Exhibit 10.10
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MARKET AGENT AGREEMENT
by and between
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & CO.
as Market Agent,
EDUCATION FUNDING CAPITAL TRUST-I
as Issuer
and
FIFTH THIRD BANK
as Indenture Trustee
Dated as of , 2003
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relating to
Education Funding Capital Trust-I
$1,023,000,000 Education Loan Backed Notes
consisting of
Auction Rate Education Loan Backed Notes,
Series 2002A1-1, Series 2002A1-2, Series 2002A1-3,
Series 2002A1-4, Series 2002A1-5, Series 2002A1-6,
Series 2002A1-7, Series 2002A1-8, Series 2002A1-9,
Series 2002A1-10, Series 2002A1-11, Series 2002A1-12,
Series 2002A1-13, Series 2002B1-1, Series 2002B1-2
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MARKET AGENT AGREEMENT
THIS MARKET AGENT AGREEMENT (this "Agreement") dated as of , 2003
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is by and among ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & CO. ("WRH"), EDUCATION FUNDING CAPITAL
TRUST-I (the "Issuer") and FIFTH THIRD BANK, as Indenture Trustee (the
"Indenture Trustee"), and provides for WRH to act as the Market Agent as
provided for and defined in the Indenture of Trust dated May 1, 2002 among the
Issuer, the Indenture Trustee and Fifth Third Bank, as Trust Eligible Lender
Trustee (the "Trust Eligible Lender Trustee") (as heretofore amended and
supplemented, the "Base Indenture"), as supplemented by the 2002 Series A1&B1
Supplemental Indenture of Trust dated as of , 2003 (the "Fourth
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Supplement", and together with the Base Indenture, the "Indenture") among the
Issuer, the Indenture Trustee and the Trust Eligible Lender Trustee, which
provides for the issuance of the Issuer's Auction Rate Education Loan Backed
Notes, Series 2002A1-1 Notes, Series 2002A1-2 Notes, Series 2002A1-3 Notes,
Series 2002A1-4 Notes, Series 2002A1-5 Notes, Series 2002A1-6 Notes, Series
2002A1-7 Notes, Series 2002A1-8 Notes, Series 2002A1-9 Notes, Series 2002A1-10
Notes, Series 2002A1-11 Notes, Series 2002A1-12 Notes, Series 2002A1-13 Notes,
Series 2002B1-1 and Series 2002B1-2 Notes (the "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 WRH as
the Market Agent for the Notes, and WRH hereby accepts such appointment as
Market Agent for the Notes with respect to the duties of the Market Agent set
forth in the Fourth Supplement. In its capacity as Market Agent for the Notes,
WRH shall perform the duties set forth for the Market Agent in the Fourth
Supplement, 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 A to
the Fourth Supplement, (b) specifying a change in any Auction Date as set forth
in Section 2.02(h) of Appendix A to the Fourth Supplement, 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
Fourth Supplement. The Market Agent shall be obligated to perform only such
duties as are specifically set forth in the Fourth Supplement with respect to
the 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 WRH 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 , 2003 and shall continue in full force and
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effect up to and
2
including the earlier of June 1, 2042 or such date when no Notes are
outstanding, subject to the right of WRH 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 the Issuer and
the acceptance of such appointment by such successor Market Agent. WRH 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 WRH
under this Agreement, it is understood and agreed that the Issuer shall pay to
WRH for services performed an annual fee equal to $1.00, to be paid on the date
of issuance of the Notes and on the first Business Day of each June thereafter,
commencing June 2003. It is understood and agreed that the payment of the fees
referred to herein shall be made without further notice from WRH.
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:
WRH: Indenture Trustee:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & CO. FIFTH THIRD BANK
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ Trust Administration
▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ MD 10AT60
Attention: Syndicate Desk ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Telephone Number: (▇▇▇) ▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile Number: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Issuer:
EDUCATION FUNDING CAPITAL TRUST-I
c/o Fifth Third Bank
Corporate Trust Administration
MD 10AT60
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Wilmington Trust Company
▇▇▇▇▇▇ Square North
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Trust Administration
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
WRH, 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, WRH, 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 WRH, 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 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-I,
as Issuer, by Fifth Third Bank, not in
its individual capacity, but solely as
Co-Owner Trustee on behalf of the Issuer
By:
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Name:
Title:
FIFTH THIRD BANK, as Indenture Trustee
By:
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Name:
Title:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & CO., as Market Agent
By:
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Name:
Title: