EXHIBIT 10.2
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ADMINISTRATION AGREEMENT
among
THE NATIONAL COLLEGIATE TRUST 1996-S2,
as Issuer
DELAWARE TRUST CAPITAL MANAGEMENT, INC.,
as Owner Trustee
STATE STREET BANK AND TRUST COMPANY,
as Indenture Trustee
and
FIRST MARBLEHEAD DATA SERVICES INC.,
as Administrator
Dated as of November 1, 1996
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This ADMINISTRATION AGREEMENT dated as of November 1, 1996 (as
amended from time to time, the "Agreement"), among THE NATIONAL COLLEGIATE TRUST
1996-S2, a Delaware business trust (the "Issuer"), DELAWARE TRUST CAPITAL
MANAGEMENT, INC., a Delaware trust company (the "Owner Trustee"), STATE STREET
BANK AND TRUST COMPANY, a Massachusetts trust company (the "Indenture Trustee"),
and FIRST MARBLEHEAD DATA SERVICES INC., a Delaware corporation (the
"Administrator"),
W I T N E S S E T H :
WHEREAS, the Issuer is issuing: (a) its 7.30% Class A
Collateralized Student Loan Bonds and its 8.15% Class B Collateralized Student
Loan Bonds, 1996-S2 (the "Bonds") pursuant to the Indenture dated as of November
1, 1996 (the "Indenture"), between the Issuer and the Indenture Trustee and (b)
its Trust Certificates pursuant to the Trust Agreement dated as of November 7,
1996 (the "Trust Agreement") between the Owner Trustee and The National
Collegiate Trust (together with its successors in interest, the "Owners").
Capitalized terms used and not otherwise defined herein shall have the meanings
assigned to such terms in the Trust Agreement or Indenture (the "Basic
Documents");
WHEREAS, pursuant to the Basic Documents, the Issuer and the
Owner Trustee are required to perform certain duties in connection with (a) the
Student Loan Notes and other collateral pledged pursuant to the Indenture (the
"Collateral") and (b) the Bonds (the registered holders of such interests being
referred to herein as the "Bondholders");
WHEREAS, the Issuer and the Owner Trustee desire to have the
Administrator perform certain of the duties of the Issuer referred to in the
Basic Documents and any other documents signed by the Owner Trustee on behalf of
the Issuer (collectively, the "Trust Related Agreements") and to provide such
additional services consistent with the terms of this Agreement and the Trust
Related Agreements as the Issuer and the Owner Trustee may from time to time
request; and
WHEREAS, the Administrator has the capacity to provide the
services required hereby and is willing to perform such services for the Issuer
and the Owner Trustee on the terms set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants
contained herein, and other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties agree as follows:
1. DUTIES OF THE ADMINISTRATOR.
(a) DUTIES WITH RESPECT TO THE TRUST RELATED AGREEMENTS.
(i) The Administrator agrees to perform all its
duties as Administrator and the duties of the Issuer under the Trust Related
Agreements. In addition, the Administrator
shall consult with the Owner Trustee regarding the duties of the Issuer under
the Trust Related Agreements. The Administrator shall monitor the performance of
the Issuer and shall advise the Owner Trustee when action is necessary to comply
with the Issuer's duties under the Trust Related Agreements. The Administrator
shall prepare for execution by the Issuer, or shall cause the preparation by
other appropriate persons or entities of, all such documents, reports, filings,
instruments, certificates and opinions that it shall be the duty of the Issuer
to prepare, file or deliver pursuant to the Trust Related Agreements. In
furtherance of the foregoing, the Administrator shall take all appropriate
action that is the duty of the Issuer to take pursuant to the Indenture
including, without limitation, such of the foregoing as are required with
respect to the following matters under the Indenture (references are to sections
of the Indenture):
(A) the direction to the Indenture Trustee by Issuer
Order to deposit moneys with Paying Agents, if any, other than
the Indenture Trustee (Section 9.02);
(B) the administration of the 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 relating thereto (Section 5.01);
(C) the preparation and delivery of notice to
Bondholders of the removal of the Indenture Trustee and the
appointment of a successor Indenture Trustee (Section 7.10);
(D) the preparation and, after execution by the
Issuer, the filing with the Commission, any applicable state
agencies and the Indenture Trustee of 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 and the
transmission of such summaries, as necessary, to the
Bondholders (Section 8.04);
(E) the preparation of an Issuer Order and Officer's
Certificate and the obtaining of an Opinion of Counsel, if
necessary, for the release of property of the Trust Estate
(Sections 4.05 and 4.06);
(F) the preparation of Issuer Requests and the
obtaining of Opinions of Counsel with respect to the execution
of supplemental indentures and the mailing to the Bondholders
of notices with respect to such supplemental indentures
(Sections 10.01 and 10.02);
(G) the execution and delivery of new Bonds
conforming to any supplemental indenture (Section 10.06);
(H) the preparation and delivery of Issuer Order and
Officer's Certificates and providing an Opinion of Counsel, if
necessary, for the release of property from the lien of the
Indenture (Sections 4.04, 4.06 and 4.07);
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(I) the payment of all expenses in connection with
the issuance of the Bonds (Section 7.07);
(J) the redemption of the Bonds and the related
notice to the Indenture Trustee (Sections 11.01 and 11.02);
and
(K) the furnishing of names and addresses of the
Bondholders to the Indenture Trustee (Section 8.01).
(ii) the Administrator will:
(A) indemnify the Indenture Trustee and its
agents for, and hold them harmless against, any losses,
liability or expense, including reasonable attorneys fees and
expenses, incurred without willful misconduct, negligence, or
bad faith on their part, arising out of the willful
misconduct, negligence or bad faith of the Administrator in
the performance of the transactions contemplated by this
Agreement; and
(B) indemnify the Issuer and the Owner
Trustee and their respective agents for, and hold them
harmless against, any losses, liability or expense, including
reasonable attorneys fees and expenses, incurred without
negligence, willful misconduct or bad faith on their part,
arising out of the willful misconduct, negligence or bad faith
of the Administrator in the performance of the transactions
contemplated by this Agreement;
PROVIDED, HOWEVER, that the Administrator shall not be required to indemnify
either the Indenture Trustee, the Issuer or the Owner Trustee pursuant to
Subsection (ii)(A) or (B) so long as the Administrator has acted pursuant to the
instructions of the Owner Trustee or the Owners in accordance with Subsection
(c) of Section 1 of this Agreement.
(b) ADDITIONAL DUTIES. (i) In addition to the duties of the
Administrator set forth above, the Administrator shall perform, or cause to be
performed, its duties and obligations and the duties and obligations of the
Owner Trustee on behalf of the Issuer under the Trust Agreement including,
without limitation, those duties and obligations set forth on Schedule A hereto.
In furtherance thereof, the Issuer shall execute and deliver to the
Administrator and to each successor Administrator appointed pursuant to the
terms hereof, one or more powers of attorney substantially in the form of
Exhibit A hereto, appointing the Administrator the attorney-in-fact of the
Issuer for the purpose of executing on behalf of the Issuer all such documents,
reports, filings, instruments, certificates and opinions. Subject to Section 4
of this Agreement, and in accordance with the directions of the Issuer and the
Owner Trustee, the Administrator shall administer, perform or supervise the
performance of such other activities in connection with the Collateral
(including the Trust Related Agreements) as are not covered by any of the
foregoing provisions and as are expressly requested by the Issuer or the Owner
Trustee and are reasonably within the capability of the Administrator. The
Administrator shall be responsible for any filings required by the Issuer under
the Securities Exchange Act of 1934, as amended.
(ii) In carrying out the foregoing duties or any
of its other obligations under this Agreement, the Administrator may enter into
transactions or otherwise deal with any
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of its affiliates; PROVIDED, HOWEVER, that the terms of any such transactions or
dealings shall be in accordance with any directions received from the Issuer and
shall be, in the Administrator's opinion, no less favorable to the Issuer than
would be available from unaffiliated parties.
(iii) In carrying out any of its obligations under
this Agreement, the Administrator may act either directly or through agents,
attorneys, accountants, independent contractors and auditors and enter into
agreements with any of them.
(c) NON-MINISTERIAL MATTERS.
(i) With respect to matters that in the
reasonable judgment of the Administrator are non-ministerial, the Administrator
shall not be under any obligation to take any action, and in any event shall not
take any action unless the Administrator shall have received instructions from
the Owner Trustee or the Owners in accordance with the Trust Agreement. For the
purpose of the preceding sentence, "non-ministerial matters" shall include,
without limitation:
(A) the amendment of or any supplement to the Trust
Related Agreements;
(B) the initiation of any claim or lawsuit by the
Issuer and the compromise of any action, claim or lawsuit
brought by or against the Issuer;
(C) the appointment of successor Administrators and
successor Indenture Trustees pursuant to the Indenture, or the
consent to the assignment by the Administrator or Indenture
Trustee of its obligations under the Indenture; and
(D) the removal of the Indenture Trustee.
(ii) Notwithstanding anything to the contrary in
this Agreement, the Administrator shall not be obligated to, and shall not (x)
make any payments to the Bondholders under the Trust Related Agreements, (y)
sell the Trust Estate pursuant to the Indenture or (z) take any action that the
Issuer directs the Administrator not to take on its behalf.
