EXHIBIT. 99.4
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ADMINISTRATION AGREEMENT
among
GMAC EDUCATION LOAN FUNDING TRUST-I,
as Issuer
WILMINGTON TRUST COMPANY,
as Delaware Trustee,
ZIONS FIRST NATIONAL BANK,
as Indenture Trustee
and
GMAC COMMERCIAL HOLDING CAPITAL CORP.,
as Administrator
Dated as of March 1, 2003
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TABLE OF CONTENTS
Page
Section 1. Duties of the Administrator........................................................2
Section 2. Annual Statements as to Compliance; Notice of Default; Financial
Statements.........................................................................3
Section 3. Representations of Administrator...................................................4
Section 4. Liability of Administrator; Indemnities............................................5
Section 5. Limitation on Liability of Administrator and Others................................6
Section 6. Administrator May Own Notes........................................................7
Section 7. Records............................................................................7
Section 8. Compensation.......................................................................7
Section 9. Additional Information to be Furnished.............................................7
Section 10. Independence of the Administrator..................................................7
Section 11. No Joint Venture...................................................................7
Section 12. Other Activities of the Administrator..............................................8
Section 13 Term of Agreement; Resignation and Removal of Administrator; Waiver
of Past Defaults...................................................................8
Section 14. Action upon Termination, Resignation or Removal....................................9
Section 15. Notices...........................................................................10
Section 16. Amendments........................................................................10
Section 17. Successors and Assigns............................................................10
Section 18. Governing Law.....................................................................11
Section 19. Headings..........................................................................11
Section 20. Counterparts......................................................................11
Section 21. Severability......................................................................11
Section 22. Limitation of Liability of Delaware Trustee and Indenture Trustee.................11
Section 23 No Petition.......................................................................11
EXHIBIT A POWER OF ATTORNEY
THIS
ADMINISTRATION AGREEMENT dated as of March 1, 2003 (as amended from
time to time, this "
Administration Agreement"), among GMAC EDUCATION LOAN
FUNDING TRUST-I, a
Delaware statutory trust (the "Issuer"), WILMINGTON TRUST
COMPANY, a
Delaware trust company, not in its individual capacity but solely as
Delaware Trustee (the "
Delaware Trustee"), ZIONS FIRST NATIONAL BANK, a national
banking association, not in its individual capacity but solely as Indenture
Trustee (in such capacity, the "Indenture Trustee") and GMAC COMMERCIAL HOLDING
CAPITAL CORP., a Colorado corporation, as Administrator (the "Administrator"),
W I T N E S S E T H :
WHEREAS, the Issuer will issue its (a) Student Loan Asset-Backed Notes (the
"Notes") pursuant to an Indenture of Trust, dated as of March 1, 2003, among the
Issuer, the Indenture Trustee and Zions First National Bank, as eligible lender
trustee (the "Eligible Lender Trustee") (together with any Supplemental
Indentures and any amendments thereto made in accordance with their respective
terms, the "Indenture"); and (b) its Trust Certificates pursuant to an Amended
and Restated Trust Agreement, dated as of March 1, 2003 (the "Trust Agreement"),
between the
Delaware Trustee and
GMAC ELF LLC, as Depositor (together with its
successors in interest, the "Depositor"); and
WHEREAS, pursuant to an Eligible Lender Trust Agreement dated as of
March 1, 2003 (the "Eligible Lender Agreement"), between the Issuer and the
Eligible Lender Trustee, the Eligible Lender Trustee shall hold legal title to
the Financed Student Loans acquired by the Issuer as beneficial owner; and
WHEREAS, pursuant to the Indenture, the Issuer is assigning its interests
in the Financed Student Loans and other collateral (the "Collateral") to the
Indenture Trustee; and
WHEREAS, the Issuer and the
Delaware Trustee desire to have the
Administrator perform certain of the duties of the Issuer and the
Delaware
Trustee referred to in the Indenture, the Supplemental Indentures, the Trust
Agreement, the Derivative Products, the Servicing Agreement, the Subserving
Agreements, the Loan Sale Agreements, the Custody Agreements, the Guarantee
Agreements and the Eligible Lender Trust Agreements (each as defined in the
Indenture) (collectively, the "Basic Documents") and any other documents signed
by the Issuer or required by the Higher Education Act with respect to the
Financed Student Loans (collectively with the Basic Documents, the "Trust
Related Agreements") and to provide such additional services consistent with the
terms of this
Administration Agreement and the Trust Related Agreements as the
Issuer and the
Delaware Trustee may from time to time request; and
WHEREAS, the Administrator has the capacity to provide the services
required hereby and is willing to perform such services for the Issuer and the
Delaware Trustee on the terms set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
and other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties agree as follows:
Capitalized terms used and not otherwise defined herein shall have the
meanings assigned to such terms in the Basic Documents.
