EXHIBIT 10.14
EXECUTION COPY
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MARKET AGENT AGREEMENT
by and between
CITIGROUP GLOBAL MARKETS INC.
as Market 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-4
Education Loan Backed Notes, Series A-5
Education Loan Backed Notes, Series A-6
Education Loan Backed Notes, Series A-7
Education Loan Backed Notes, Series A-8
Education Loan Backed Notes, Series B-1
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MARKET AGENT AGREEMENT
THIS MARKET AGENT AGREEMENT (this "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 Market Agent as
provided for and defined in the Indenture of Trust dated 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"), which
provides for the issuance of the Issuer's Education Loan Backed Notes, Series
A-4, Series A-5, Series A-6, Series A-7, Series A-8 and Series B-1 (the "Auction
Rate Notes"). All capitalized terms used herein and not defined herein shall
have the meanings set forth in the Indenture.
1. Appointment of Market Agent; Responsibilities of Market Agent. Subject
to the terms and conditions herein contained, the Issuer hereby appoints
Citigroup as the Market Agent for the Auction Rate Notes, and Citigroup hereby
accepts such appointment as Market Agent for the Auction Rate Notes with respect
to the duties of the Market Agent set forth in the Indenture. In its capacity as
Market Agent for the Auction Rate Notes, Citigroup shall perform the duties set
forth for the Market Agent in the Indenture, including but not limited to, (a)
consenting to any change in the length of an Auction Period, as set forth in
Section 2.02(g) of Appendix B to the Indenture, (b) specifying a change in any
Auction Date as set forth in Section 2.02(h) of Appendix B to the Indenture, and
(c) providing notification of such matters to the Issuer, the Indenture Trustee,
the Auction Agent, each Rating Agency or the Securities Depository, as provided
in the Indenture. The Market Agent shall be obligated to perform only such
duties as are specifically set forth in the Indenture with respect to the
Auction Rate Notes and no other duties or obligations on the part of the Market
Agent, in its capacity as such, shall be implied by this Agreement. The Market
Agent may rely upon, and is authorized to honor, any telephonic requests or
directions that the Market Agent reasonably believes in good faith to emanate
from an authorized representative of the Issuer, regardless of the source of
such request or direction. Any telephonic request or direction to the Market
Agent shall promptly be confirmed in writing; provided, however, that failure to
receive any such notice shall not affect the authority of the Market Agent to
rely and act upon such request or direction.
2. Conditions to Market Agent's Obligations. The obligations of
Citigroup under this 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 Market Agent Agreement. This Agreement shall
become effective upon April 1, 2003 and shall continue in full force and effect
up to and including the earlier of June 1, 2042 or such date when no Auction
Rate Notes are outstanding, subject to the right of Citigroup or the Issuer to
cancel this Agreement at any time upon the giving of not less than 30 days prior
written notice, provided that such resignation or replacement, as the case may
be, shall not be effective until the appointment of a successor Market Agent by
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the Issuer and the acceptance of such appointment by such successor Market
Agent. Citigroup agrees and the Issuer agrees to send a copy of any notice of
termination of this Agreement to the Indenture Trustee at its address referred
to below.
4. Payment of Fees. In consideration of the services to be performed by
Citigroup under this 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 on the date of issuance of the Auction Rate Notes and on the first
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. Miscellaneous.
(a) Except as otherwise specifically provided in this Agreement, all
notices, demands and formal actions under this Agreement shall be in
writing and mailed, telegraphed or delivered to:
MARKET AGENT: INDENTURE TRUSTEE:
Citigroup Global Markets Inc. Fifth Third Bank
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇ 10AT60
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇: _____________________ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Telephone Number: ______________ Attention: Corporate Trust
Facsimile Number: ______________ Administration
Telephone: ▇▇▇.▇▇▇.▇▇▇▇
Facsimile: 513.534.6785
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ISSUER:
Education Funding Capital Trust-II
c/o Fifth Third Bank
MD 10AT60
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▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
Telephone: ▇▇▇.▇▇▇.▇▇▇▇
Facsimile: 513.534.6785
with a copy to:
Wilmington Trust Company
▇▇▇▇▇▇ Square North
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▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Trust Administration
Telephone: ▇▇▇.▇▇▇.▇▇▇▇
Facsimile: 203.975.6299
Citigroup, the Issuer or the Indenture Trustee may designate, by written
notice given under this Agreement, other addresses to which subsequent notices,
requests, reports or other communications shall be directed.
(b) This 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 other than
Persons, if any, controlling Citigroup, within the meaning of the Securities Act
of 1933, as amended; provided, however, that this Agreement shall not be
assignable by any party hereto (except the Indenture Trustee in the event of its
resignation or removal as indenture trustee under the Indenture) without the
prior written consent of the other parties hereto.
(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 Agreement as a matter of
convenience of reference only, and it is agreed that such section headings are
not a part of this Agreement and will not be used in the interpretation of any
provisions of this Agreement.
(e) If any provision of this 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
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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 Agreement invalid, inoperative or unenforceable to any extent
whatever.
(f) This 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 Agreement shall be governed by and construed in accordance
with the laws of the State of Ohio.
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IN WITNESS WHEREOF, the parties hereto have caused this 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/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Assistant Vice President
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FIFTH THIRD BANK, as Indenture Trustee
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Assistant Vice President
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CITIGROUP GLOBAL MARKETS INC., as Market Agent
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Managing Director
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