(d) ACTIONS ON BEHALF OF THE OWNERS. Pursuant to Section 4.06
of the Trust Agreement, each Owner has appointed the Administrator as its true
and lawful attorney-in-fact with respect to certain matters described in such
Section 4.06.
2. RECORDS. The Administrator shall maintain appropriate
books of account and records relating to services performed hereunder, which
books of account and records shall be accessible for inspection by the Issuer,
the Indenture Trustee and the Owners at any time during normal business hours.
3. COMPENSATION. As compensation for the performance of
the Administrator's obligations under this Agreement and as reimbursement for
its expenses related thereto, the Administrator shall be entitled to an
Administration Fee equal to (i) on each Payment Date, .05% of the outstanding
principal balance of the Bonds as of the immediately preceding
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Payment Date plus (ii) on each Distribution Date after the Bonds have been
retired, 5% of the Net Cash Flow to be distributed to the Owners on such
Distribution Date, determined in accordance with the Trust Agreement, which in
each case shall be solely an obligation of the Issuer.
4. ADDITIONAL INFORMATION TO BE FURNISHED TO THE ISSUER.
The Administrator shall furnish to the Issuer from time to time such additional
information regarding the Collateral as the Issuer shall reasonably request.
5. INDEPENDENCE OF THE 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.
6. NO JOINT VENTURE. Nothing contained in this Agreement
(i) shall constitute the Administrator and either of the Issuer, the Owner
Trustee or any Owner as members of any partnership, joint venture, association,
syndicate, unincorporated business or other separate entity, (ii) shall be
construed to impose any liability as such on any of them or (iii) shall be
deemed to confer on any of them any express, implied or apparent authority to
incur any obligation or liability on behalf of the others.
7. OTHER ACTIVITIES OF THE ADMINISTRATOR. Nothing herein
shall prevent the Administrator or its Affiliates from engaging in other
businesses or, in its sole discretion, from acting in a similar capacity as an
administrator for any other person or entity even though such person or entity
may engage in business activities similar to those of the Issuer, the Owner
Trustee or the Indenture Trustee.
8. TERM OF AGREEMENT; RESIGNATION AND REMOVAL OF
ADMINISTRATOR. (a) This Agreement shall continue in force until the dissolution
of the Issuer, upon which event this Agreement shall automatically terminate.
(b) Subject to Section 8(e) of this Agreement, the
Administrator may resign its duties hereunder by providing the Issuer with at
least 60 days' prior written notice.
(c) Subject to Section 8(e) of this Agreement, the Issuer may
remove the Administrator without cause by providing the Administrator with at
least 60 days' prior written notice.
(d) Subject to Section 8(e) of this Agreement, at the sole
option of the Issuer, the Administrator may be removed immediately upon written
notice of termination from the Issuer to the Administrator if any of the
following events shall occur:
(i) the Administrator shall default in the
performance of any of its duties under this Agreement and, after notice of such
default, shall not cure such default within
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ten days (or, if such default cannot be cured in such time, shall not give
within ten days such assurance of cure as shall be reasonably satisfactory to
the Issuer);
(ii) a court having jurisdiction in the premises
shall enter a decree or order for relief, and such decree or order shall not
have been vacated within 60 days, in respect of the Administrator in any
involuntary case under any applicable bankruptcy, insolvency or other similar
law now or hereafter in effect or appoint a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar official for the Administrator or
any substantial part of its property or order the winding-up or liquidation of
its affairs; or
(iii) the Administrator shall commence a voluntary
case under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, shall consent to the entry of an order for relief in an
involuntary case under any such law, or shall consent to the appointment of a
receiver, liquidator, assignee, trustee, custodian, sequestrator or similar
official for the Administrator or any substantial part of its property, shall
consent to the taking of possession by any such official of any substantial part
of its property, shall make any general assignment for the benefit of creditors
or shall fail generally to pay its debts as they become due;
The Administrator agrees that if any of the events specified
in clauses (ii) or (iii) of this Section shall occur, it shall give written
notice thereof to the Owner Trustee and the Indenture Trustee within seven days
after the happening of such event.
(e) No resignation or removal of the Administrator pursuant to
this Section shall be effective until (i) a successor Administrator shall have
been appointed by the Issuer (with the consent of the Owner Trustee) and (ii)
such successor Administrator shall have agreed in writing to be bound by the
terms of this Agreement in the same manner as the Administrator is bound
hereunder.