SECTION 1. DUTIES OF THE ADMINISTRATOR.
(a) DUTIES WITH RESPECT TO THE TRUST RELATED AGREEMENTS. The
Administrator is authorized and directed to execute and deliver on behalf
of the Issuer each certificate or other document attached as an exhibit to
or contemplated by the Basic Documents to which the Issuer is a party, to
the extent not otherwise executed and delivered by the Issuer. The
Administrator agrees to perform all its duties as Administrator, the duties
of the Issuer under the Trust Related Agreements and to act as Calculation
Agent under any Derivative Product, if applicable. In addition, the
Administrator shall consult with the Delaware Trustee regarding the duties
of the Issuer and the Delaware Trustee under the Trust Related Agreements.
The Administrator shall monitor the performance of the Issuer and shall
advise the Indenture Trustee and the Delaware Trustee when action is
necessary to comply with the Issuer's duties under the Trust Related
Agreements. The Administrator shall prepare for execution by the Issuer, or
shall cause the preparation by other appropriate persons or entities of,
all such documents, reports, filings, instruments, certificates and
opinions that it shall be the duty of the Issuer to prepare, file or
deliver pursuant to the Trust Related Agreements. In furtherance of the
foregoing, the Administrator shall take all appropriate action that is the
duty of the Issuer to take pursuant to the Trust Related Agreements or
under the Higher Education Act.
(b) ADDITIONAL DUTIES.
(i) In addition to the duties of the Administrator set forth
above, the Administrator shall perform, or cause to be performed,
its duties and obligations and the duties and obligations of the
Delaware Trustee on behalf of the Issuer under the Trust Agreement.
(ii) In furtherance of the foregoing, the Issuer shall execute
and deliver to the Administrator and to each successor Administrator
appointed pursuant to the terms hereof, one or more powers of
attorney substantially in the form of Exhibit A hereto, appointing
the Administrator the attorney-in-fact of the Issuer for the purpose
of executing on behalf of the Issuer all such documents, reports,
filings, instruments, certificates and opinions.
(iii) In carrying out the foregoing duties or any of its other
obligations under this
Administration Agreement, the Administrator
may enter into transactions or otherwise deal with any of its
affiliates; provided, however, that the terms of any such
transactions or dealings shall be in accordance with any directions
received from the Issuer or the Delaware Trustee and shall be, in
the Administrator's opinion, no less favorable to the Issuer than
would be available from unaffiliated parties.
(iv) In carrying out any of its obligations under this
Administration Agreement, the Administrator may act either directly
or through agents, attorneys,
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accountants, independent contractors or auditors and enter into
agreements with any of them.
(c) NON-MINISTERIAL MATTERS.
(i) With respect to matters that in the reasonable judgment
of the Administrator are non-ministerial, the Administrator shall
not be under any obligation to take any action, and in any event
shall not take any action, unless the Administrator shall have
received instructions from the Delaware Trustee or the Depositor.
For the purpose of the preceding sentence, "non-ministerial matters"
shall mean:
(A) the amendment of or any supplement to the Trust
Related Agreements;
(B) the initiation of any action, claim or lawsuit by the
Issuer and the compromise of any action, claim or lawsuit
brought by or against the Issuer, except for actions, claims or
lawsuits initiated in the ordinary course of business by the
Issuer or its agents or nominees for the collection of amounts
owed in respect of Financed Student Loans;
(C) the appointment of any successor Administrator,
Delaware Trustee or Indenture Trustee pursuant to the
Indenture;
(D) the removal of the Indenture Trustee or the Delaware
Trustee; and
(E) the amendment, change or modification of this
Administration Agreement or any Trust Related Agreement, except
for amendments, changes or modifications that do not either (1)
reduce in any manner the amount of, or delay the timing of, or
collections of payments with respect to the Financed Student
Loans or (2) materially reduce the underwriting standards with
respect to the Financed Student Loans.
