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Exhibit 10.2
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ADMINISTRATION AGREEMENT
BETWEEN
STUDENT LOAN FUNDING 1998-A/B TRUST
AS ISSUER
AND
STUDENT LOAN FUNDING RESOURCES, INC.
AS ADMINISTRATOR
DATED AS OF MARCH 15, 1999
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TABLE OF CONTENTS
PAGE
Section 1. Definitions...................................................................2
Section 2. Indenture and Related Documents...............................................2
Section 3. Servicing Documents...........................................................4
Section 4. Transfer Agreement............................................................5
Section 5. Higher Education Act..........................................................6
Section 6. Other Duties with Respect to the Indenture and Servicing Documents............6
Section 7. Other Administrative Services.................................................6
Section 8. Exceptions....................................................................7
Section 9. Employees; Offices............................................................8
Section 10. Non-Ministerial Matters.......................................................8
Section 11. Compensation..................................................................8
Section 12. Representations and Warranties of the Issuer..................................9
Section 13. Representations and Warranties of the Administrator...........................9
Section 14. Term.........................................................................10
Section 15. Obligation to Supply Information.............................................11
Section 16. Liability of Administrator...................................................11
Section 17. Merger or Consolidation of, or Assumption of the Obligations of,
the Administrator............................................................12
Section 18. [Intentionally Left Blank]...................................................12
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Section 19. Administrator Default........................................................12
Section 20. Appointment of Successor.....................................................13
Section 21. Reliance on Information Obtained from Third Parties..........................14
Section 22. Notices......................................................................14
Section 23. Amendment....................................................................14
Section 24. Assignment...................................................................14
Section 25. Independence of Administrator................................................15
Section 26. No Joint Venture.............................................................15
Section 27. Other Activities of Administrator............................................15
Section 28. No Petition..................................................................15
Section 29. Limited Recourse.............................................................15
Section 30. Governing Law................................................................15
Section 31. Entire Agreement.............................................................15
Section 32. Successors; Counterparts.....................................................15
Section 33. Captions.....................................................................16
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ADMINISTRATION AGREEMENT
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THIS ADMINISTRATION AGREEMENT (the "Administration Agreement") is made
as of March 15, 1999 between Student Loan Funding 1998-A/B Trust (the "Issuer")
and Student Loan Funding Resources, Inc., an Ohio corporation, as administrator
(the "Administrator") under the circumstances set forth below. All references to
the Issuer shall be deemed to be references to Firstar Bank, National
Association, not in its individual capacity, but solely as Co-Owner Trustee (the
"Co-Owner Trustee") under the Trust Agreement dated as of March 1, 1999:
RECITALS
A. The Issuer is engaged in the acquisition from Student Loan Funding
LLC of student loans (the "Student Loans") guaranteed under a guaranty program
established pursuant to the requirements of the Higher Education Act of 1965, as
amended, and the regulations promulgated thereunder (the "Higher Education
Act").
B. In connection with the acquisition of such Student Loans, the Issuer
has executed and delivered that certain First Amended and Restated Indenture of
Trust and First Amended and Restated Terms Supplement to Indenture, each dated
as of March 15, 1999 (together, the "Indenture") among the Issuer, Firstar Bank,
National Association, as Eligible Lender Trustee, on behalf of the Issuer (the
"Eligible Lender Trustee"), and Firstar Bank, National Association, as Indenture
Trustee (the "Indenture Trustee").
C. The Issuer and/or the Master Servicer (as defined below) have
entered into certain agreements in connection with the acquisition of Student
Loans, including without limitation one or more Servicing Agreements and any
Subservicing Addenda thereto with a Servicer (the "Servicing Agreements"), the
Transfer and Sale Agreement, dated as of March 15, 1999 by and among Student
Loan Funding LLC (the "Depositor"), Firstar Bank, National Association, as
eligible lender trustee on behalf of the Depositor, the Issuer, the Eligible
Lender Trustee and the Indenture Trustee (the "Transfer Agreement"), and the
Master Servicing Agreement, dated as of March 15, 1999 by and between the Issuer
and Student Loan Funding Resources, Inc., as Master Servicer (the "Master
Servicing Agreement", together with the Servicing Agreements collectively
referred to herein as the "Servicing Documents").
D. Pursuant to the Indenture and the Basic Documents, the Issuer is
obligated to perform certain duties and responsibilities under the Indenture and
in connection with the assets and obligations thereunder.
E. The Issuer has requested that the Administrator provide advice and
assistance to the Issuer and perform various services for and duties of the
Issuer, including the duties and responsibilities of the Issuer under the
Indenture and in connection with the assets and obligations thereunder.
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F. The Issuer 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
Issuer, 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 Agreement, except as
otherwise expressly provided herein or unless the context requires, capitalized
terms not otherwise defined herein shall have the following meanings:
"Affiliate" means any corporation or other entity directly or
indirectly controlling or controlled by, or under direct or indirect common
control with, the Administrator or the Issuer. For purposes of this definition,
"control" means the power to direct management and policies of such entity,
directly or indirectly, whether through the ownership of voting securities, by
contract or otherwise.
"Guarantee Agency" means any guarantee agency that provides guarantees
for Student Loans.
"Servicer" means any servicing entity selected by the Master Servicer
to provide servicing of Student Loans, including but not limited to application,
review, disbursement, collection, due diligence and claims services.
SECTION 2. INDENTURE AND RELATED DOCUMENTS. The Administrator shall
cause the duties and responsibilities of the Issuer under the Indenture to be
performed, including but not limited to the actions set forth below. The
Administrator shall advise the Issuer when action by the Issuer is necessary to
comply with the Issuer's duties under the Indenture and the agreements relating
thereto. The Administrator shall prepare for execution, if required, by the
Issuer, 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 Issuer to prepare, file or deliver pursuant to the Indenture.
In furtherance of the foregoing, the Administrator shall take all appropriate
action, including but not limited to, the following:
a. obtaining and preserving the Issuer's legal right to do
business in any jurisdiction in which such qualification is or
shall be necessary to protect the validity and enforceability
of the Indenture, and each instrument and agreement included
in the trust estate of the Indenture;
b. preparing all supplements, amendments, financing statements,
continuation statements, instruments of further assurance and
other instruments, in accordance
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with the relevant provisions of the Indenture, necessary to
protect the trust estate of the Indenture;
c. arranging for the delivery of any opinions of counsel and
certificates of officers of the Issuer and other statements
required under the relevant provisions of the Indenture;
d. preparing and obtaining documents and instruments required for
the release of the Issuer from its obligations under the
Indenture;
e. monitoring the Issuer's obligations as to the satisfaction and
discharge of the Indenture and preparing any certificates of
officers of the Issuer and obtaining any opinions of counsel
required in connection therewith;
f. preparing, obtaining or filing the instruments, opinions and
certificates and other documents required for the release of
collateral;
g. taking such actions as may be required of the Issuer under the
Indenture upon the occurrence and continuance of an event of
default thereunder;
h. preparing and, after execution by the Issuer, filing with the
Securities and Exchange Commission (the "Commission"), any
applicable State agencies and the Indenture Trustee, 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 including
without limitation, the requirements under any continuing
disclosure agreements;
i. causing the directions of the Issuer to be carried out in
connection with opening one or more accounts in the Issuer's
name, preparing any orders of the Issuer and certificates of
officers of the Issuer and obtaining opinions of counsel
required, and taking all other actions necessary, with respect
to investment and reinvestment of funds in trust funds and
accounts established under the Indenture in accordance with
the investment criteria and requirements of the Indenture and
applicable investment policies.
