereafter or are related thereto and shall be entitled
to payment of compensation in accordance with the terms of this Administration
Agreement, or such other terms as are agreed to by the Depositor, and all of the
rights granted to the predecessor Administrator by the terms and provisions of
this Administration Agreement.
Section 19. Reliance on Information Obtained from Third Parties. The
Depositor recognizes that the accuracy and completeness of the records
maintained and the information supplied by the Administrator hereunder is
dependent upon the accuracy and completeness of the information obtained by the
Administrator from the parties to the Depositor Documents and other sources and
the Administrator shall not be responsible for any inaccuracy in the information
so obtained or for any inaccuracy in the records maintained by the Administrator
hereunder that may result therefrom.
Section 20. Notices. All notices, demands, instructions and other
communications required or permitted to be given to or made upon either party
hereto shall be in writing (including by facsimile transmission) and shall be
personally delivered or sent by guaranteed overnight delivery or by facsimile
transmission (to be followed by personal or guaranteed overnight delivery) and
shall be deemed to be given for purposes of this Administration Agreement on the
date that such writing is received by the intended recipient thereof in
accordance with the provisions of this Section 20. Unless otherwise specified in
a notice sent or delivered in accordance with the foregoing provisions of this
Section 20, notices, demands, instructions and other communications in writing
shall be given to or made upon the respective parties thereto at their
respective addresses as follows:
12
The Depositor:
Education Funding Capital I, LLC
0 Xxxx Xxxxxx Xxxxxx
Xxxxx 000X
Xxxxxxxxxx, Xxxx 00000
Attention: Xxxxxxx Xxxxx
The Administrator:
Education Lending Services, Inc.
0 Xxxx Xxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxxx, Xxxx 00000
Attention: Xxxxx Xxxxx
Section 21. Amendment. This Administration Agreement may be amended
in writing by the Administrator and the Depositor.
Section 22. Assignment. Except as provided in Section 16 hereof or
as contemplated by the Indenture, this Administration Agreement may not be
assigned by either party hereto without the prior written consent of the other
party.
Section 23. Independence of Administrator. For all purposes of this
Administration Agreement, the Administrator shall be an independent contractor.
Unless expressly authorized by the Depositor, the Administrator shall have no
authority to act for or represent the Depositor in any way and shall not
otherwise be deemed an agent of the Depositor.
Section 24. No Joint Venture. Nothing contained in this
Administration Agreement shall constitute the Depositor and the Administrator as
members of any partnership, joint venture, association, syndicate,
unincorporated business or other separate entity or shall be deemed to confer on
either of them any express, implied or apparent authority to incur any
obligation or liability on behalf of the other.
Section 25. Other Activities of Administrator. Nothing herein shall
prevent the Administrator or its Affiliates from engaging in other business or,
in its sole discretion, from acting in a similar capacity as an administrator
for any other Person even though such Person may engage in business activities
similar to those of the Depositor.
Section 26. No Petition. The Administrator covenants and agrees
that, notwithstanding the termination of this Administration Agreement, the
Administrator will not institute against, or join in instituting against, the
Depositor, any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceeding, or other proceeding under any federal or state
bankruptcy or similar law ordering the winding up or liquidation of the
Depositor's affairs or appointing a receiver, liquidator, trustee, or other
similar official, of the Depositor or any substantial part of its property,
13
for one year and a day after the termination of this Administration Agreement.
This Section 26 shall survive the termination of this Administration Agreement.
Section 27. Limited Recourse. Notwithstanding anything to the
contrary contained herein, the obligations of the Depositor hereunder shall not
be recourse to the Depositor (or any Person acting on behalf of the Depositor or
any affiliate, officer or director of the Depositor), other than to (a) any
assets of the Depositor not pledged to third parties or otherwise encumbered in
a manner permitted by the Depositor's Certificate of Formation and the Limited
Liability Company Agreement. The Administrator agrees that to the extent such
funds are insufficient or unavailable to pay any amounts owing to the
Administrator from the Depositor pursuant to this Administration Agreement, it
shall not constitute a claim against the Depositor.
Section 28. Governing Law. This Administration Agreement shall be
governed by and construed in accordance with the laws of the State of Ohio,
without regard to its conflict of law provisions.
Section 29. Entire Agreement. This Administration Agreement
constitutes the entire agreement between the parties hereto with respect to the
matters covered hereby and supersedes all prior agreements and understandings
between the parties.
Section 30. Successors; Counterparts.
(a) This Administration Agreement shall be binding upon, inure to
the benefit of and be enforceable by the respective successors and assigns of
each of the Depositor and the Administrator.
(b) This Administration Agreement may be executed in several
counterparts, each of which shall be deemed an original hereof and all of which
taken together shall constitute one and the same instrument.
Section 31. Captions. The captions in this Administration Agreement
are for convenience of reference only and shall not define or limit any of the
terms or provisions hereof.
[remainder of page intentionally left blank]
14
IN WITNESS WHEREOF, the parties hereto have caused this Administration
Agreement to be executed as of the day and year first above written.
EDUCATION FUNDING CAPITAL I, LLC
By: /s/ Xxxxx X. Xxxxx
------------------------------------
Name: Xxxxx X. Xxxxx
Title: Senior Vice President - Finance
EDUCATION LENDING SERVICES, INC.,
as Administrator
By: /s/ Xxxxx X. Xxxxx
------------------------------------
Name: Xxxxx X. Xxxxx
Title: Senior Vice President - Finance