(ii) Notwithstanding anything to the contrary in this
Administration Agreement, the Administrator shall not be obligated
to, and shall not (A) make any payments to the Noteholders under the
Trust Related Agreements, (B) sell the Trust Estate pursuant to the
Indenture or (C) take any action that the Issuer directs the
Administrator not to take on its behalf.
SECTION 2. ANNUAL STATEMENTS AS TO COMPLIANCE; NOTICE OF DEFAULT; FINANCIAL
STATEMENTS.
(a) The Administrator shall deliver to the Indenture Trustee and to
the Rating Agencies on or before 150 days after the end of the fiscal year
of the Administrator, an Officer's Certificate of the Administrator dated
as of March 31 of the preceding year, stating that (i) a review of the
activities of the Administrator during the preceding 12-month period (or,
in the case of the first such certificate, during the period from the
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Closing Date to March 31, 2003) and of its performance under this Agreement
has been made under such Officer's supervision and (ii) to the best of such
Officer's knowledge, based on such review, the Administrator has fulfilled
its obligations in all material respects under this Agreement or, if there
has been a material default in the fulfillment of any such obligation,
specifying each such material default known to such Officer and the nature
and status thereof. A copy of each such Officer's Certificate may be
obtained by any Noteholder by a request in writing to the Indenture Trustee
addressed to its Corporate Trust Office, together with evidence
satisfactory to the Indenture Trustee that such Person is one of the
foregoing parties. The Indenture Trustee shall be entitled to rely on this
annual statement of compliance from the Administrator without any further
duty to investigate the statements made therein.
(b) The Administrator shall deliver to the Indenture Trustee and
the Rating Agencies, promptly after having obtained knowledge thereof, but
in no event earlier than (15) Business Days prior to such default, written
notice in an Officer's Certificate of the Administrator of any event which
with the giving of notice or lapse of time, or both, would become a default
of the Administrator hereunder.
SECTION 3. REPRESENTATIONS OF ADMINISTRATOR. The Administrator makes the
following representations. The representations speak as of the execution and
delivery of this Agreement and as of the Closing Date, and shall survive the
sale of Financed Eligible Loans to the Issuer and the pledge thereof to the
Indenture Trustee pursuant to the Indenture.
(a) ORGANIZATION AND GOOD STANDING. The Administrator is duly
organized and validly existing under the laws of the State of Colorado,
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.
(d) NO VIOLATION. The consummation of the transactions contemplated
by this 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 charter or bylaws of the Administrator, or any indenture,
agreement or other instrument to which the Administrator is a party or by
which it shall be 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 (other than pursuant to the Trust
Related Agreements); nor violation any law or, to the knowledge of the
Administrator, any order, rule or regulation applicable to the
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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 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 or any of
the other Trust Related Agreements, (ii) seeking to prevent the issuance of
the Notes or the consummation of any of the transactions contemplated by
this Agreement or any of the other Trust Related Agreements, (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,
any of the other Trust Related Agreements or the Notes or (iv) seeking to
affect adversely the Federal or state income tax attributes of the Issuer
or the Notes.
(f) ALL CONSENTS. All authorizations, consents, orders or approvals
of or registrations or declarations with any court, regulatory body,
administrative agency or other government 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 4. LIABILITY OF ADMINISTRATOR; INDEMNITIES.
(a) The Administrator shall be liable in accordance herewith only
to the extent of the obligations specifically undertaken by the
Administrator under this Agreement.
(b) The Administrator shall indemnify, defend and hold harmless the
Issuer and the Noteholders and any 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 such cost,
expense, loss, claim, damage or liability arose out of, or was imposed upon
any such Person through, the negligence, misconduct 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.
