EXHIBIT 99.4
EXECUTION COPY
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Administration Agreement
between
Education Funding Capital I, LLC
as Depositor
and
Education Lending Services, Inc.
as Administrator
dated as of October 1, 2003
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Administration Agreement (Depositor)
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.........................................12
SECTION 19. RELIANCE ON INFORMATION OBTAINED FROM THIRD PARTIES..............12
SECTION 20. NOTICES..........................................................12
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Administration Agreement (Depositor)
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
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Administration Agreement (Depositor)
Administration Agreement
This Administration Agreement (this "Administration Agreement") is made as
of October 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 October 1, 2003 (the "Indenture") among Education Funding Capital
Trust-III, 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,
Administration Agreement (Depositor)
directly or indirectly, whether through the ownership of voting securities, by
contract or otherwise.
"Payment Date" shall mean the last Business Day of each calendar 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
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Administration Agreement (Depositor)
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 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 Master 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.
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Administration Agreement (Depositor)
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 Depositor to comply with the requirements of the
Act and the applicable Guaranty 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;
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Administration Agreement (Depositor)
(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.
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Administration Agreement (Depositor)
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.
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Administration Agreement (Depositor)
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
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Administration Agreement (Depositor)
by 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 instrumentality required to be obtained, effected
or given by the Administrator in connection
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Administration Agreement (Depositor)
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.
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
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Administration Agreement (Depositor)
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;
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Administration Agreement (Depositor)
(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.
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Administration Agreement (Depositor)
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
Administration Agreement (Depositor)
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
13
Administration Agreement (Depositor)
substantial part of its property, 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.
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14
Administration Agreement (Depositor)
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
Administration Agreement (Depositor)