j. preparing any requests of the Issuer and certificates of
officers of the Issuer and obtaining any opinions of counsel
required for the release of the trust estate of the Indenture;
k. preparing all certificates of officers of the Issuer, and
coordinating obtaining opinions of counsel as required with
respect to any requests by the Issuer of the Indenture Trustee
to take any action under the Indenture;
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l. preparing orders of the Issuer and obtaining opinions of
counsel as necessary or required for the execution of any
amendments or supplements to the Indenture;
m. preparing and delivering certificates of officers of the
Issuer, if necessary, for the release of property from the
lien of the Indenture;
n. preparing and delivering to the Indenture Trustee any
agreements with respect to notice provisions;
o. preparing and delivering investment instructions to the
Indenture Trustee, as necessary or required under the terms of
the applicable Indenture and in accordance with the applicable
investment policy, adopted from time to time; and
p. taking such actions as may be required of the Issuer under any
agreement between the Issuer and other parties relating to the
Indenture.
SECTION 3. SERVICING DOCUMENTS. The Administrator shall cause the
duties and responsibilities of the Issuer under each of the Student Loans and
the Servicing Documents to be performed, including but not limited to the duties
set forth below. The Administrator shall advise the Issuer when action by the
Issuer is necessary to comply with the Issuer's obligations under the Student
Loans and the Servicing Documents. The Administrator shall prepare for
execution, if required, by the Issuer 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 Issuer to prepare, file
or deliver pursuant to the Student Loans and the Servicing Documents. In
furtherance of the foregoing, the Administrator shall take all appropriate
action, including but not limited to the following:
a. pursuant to the Servicing Agreements, providing to each
Servicer (or such Servicer's bailee) from time to time, as
necessary, and requiring that each Servicer (or such
Servicer's bailee) maintain physical custody and possession
of, documentation and information relating to Student Loans
transferred to the Issuer pursuant to the Transfer Agreement
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 Issuer 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 such Servicer;
b. cause to be paid solely from Indenture assets, all amounts to
be paid by the Issuer pursuant to the Transfer Agreement;
c. promptly after each Loan Purchase Date, ensuring that
notification as required under the Higher Education Act and by
the applicable Guarantee Agencies is made to the
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borrower under each Student Loan and to the Secretary of
Education and the applicable Guarantee Agencies, as
appropriate;
d. promptly after each Loan Purchase Date, notifying the
applicable Servicer of the Indenture Trustee to which each
Student Loan purchased on such Loan Purchase Date has been
assigned and such other information as may be required under
the applicable Servicing Agreement;
e. causing to be paid to each Servicer on behalf of the Issuer,
but solely from Indenture assets, all fees required to be paid
by the Issuer pursuant to the applicable Servicing Agreement;
f. performing all audits of records and accounts that the Issuer
from time to time may be permitted or required to perform
under the Servicing Agreements;
g. preparing all other documents, reports, filings, instruments,
certificates and opinions as it is the duty of the Issuer to
prepare, file or deliver pursuant to the Servicing Documents;
h. in the event of the default of any Servicer under any
Servicing Agreement, or default of any other party to any
other Basic Document, taking all reasonable steps available to
enforce the Issuer's rights under such documents in respect of
such default;
SECTION 4. TRANSFER AGREEMENT. The Administrator shall take the actions
necessary to cause the duties of the Issuer to be carried out under the
provisions of the Transfer Agreement and any of the rights or obligations
thereunder. The Administrator also shall enforce the rights of the Issuer under
the applicable provisions of the Transfer Agreement to require the Depositor to
repurchase certain Student Loans that have been transferred to the Issuer,
including but not limited to providing notice to the applicable Servicer of each
such repurchase request, endorsing to the Servicer each Student Loan to be
repurchased by the Depositor and taking all other actions necessary to enforce
the Issuer's rights of recourse against the Depositor.
SECTION 5. HIGHER EDUCATION ACT. The Administrator shall take the
actions that are necessary to cause the Issuer to comply with the requirements
of the Higher Education Act and the applicable Guarantee Agencies with respect
to the Student Loans acquired by the Issuer.