(c) The Administrator shall indemnify, defend and hold harmless the
Indenture Trustee and the Delaware Trustee in their individual capacities
and any of their respective officers, directors, employees and agents
against any and all loss, liability or expense (including attorneys' fees)
incurred by it in connection with the performance of its duties under the
Indenture and the other Trust Related Agreements. The Indenture Trustee or
the Delaware Trustee shall notify the Issuer and the Administrator promptly
of any claim for which it may seek indemnity. Failure by the Indenture
Trustee or the Delaware Trustee to so notify the Issuer and the
Administrator shall not relieve the Issuer or the Administrator of its
obligations hereunder and under the other Trust Related
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Agreements. The Administrator shall defend the claim and the Administrator
shall not be liable for the legal fees and expenses of the Indenture
Trustee or the Delaware Trustee after it has assumed such defense;
provided, however, that, in the event that there may be a conflict between
the positions of the Indenture Trustee or the Delaware Trustee, as
applicable, and the Administrator in conducting the defense of such claim,
the Indenture Trustee or the Delaware Trustee, as applicable, shall be
entitled to separate counsel the fees and expenses of which shall be paid
the Administrator on behalf of the Issuer. Neither the Issuer nor the
Administrator need reimburse any expense or indemnify against any loss,
liability or expense incurred by the Indenture Trustee or the Delaware
Trustee through the Indenture Trustee's or Delaware Trustee's, as
applicable, own willful misconduct, negligence or bad faith.
(d) Without limiting the generality of the foregoing, the
Administrator shall indemnify, defend and hold harmless the Indenture
Trustee in its individual capacity and any of its officers, directors,
employees and against any and all liability relating to or resulting from
any of the following:
(i) any claim that the Financed Eligible Loans (or any
guarantee with respect thereto) are delinquent, uncollectible,
uninsured, illegal, invalid or unenforceable;
(ii) any claim that the Financed Eligible Loans have not been
made, administered, serviced or collected in accordance with
applicable federal and state laws or the requirements of any
Guarantor; or
(iii) any claim that any original note or other document
evidencing or relating to the Financed Eligible Loans has been lost,
misplaced or destroyed.
(e) For purposes of this Section, in the event of the termination
of the rights and obligations of the Administrator (or any successor
thereto) as Administrator pursuant to the terms hereof or a resignation by
such Administrator pursuant to this Agreement, such Administrator shall be
deemed to be the Administrator pending appointment of a successor
Administrator pursuant to Section 13. Indemnification under this Section
shall survive the resignation or removal of the Indenture Trustee and the
Delaware Trustee or the termination of this Agreement and shall include
reasonable fees and expenses of counsel and expenses of litigation. If the
Administrator shall have made any indemnity payments pursuant to this
Section and the Person to or on behalf of whom such payments are made
thereafter collects any of such amounts from others, such Person shall
promptly repay such amounts to the Administrator, without interest.
SECTION 5. LIMITATION ON LIABILITY OF ADMINISTRATOR AND OTHERS.
(a) Neither the Administrator nor any of its directors, officers,
employees or agents shall be under any liability to the Issuer, the
Delaware Trustee, the Noteholders or to the Indenture Trustee 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, however, that these provisions shall not protect the
Administrator or
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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.
(b) 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 to administer the
Financed Student Loans and the Trust in accordance with this Agreement 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 Agreement and the other
Trust Related Agreements and the rights and duties of the parties to this
Agreement and the other Trust Related Agreements and the interests of the
Noteholders under the Indenture and this Agreement.
SECTION 6. ADMINISTRATOR MAY OWN NOTES. The Administrator and any Affiliate
thereof may in its individual or any other capacity become the owner or pledgee
of Notes with the same rights as it would have if it were not the Administrator
or an Affiliate thereof, except as expressly provided herein or in any other
Trust Related Agreements.
SECTION 7. RECORDS. The Administrator shall maintain appropriate books of
account and records relating to services performed hereunder, which books of
account and records shall be accessible for inspection by the Issuer, the
Indenture Trustee, the Noteholders, the Delaware Trustee and the Depositor at
any time during normal business hours.
SECTION 8. COMPENSATION. As compensation for the performance of the
Administrator's obligations under this
Administration Agreement and as
reimbursement for its expenses related thereto, the Administrator shall be
entitled to a fee equal to $__________ per annum payable as set forth in the
Indenture (the "Administration Fee"). The payment of the foregoing
Administration Fee shall be solely an obligation of the Issuer, payable out of
the Trust Estate.