(f) The appointment of any successor Administrator shall be
effective only after the Rating Agency, after having been given 10 days' prior
notice of such proposed appointment, shall have declared in writing that such
appointment will not result in a reduction or withdrawal of the then current
rating of the Bonds.
9. ACTION UPON TERMINATION, RESIGNATION OR REMOVAL.
Promptly upon the effective date of termination of this Agreement pursuant to
Section 8(a) of this Agreement or the resignation or removal of the
Administrator pursuant to Section 8(b) or (c) of this Agreement, respectively,
the Administrator shall be entitled to be paid all fees and reimbursable
expenses accruing to it to the date of such termination, resignation or removal.
The Administrator shall forthwith upon such termination pursuant to Section 8(a)
of this Agreement deliver to the Issuer all property and documents of or
relating to the Collateral then in the custody of the Administrator. In the
event of the resignation or removal of the Administrator pursuant to Section
8(b) or (c) of this Agreement, respectively, the Administrator shall cooperate
with the Issuer and take all reasonable steps requested to assist the Issuer in
making an orderly transfer of the duties of the Administrator.
10. NOTICES. Any notice, report or other communication
given hereunder shall be in writing and addressed as follows:
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(a) If to the Issuer, to:
The National Collegiate Trust 1996-S2
c/o Delaware Trust Capital Management, Inc.
000 Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
(b) If to the Administrator, to:
First Marblehead Data Services Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xx. Xxxxxxx Xxxxxxxx
(c) If to the Indenture Trustee, to:
State Street Bank and Trust Company
Corporate Trust Department
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xx. Xxxxxxxx XxXxxxx
(d) If to the Owner Trustee, to:
Delaware Trust Capital Management, Inc.
000 Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xx. Xxxxxxx X. Xxxxx
or to such other address as any party shall have provided to the other parties
in writing. Any notice required to be in writing hereunder shall be deemed given
if such notice is mailed by certified mail, postage prepaid, or hand-delivered
to the address of such party as provided above.
11. AMENDMENTS. (a) This Agreement may be amended from
time to time by the parties hereto as specified in this Section, provided that
any amendment be accompanied by the written consent of the Owner Trustee and an
Opinion of Counsel to the Indenture Trustee to the effect that such amendment
complies with the provisions of this Section.
(b) If the purpose of the amendment (as detailed therein) is
to correct any mistake, eliminate any inconsistency, cure any ambiguity or deal
with any matter not covered (i.e., to give effect to the intent of the parties
and, if applicable, to the expectations of the Bondholders), it shall not be
necessary to obtain the consent of any Bondholder, but the Indenture Trustee
shall be furnished with a letter from the Rating Agency that the amendment will
not result in the downgrading or withdrawal of the rating then assigned to the
Bonds.
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(c) If the purpose of the amendment is to prevent the
imposition of any federal or state taxes at any time that the Bonds are
outstanding (i.e., technical in nature), it shall not be necessary to obtain the
consent of any Bondholder, but the Indenture Trustee shall be furnished with an
Opinion of Counsel from counsel to the Issuer that such amendment is necessary
or helpful to prevent the imposition of such taxes and is not materially adverse
to any Bondholder.
(d) If the purpose of the amendment is to add or eliminate or
change any provision of the Agreement other than as contemplated in (b) and (c)
above, the amendment shall require the consent of the Rating Agency; PROVIDED,
HOWEVER, that no such amendment shall reduce in any manner the amount of, or
delay the timing of, payments received that are required to be distributed on
the Bonds without the consent of the related Bondholder, as applicable.
(e) It shall not be necessary for the consent of the Rating
Agency to approve the particular form of any proposed amendment, but it shall be
sufficient if such consent approves the substance thereof.
12. SUCCESSORS AND ASSIGNS. This Agreement may not be
assigned by the Administrator unless such assignment is previously consented to
in writing by the Issuer, the Owner Trustee and the Indenture Trustee and unless
the Rating Agency, after having been given 10 days' prior notice of such
assignment, shall have declared in writing that such assignment will not result
in a reduction or withdrawal of the then current rating of the Bonds. An
assignment with such consent and satisfaction, if accepted by the assignee,
shall bind the assignee hereunder in the same manner as the Administrator is
bound hereunder. Notwithstanding the foregoing, this Agreement may be assigned
by the Administrator without the consent of the Issuer or the Owner Trustee to a
corporation or other organization that is a successor (by merger, consolidation
or purchase of assets) to the Administrator; PROVIDED that such successor
organization executes and delivers to the Issuer, the Owner Trustee and the
Indenture Trustee an agreement in which such corporation or other organization
agrees to be bound hereunder by the terms of said assignment in the same manner
as the Administrator is bound hereunder. Subject to the foregoing, this
Agreement shall bind any such permitted successors or assigns of the parties
hereto.
13. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS,
RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
14. HEADINGS. The section headings hereof have been
inserted for convenience of reference only and shall not be construed to affect
the meaning, construction or effect of this Agreement.
15. COUNTERPARTS. This Agreement may be executed in
counterparts, each of which when so executed shall together constitute but one
and the same agreement.
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16. SEVERABILITY. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall be ineffective to the
extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
17. LIMITATION OF LIABILITY OF OWNER TRUSTEE.
Notwithstanding anything contained herein to the contrary, this instrument has
been executed by Delaware Trust Capital Management, Inc., not in its individual
capacity but solely in its capacity as Owner Trustee of the Issuer, and in no
event shall Delaware Trust Capital Management, Inc. in its individual capacity
or any beneficial owner of the Issuer have any liability for the
representations, warranties, covenants, agreements or other obligations of the
Issuer hereunder, as to all of which recourse shall be had solely to the assets
of the Issuer. For all purposes of this Agreement, in the performance of any
duties or obligations of the Issuer hereunder, the Owner Trustee shall be
subject to, and entitled to the benefits of, the terms and provisions of
Articles VIII, IX and X of the Trust Agreement.
* * * * * * * *
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IN WITNESS WHEREOF, the parties have caused this Agreement to
be duly executed and delivered as of the day and year first above written.
THE NATIONAL COLLEGIATE TRUST 1996-S2
By: DELAWARE TRUST CAPITAL
MANAGEMENT, INC., not in its
individual capacity but solely as Owner
Trustee
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
DELAWARE TRUST CAPITAL
MANAGEMENT, INC.
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
STATE STREET BANK AND TRUST
COMPANY
By: /s/ Xxxxx X. Xxxxx
-----------------------------------
Name: Xxxxx X. Xxxxx
Title: Assistant Vice President
FIRST MARBLEHEAD DATA SERVICES INC.
By: /s/ Xxxxxxx Xxxxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: President
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EXHIBIT A
POWER OF ATTORNEY
STATE OF NEW YORK )
)
COUNTY OF NEW YORK )
KNOW ALL MEN BY THESE PRESENTS, that The National Collegiate
Trust 1996-S2 (the "Issuer"), does hereby make, constitute and appoint First
Marblehead Data Services Inc., as administrator under the Administration
Agreement dated as of November 1, 1996 (the "Administration Agreement"), among
the Issuer, State Street Bank and Trust Company, as Indenture Trustee, and First
Marblehead Data Services Inc., as Administrator, as the same may be amended from
time to time, and its agents and attorneys, as Attorneys-in-Fact to execute on
behalf of the Issuer all such documents, reports, filings, instruments,
certificates and opinions as it shall be the duty of the Issuer to prepare, file
or deliver pursuant to the Trust Related Agreements, including, without
limitation, to appear for and represent the Issuer in connection with the
preparation, filing and audit of federal, state and local tax returns pertaining
to the Issuer, and with full power to perform any and all acts associated with
such returns and audits that the Issuer could perform, including without
limitation, the right to distribute and receive confidential information, defend
and assert positions in response to audits, initiate and defend litigation, and
to execute waivers of restrictions on assessments of deficiencies, consents to
the extension of any statutory or regulatory time limit, and settlements.
All powers of attorney for this purpose heretofore filed or executed by the
Issuer are hereby revoked.
Capitalized terms that are used and not otherwise defined herein shall have the
meanings ascribed thereto in the Administration Agreement.
EXECUTED this ___ day of ________, 1996.
THE NATIONAL COLLEGIATE TRUST 1996-S2
By: DELAWARE TRUST CAPITAL
MANAGEMENT, INC., not in its individual
capacity but solely as Owner Trustee
By:________________________________________
Name:
Title:
SCHEDULE A
DUTIES OF THE ISSUER
PERFORMED BY THE ADMINISTRATOR UNDER THE TRUST AGREEMENT
(A) Filing tax returns, reports and forms under Section 8.04.
(B) Furnishing documents to the Owners under Section 9.02.
(C) Filing a Certificate of Termination of the Trust upon
termination pursuant to Section 11.01.
(D) Appointing separate trustees under Section 12.02.
(E) Obtaining execution by the Owners of any amendment to the
Trust Agreement thereunder.
DUTIES OF THE ADMINISTRATOR UNDER THE TRUST AGREEMENT
Interpreting and applying the provisions set forth in Article VII
regarding allocations of Profit and Loss and Distributions of Net Cash
Flow, resolving any ambiguities that may result from such application
and providing the Owners with clarification of any provisions.