SECTION 6. OTHER DUTIES WITH RESPECT TO THE INDENTURE AND SERVICING
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 Issuer 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 Issuer to prepare, file or deliver pursuant to the
Indenture or
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the Servicing Documents, and shall take all appropriate action that it is the
duty of the Issuer to take pursuant to the Indenture or the Servicing Documents.
The Administrator shall administer, perform or supervise the performance of such
other activities in connection with the trust estate of the Indenture (including
the Servicing Documents) as the Issuer 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 Agreement, the Administrator may enter into transactions with or
otherwise deal with any of its Affiliates; PROVIDED that the terms of any such
transactions or dealings shall be, in the Administrator's opinion, no less
favorable to the Issuer than would be available from unaffiliated parties.
SECTION 7. OTHER ADMINISTRATIVE SERVICES. The Issuer 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 Issuer's existence as a bankruptcy-remote Delaware common law trust
holding the assets described hereunder, including but not limited to the
following:
a. subject to the directions of the authorized representatives of
the Issuer, carrying out and performing the day to day
business activities of the Issuer;
b. providing, or causing to be provided, all clerical and
bookkeeping services necessary and appropriate for the Issuer,
including, without limitation, the following services:
(i) maintaining general accounting records of the Issuer,
and preparing for audit such periodic financial
statements as may be necessary or appropriate;
(ii) maintaining records of deposit accounts of the Issuer
established under the Indenture and the Servicing
Documents or otherwise, authorizing withdrawals from
such accounts on behalf of the Issuer and taking all
other actions on behalf of the Issuer as may be
necessary with respect to such accounts;
(iii) (A) preparing for execution by the Issuer and causing
to be filed on behalf of the Issuer such income,
franchise or other tax returns of the Issuer as shall
be required to be filed by applicable law, and (B)
causing to be paid by the Issuer, solely out of funds
of the Issuer, any taxes required to be paid by the
Issuer by applicable law;
(iv) assisting in preparing for execution by the Issuer
amendments to and waivers under the Servicing
Documents and any other documents or instruments
deliverable by the Issuer thereunder or in connection
therewith;
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(v) holding, maintaining and preserving executed copies
of the Servicing Documents (to the extent applicable)
and other documents or instruments executed by the
Issuer thereunder or in connection therewith;
(vi) assisting in giving such other notices, consents and
other communications that the Issuer may from time to
time be required or permitted to give under any of
the Servicing Documents or other documents executed
by the Issuer thereunder or in connection therewith;
(vii) facilitating the annual audit of the financial
statements of the Issuer; 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 Issuer in carrying out the investment and
reinvestment of the funds of the Issuer in accordance with
applicable investment policies; and
d. undertaking such other administrative services as may be
required by the Issuer.
If the Administrator or the Issuer 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 Issuer in accordance with Section 11
hereof.
SECTION 8. EXCEPTIONS. Notwithstanding anything to the contrary in this
Agreement, the Administrator shall not be obligated to, and shall not, (1) make
any payments to the holder of the Notes issued under the Indenture, (2) sell the
trust estates of the Indenture to unrelated third parties, or (3) take any other
action that the Issuer directs the Administrator not to take on its behalf.
SECTION 9. EMPLOYEES; OFFICES. All services to be furnished by the
Administrator under this 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 Issuer, all for the compensation provided
in Section 11 hereof.
SECTION 10. 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 Issuer of
the proposed action and the Issuer shall not have withheld consent or provided
an
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alternative direction. For the purpose of the preceding sentence,
"non-ministerial matters" shall include:
a. the amendment of or any supplement to the Indenture;
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 (other than in connection with the
collection of the Student Loans);
c. the amendment, change or modification of the Servicing
Documents;
d. the appointment of successor Indenture Trustee pursuant to the
Indenture or the appointment of successor administrators or
successor servicers, or the consent to the assignment by the
Indenture Trustee of its obligations under the Indenture; and
e. the removal of the Indenture Trustee.