SECTION 9. ADDITIONAL INFORMATION TO BE FURNISHED. The Administrator
shall furnish to the Issuer and the Indenture Trustee from time to time such
additional information regarding the Trust Estate as the Issuer or the Indenture
Trustee shall reasonably request.
SECTION 10. INDEPENDENCE OF THE ADMINISTRATOR. For all purposes of this
Administration Agreement, the Administrator shall be an independent contractor
and, notwithstanding its affiliation with the Issuer, shall not be subject to
the supervision of the Issuer, the Indenture Trustee or the Delaware Trustee
with respect to the manner in which it accomplishes the performance of its
obligations hereunder.
SECTION 11. NO JOINT VENTURE. Nothing contained in this Administration
Agreement (a) shall constitute the Administrator and any of the Issuer, the
Indenture Trustee, the Delaware Trustee or the Depositor as members of any
partnership, joint venture, association, syndicate, unincorporated business or
other separate entity; (b) shall be construed to impose any liability as
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such on any of them; or (c) shall be deemed to confer on any of them any
express, implied or apparent authority to incur any obligation or liability on
behalf of the others.
SECTION 12. OTHER ACTIVITIES OF THE ADMINISTRATOR. Nothing herein shall
prevent the Administrator or its affiliates from engaging in other businesses
or, in its or their sole discretion, from acting in a similar capacity as an
Administrator for any other person or entity even though such person or entity
may engage in business activities similar to those of the Issuer, the Delaware
Trustee or the Indenture Trustee.
SECTION 13. TERM OF AGREEMENT; RESIGNATION AND REMOVAL OF ADMINISTRATOR;
WAIVER OF PAST DEFAULTS.
(a) This Administration Agreement shall continue in force until the
dissolution of the Issuer or replacement of the Administrator, upon which
event this Administration Agreement shall automatically terminate.
(b) Subject to Section 13(e) and (f) hereof, the Administrator may
resign its duties hereunder by providing the Issuer, the Delaware Trustee,
the Depositor and the Indenture Trustee with at least 60 days' prior
written notice.
(c) Subject to Section 13(e) and (f) hereof, the Issuer may remove
the Administrator without cause by providing the Administrator with at
least 60 days' prior written notice.
(d) Subject to Section 13(e), (f) and (g) hereof, the Administrator
may be removed immediately upon written notice of termination from the
Indenture Trustee, the Issuer or the holders of not less than 25% of the
Highest Priority Obligations to the Administrator if any of the following
events shall occur:
(i) the Administrator shall default in the performance of any
of its duties under this Administration Agreement and, after notice
of such default, shall not cure such default within five Business
Days (or, if such default cannot be cured in such time, the failure
to give, within ten Business Days, such assurance of cure as shall
be reasonably satisfactory to the Issuer);
(ii) the commencement by the Administrator of a voluntary case
or other proceeding seeking liquidation, reorganization or other
relief under any bankruptcy, insolvency or other similar law, or
seeking the appointment of a trustee, receiver, liquidator,
custodian, or other similar official, making a general assignment by
the Administrator for the benefit of its creditors, the
Administrator declaring a moratorium with respect to its debts or
failure by the Administrator to generally pay its debts as they
become due; or
(iii) the commencement in respect of the Administrator of an
involuntary case or other proceeding seeking liquidation,
reorganization or other relief under any bankruptcy, insolvency or
other similar law, or seeking by the Administrator of the
appointment of a trustee, receiver, liquidator, custodian or other
similar law, or seeking the appointment of a trustee, receiver,
liquidator,
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custodian or other similar official, provided such action is not
dismissed within 60 days.
The Administrator agrees that if any of the events specified in
clause (ii) or (iii) of this Section shall occur, it shall give written
notice thereof to the Delaware Trustee, the Noteholders, the Indenture
Trustee and the Rating Agencies within five Business Days after the
happening of such event. The Administrator agrees that it will not commence
or consent to the events specified in clause (iii) without the prior
written consent of the Issuer, the Indenture Trustee and the Delaware
Trustee for so long as any Note is outstanding.