SECTION 11. COMPENSATION. On or before the last day of each month (the
"Payment Date"), the Issuer shall pay to the Administrator, as compensation for
its services specified hereunder, a fee in the amount of .25% (on a per annum
basis) of the aggregate principal amount of the assets of the Issuer subject to
this Administration Agreement. The monthly fee will be determined on the basis
of the aggregate outstanding principal amount of assets of the Issuer subject to
the Administration Agreement as of the first day of the month of such Payment
Date. If at any time the Issuer requests the Administrator to perform any
additional services not specified hereunder, the Issuer shall pay the
Administrator such additional fees in respect thereof as shall be agreed to by
the Issuer and the Administrator. The Issuer 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
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 Issuer to the Administrator on the next succeeding Payment Date.
The Issuer and the Administrator agree that payments to the
Administrator shall be made out of the Collection Fund held under the Indenture.
SECTION 12. REPRESENTATIONS AND WARRANTIES OF THE ISSUER. The Issuer
makes the following representations:
a. CREATION. The Issuer is duly created 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.
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b. POWER AND AUTHORITY. The Issuer has the power and authority to
execute and deliver this Agreement and to carry out its terms, and the
execution, delivery and performance of this Agreement have been duly authorized
by the Issuer by all necessary action.
c. BINDING OBLIGATION. This Agreement constitutes a legal, valid and
binding obligation of the Issuer 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 PROCEEDINGS. There are no proceedings or investigations pending
against the Issuer or, to its best knowledge, threatened against the Issuer,
before any court, regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Issuer or its properties: (i)
asserting the invalidity of this Agreement, (ii) seeking to prevent the
consummation of any of the transactions contemplated by this 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 Issuer of its obligations
under, or the validity or enforceability of, this Agreement.
e. 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 Issuer in connection with the execution and delivery by the
Issuer of this Agreement and the performance by the Issuer of the transactions
contemplated by this Agreement have been duly obtained, effected or given and
are in full force and effect.
SECTION 13. 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 and in good standing in its State of incorporation 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 corporate power and
authority to execute and deliver this Agreement and to carry out its terms, and
the execution, delivery and performance of this Agreement have been duly
authorized by the Administrator by all necessary corporate action.
c. BINDING OBLIGATION. This 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.
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d. 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 Agreement, (ii) seeking to
prevent the consummation of any of the transactions contemplated by this
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 Agreement.
e. 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 with the execution and delivery by
the Administrator of this Agreement and the performance by the Administrator of
the transactions contemplated by this Agreement have been duly obtained,
effected or given and are in full force and effect.
SECTION 14. TERM. Subject to the terms hereof, the Administrator may
resign at any time. The Administrator or the Issuer may terminate this Agreement
upon at least 45 days' prior written notice to the other party. Notwithstanding
the foregoing, no resignation or termination shall be effective until 45 days
after written notice has been delivered to the Indenture Trustee and the
Administrative Agent under the Indenture.
SECTION 15. OBLIGATION TO SUPPLY INFORMATION. The Issuer shall prepare
and supply, or cause the other parties to the Indenture or the Servicing
Documents to prepare and supply, the Administrator with such information
regarding the performance of the Indenture or the Servicing Documents as the
Administrator may from time to time reasonably request in connection with the
performance of its obligations hereunder.
SECTION 16. 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 Agreement.
The Administrator shall indemnify, defend and hold harmless the Issuer,
and all of the officers, directors, employees and agents of the Issuer, 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 Issuer through, the gross negligence, willful
misfeasance or bad faith of the Administrator in the performance of its duties
under this Agreement or by reason of reckless disregard of its obligations and
duties hereunder or thereunder. The Issuer 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 Issuer after it has assumed such defense.
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For purposes of this Section 16, in the event of the termination of the
rights and obligations of the Administrator (or any successor thereto pursuant
to Section 20 hereof) pursuant to Section 14 hereof or the resignation by such
Administrator pursuant to this Agreement, unless the Issuer 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 20 hereof.
Indemnification under this Section 16 shall survive the termination of
this 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 16 and the Issuer thereafter collects any of such
amounts from others, the Issuer 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 Issuer except as provided under
this Agreement for any action taken or for refraining from the taking of any
action pursuant to this Agreement or for errors in judgment; provided 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 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 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 that the Administrator may
undertake any reasonable action that it may deem necessary or desirable in
respect of this Agreement, the Indenture, the Transfer Agreement and the
Servicing Documents and the rights and duties of the parties to this Agreement,
the Indenture, the Transfer Agreement and the Servicing Documents and the
interests of the holders of the Notes under the Indenture.
SECTION 17. 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) which may result from any merger or
consolidation to which the Administrator shall be a party or (c) which may
succeed to the properties and assets of the Administrator substantially as a
whole, shall be the successor to the Administrator hereunder without the
execution or filing of any documents or any further act by any of the parties to
this Agreement; PROVIDED that the Administrator hereby covenants that, if the
surviving Administrator is other than Student Loan Funding Resources, 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 Agreement, (ii) immediately after giving effect to such transaction, no
representation or warranty made pursuant to Section 13 has been breached and no
Administrator Default, and no event that, after notice or lapse of time, or
both, would become an Administrator Default has occurred and is continuing,
(iii) the surviving Administrator has delivered
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to the Indenture Trustee a certificate of an officer of the surviving
Administrator and an opinion of counsel each stating that such consolidation,
merger or succession and such agreement of assumption comply with this section
and that all conditions precedent, if any, provided for in this Agreement
relating to such transaction have been complied with, and (iv) such transaction
will not result in a material adverse Federal or state tax consequence to the
holders of Notes under the Indenture. Anything in this Section 17 to the
contrary notwithstanding, the Administrator may at any time assign its rights,
obligations and duties under this Agreement to an Affiliate.
SECTION 18. [INTENTIONALLY LEFT BLANK]
SECTION 19. ADMINISTRATOR DEFAULT. The occurrence and continuance of
any one of the following events shall constitute an "Administrator Default":
a. any act or omission by the Administrator that results in a failure
to pay principal or interest or Carryover Interest on the Notes when such
principal or interest Carryover Interest becomes due and payable in accordance
with the Notes and the Indenture;
b. 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 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 Issuer;
c. (i) having entered involuntarily against it an order for relief
under the Bankruptcy Code of 1978, as amended, (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 Bankruptcy Code of 1978, as amended, 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 19(d) hereof or
(vii) taking any action in furtherance of any of the foregoing purposes; or
d. 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 19(c)(v) against the Administrator, which appointment continues
undischarged or which proceeding continues undismissed or unstayed for a period
of 60 or more days.
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In the case of any Administrator Default, so long as such Administrator
Default has not been remedied, the Issuer or the Indenture Trustee 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
16) of the Administrator under this Agreement with respect to such Indenture. On
or after the receipt by the Administrator of such written notice, all authority
and power of the Administrator under this Agreement shall, without further
action, be carried out by the Issuer or shall pass to and be vested in such
successor Administrator as may be appointed under Section 20; and, without
limitation, the Issuer 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
Agreement. All reasonable costs and expenses (including attorneys' fees)
incurred in connection with amending this Agreement to reflect such succession
as Administrator pursuant to this Section 19 shall be paid by the predecessor
Administrator upon presentation of reasonable documentation of such costs and
expenses.
SECTION 20. APPOINTMENT OF SUCCESSOR.
a. Upon receipt by the Administrator of notice of termination pursuant
to Section 14, or the resignation by the Administrator in accordance with the
terms of this Agreement, the predecessor Administrator shall continue to perform
its functions as Administrator under this 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 Issuer. In the event of the termination or resignation hereunder of the
Administrator, the Issuer 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 Agreement, or
such other terms as are agreed to by the Issuer, and all of the rights granted
to the predecessor Administrator by the terms and provisions of this Agreement.
SECTION 21. RELIANCE ON INFORMATION OBTAINED FROM THIRD PARTIES. The
Issuer 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 Indenture and the Servicing 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 which may result therefrom.
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SECTION 22. 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 Agreement on the date that such
writing is received by the intended recipient thereof in accordance with the
provisions of this Section 22. Unless otherwise specified in a notice sent or
delivered in accordance with the foregoing provisions of this Section 22,
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:
The Issuer:
Firstar Bank, National Association, as Co-Owner Trustee
of Student Loan Funding 1998-A/B Trust
000 Xxxxxx Xxxxxx
XX0000 X.X. Xxx 0000
Xxxxxxxxxx, Xxxx 00000-0000
The Administrator:
Student Loan Funding Resources, Inc.
Xxx Xxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxx 00000
Attention: Treasurer
SECTION 23. AMENDMENT. This Agreement may be amended in writing by the
Administrator and the Issuer. Promptly after the execution of any such
amendment, the Administrator shall furnish written notification of the substance
of such amendment to the Indenture Trustee.
SECTION 24. ASSIGNMENT. Except as provided in Section 17 hereof or as
contemplated by the Indenture, this Agreement may not be assigned by either
party hereto without the prior written consent of the other party.
SECTION 25. INDEPENDENCE OF ADMINISTRATOR. For all purposes of this
Agreement, the Administrator shall be an independent contractor. Unless
expressly authorized by the Issuer, the Administrator shall have no authority to
act for or represent the Issuer in any way and shall not otherwise be deemed an
agent of the Issuer.
SECTION 26. NO JOINT VENTURE. Nothing contained in this Agreement shall
constitute the Issuer 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.
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SECTION 27. 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 or entity even though such person or entity may engage in
business activities similar to those of the Issuer.
SECTION 28. NO PETITION. The Administrator covenants and agrees that,
notwithstanding the termination of this Agreement, the Administrator will not
institute against, or join in instituting against the Issuer, 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 Issuer's affairs or appointing a receiver,
liquidator, trustee, or other similar official, of the Issuer or any substantial
part of its property, for one year and a day after the termination of this
Agreement. This Section 28 shall survive the termination of this Agreement.
SECTION 29. GOVERNING LAW. This 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 30. ENTIRE AGREEMENT. This 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 31. SUCCESSORS; COUNTERPARTS.
a. This Agreement shall be binding upon, inure to the benefit of and be
enforceable by the respective successors and assigns of each of the Issuer and
the Administrator.
b. This 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 33. CAPTIONS. The captions in this Agreement are for
convenience of reference only and shall not define or limit any of the terms or
provisions hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
STUDENT LOAN FUNDING 1998-A/B TRUST
By Firstar Bank, National Association , not in its
individual capacity, but solely as Co-Owner
Trustee, on behalf of the Issuer
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President & Trust Officer
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STUDENT LOAN FUNDING RESOURCES, INC.
as Administrator
By: /s/ Xxxxx X. Xxxxx
------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
Firstar Bank, National Association, as the Eligible Lender Trustee
under the Indenture, hereby agrees to take such actions and execute such
documents as may be reasonably requested by the Administrator in order for the
Administrator to provide the services and perform its duties and
responsibilities under the foregoing Agreement.
Firstar Bank, National Association,
as Eligible Lender Trustee
By: /s/ Xxxxx X. Xxxxxxx
------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President & Trust Officer
Firstar Bank, National Association, as the Indenture Trustee under the
Indenture, hereby agrees to take such actions and execute such documents as may
be reasonably requested by the Administrator in order for the Administrator to
provide the services and perform its duties and responsibilities under the
foregoing Agreement.
Firstar Bank, National Association,
as Indenture Trustee
By: /s/ Xxxxx X. Xxxxxxx
------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President & Trust Officer