(e) No resignation or removal of the Administrator pursuant to this
Section 14 shall be effective until (i) a successor Administrator shall
have been appointed by the Indenture Trustee, the Issuer or the holders of
not less than 25% of the Highest Priority Obligations (with the consent of
the Delaware Trustee and the Indenture Trustee) and (ii) shall have agreed
in writing to be bound by the terms of this Administration Agreement in the
same manner and to the same extent as the Administrator is bound hereunder.
(f) The appointment of any successor Administrator shall be
effective only if each Rating Agency shall have been given 10 days' prior
notice of such proposed appointment, and a Rating Confirmation shall have
been obtained with respect to such appointment.
(g) With respect to Section 13(d) above, the holders of a majority
of the Highest Priority Obligations may waive any default by the
Administrator which does not adversely affect the Indenture Trustee, the
Issuer or the holders of a majority of the Highest Priority Obligations. No
waiver of any Administrator default pursuant to this Section 13(g) will
impair the rights of the holders of a majority of the Highest Priority
Obligation to exercise rights with respect to future Administrator defaults
pursuant to Section 13(d) above.
SECTION 14. ACTION UPON TERMINATION, RESIGNATION OR REMOVAL. Promptly upon
the effective date of termination of this Administration Agreement pursuant to
Section 13(a) hereof or the resignation or removal of the Administrator pursuant
to Section 13(b) or (c) hereof, respectively, the Administrator shall be
entitled to be paid all fees and reimbursable expenses accruing to it to the
date of such termination, resignation or removal. The Administrator shall
forthwith upon such termination pursuant to Section 13(a) hereof deliver to the
Issuer all property and documents of or relating to the Trust Estate then in the
custody of the Administrator. In the event of the resignation or removal of the
Administrator pursuant to Section 13(b) or (c) hereof, respectively, the
Administrator shall cooperate with the Issuer and take all reasonable steps
requested to assist the Issuer in making an orderly transfer of the duties of
the Administrator.
SECTION 15. NOTICES. Any notice, report or other communication given
hereunder shall be in writing and addressed as follows:
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If to the Issuer, to: GMAC Education Loan Funding Trust-I
c/o Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Administration
If to the
Administrator, to: GMAC Commercial Holding Capital Corp.
0000 Xxxxxxxxxx Xx., Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Page
If to the Indenture
Trustee, to: Zions First National Bank
000 Xxxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Department
If to the Delaware
Trustee, to: Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Administration
or to such other address as any party shall have provided to the other parties
in writing. Any notice required to be in writing hereunder shall be deemed given
if such notice is mailed by certified mail, postage prepaid, or hand delivered
to the address of such party as provided above.
SECTION 16. AMENDMENTS. This Administration Agreement may be amended from
time to time by the parties hereto so long as a Rating Confirmation has been
obtained with respect to such amendment.
SECTION 17. SUCCESSORS AND ASSIGNS. This Administration Agreement may not
be assigned by the Administrator unless such assignment is previously consented
to in writing by the Issuer, the Delaware Trustee and the Indenture Trustee, and
unless a Rating Confirmation has been obtained with respect to, such assignment.
An assignment with such consent and satisfaction, if accepted by the assignee,
shall bind the assignee hereunder in the same manner and to the same extent as
the Administrator is bound hereunder. Notwithstanding the foregoing, this
Administration Agreement may be assigned by the Administrator without the
consent of the Issuer, the Indenture Trustee or the Delaware Trustee to a
corporation or other organization that is a successor (by merger, consolidation
or purchase of assets) to the Administrator; provided that such successor
organization executes and delivers to the Issuer, the Delaware Trustee and the
Indenture Trustee an agreement in which such corporation or other organization
agrees to be bound hereunder by the terms of the assignment in the same manner
and to the same extent as the Administrator is bound hereunder, and a Rating
Confirmation shall have been obtained with
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respect to, such assignment. Subject to the foregoing, this Administration
Agreement shall bind any such permitted successors or assigns of the parties
hereto.
SECTION 18. GOVERNING LAW. THIS ADMINISTRATION AGREEMENT SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE SUBSTANTIVE LAWS OF THE STATE OF
DELAWARE (WITHOUT REGARD TO CONFLICT OF LAW PROVISIONS) APPLICABLE TO CONTRACTS
TO BE PERFORMED ENTIRELY WITHIN SUCH STATE, INCLUDING ALL MATTERS OF
CONSTRUCTION, VALIDITY AND PERFORMANCE.
SECTION 19. HEADINGS. The section headings hereof have been inserted for
convenience of reference only and shall not be construed to affect the meaning,
construction or effect of this Administration Agreement.
SECTION 20. COUNTERPARTS. This Administration Agreement may be executed
by the parties hereto in separate counterparts, each of which when so executed
and delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
SECTION 21. SEVERABILITY. Any provision of this Administration Agreement
that is prohibited or unenforceable in any jurisdiction shall be ineffective to
the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
SECTION 22. LIMITATION OF LIABILITY OF DELAWARE TRUSTEE AND INDENTURE
TRUSTEE. Notwithstanding anything contained herein to the contrary, this
instrument has been executed by each of Wilmington Trust Company and Zions First
National Bank, not in their individual capacity but solely in its capacity as
Delaware Trustee or Indenture Trustee, respectively, and in no event shall
Wilmington Trust Company or Zions First National Bank in their individual
capacity or any beneficial owner of the Issuer have any liability for the
representations, warranties, covenants, agreements or other obligations of the
Issuer hereunder, as to all of which recourse shall be had solely to the assets
of the Issuer.
SECTION 23. NO PETITION. The parties hereto will not at any time institute
against the Issuer any bankruptcy proceeding under any United States federal or
State bankruptcy or similar law in connection with any obligations of the Issuer
under any Basic Document.
11
IN WITNESS WHEREOF, the parties have caused this Administration Agreement
to be duly executed and delivered as of the day and year first above written.
GMAC EDUCATION LOAN FUNDING TRUST-I
By: WILMINGTON TRUST COMPANY, not
in its individual capacity but solely as
Delaware Trustee
By
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Name
-----------------------------------------
Title
----------------------------------------
WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as Delaware
Trustee
By
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Name
-----------------------------------------
Title
----------------------------------------
ZIONS FIRST NATIONAL BANK, not in its
individual capacity but solely as Indenture
Trustee
By
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Xxxxx X. Xxxx, Vice President
GMAC COMMERCIAL HOLDING CAPITAL
CORP., as Administrator
By
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Xxxxxx X. Page
12
EXHIBIT A
POWER OF ATTORNEY
STATE OF DELAWARE )
)
COUNTY OF NEW CASTLE )
KNOW ALL MEN BY THESE PRESENTS, that GMAC Education Loan Funding Trust-I
(the "Issuer"), does hereby make, constitute and appoint GMAC Commercial Holding
Capital Corp., as Administrator under the Administration Agreement, dated as of
March 1, 2003 (the "Administration Agreement"), among the Issuer, Wilmington
Trust Company, as Delaware Trustee, Zions First National Bank, as Indenture
Trustee and GMAC Commercial Holding Capital Corp., as Administrator, as the same
may be amended from time to time, and its agents and attorneys, as
Attorney-in-Fact to execute on behalf of the Issuer all such documents, reports,
filings, instruments, certificates and opinions as it shall be the duty of the
Issuer to prepare, file or deliver pursuant to the Trust Related Agreements,
including, without limitation, to appear for and represent the Issuer in
connection with the preparation, filing and audit of federal, state and local
tax returns pertaining to the Issuer, and with full power to perform any and all
acts associated with such returns and audits that the Issuer could perform,
including without limitation, the right to distribute and receive confidential
information, defend and assert positions in response to audits, initiate and
defend litigation, and to execute waivers of restrictions on assessments of
deficiencies, consents to the extension of any statutory or regulatory time
limit, and settlements.
All powers of attorney for this purpose heretofore filed or executed by the
Issuer are hereby revoked.
Capitalized terms that are used and not otherwise defined herein shall have
the meanings ascribed thereto in the Administration Agreement.
EXECUTED as of this ____ day of March, 2003.
GMAC EDUCATION LOAN FUNDING TRUST-I
By: WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as
Delaware Trustee
By
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Name
-----------------------------------------
Title
----------------------------------------
