EXHIBIT 99.2
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SERVICING CONTRACTOR AGREEMENT
by and between
GMAC COMMERCIAL HOLDING CAPITAL CORP.,
as Contractor
and
GMAC EDUCATION LOAN FUNDING TRUST-I,
as Owner
Dated as of March 1, 2003
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
Section 1.01. Defined Terms..............................................................................1
ARTICLE II
DUTIES
Section 2.01. Duties of Contractor.......................................................................2
Section 2.02. General Standards for Servicing Financed Student Loans.....................................2
Section 2.03. Power of Attorney..........................................................................4
Section 2.04. Collection of Financed Student Loan Payments...............................................4
Section 2.05. Realization Upon Student Loans.............................................................5
Section 2.06. No Impairment..............................................................................5
Section 2.07. Servicer's Report..........................................................................5
Section 2.08. Annual Statement as to Compliance; Notice of Default.......................................6
Section 2.09. Access to Certain Documentation and Information Regarding Financed Student Loans...........7
Section 2.10. Appointment of Subcontractors..............................................................7
Section 2.11. Deposits into Accounts.....................................................................7
ARTICLE III
THE CONTRACTOR
Section 3.01. Representations of Contractor..............................................................8
Section 3.02. Limit on Liability of Contractor...........................................................9
Section 3.03. Contractor Fee and Reimbursement..........................................................11
Section 3.04. Indemnification...........................................................................11
Section 3.05. Merger or Consolidation, or Assumption of the Obligations, Contractor.....................12
Section 3.06. GMAC Commercial Holding Capital Corp. Not to Resign as Contractor.........................12
ARTICLE IV
DEFAULT
Section 4.01. Contractor Default........................................................................12
Section 4.02. Appointment of Successor Contractor.......................................................13
Section 4.03. Waiver of Past Defaults...................................................................14
ARTICLE V
MISCELLANEOUS
Section 5.01. Amendment; Waiver.........................................................................14
Section 5.02. Assignment................................................................................14
Section 5.03. Third-Party Beneficiaries.................................................................15
Section 5.04. Mutual Release............................................................................15
Section 5.05. Notices...................................................................................15
Section 5.06. Severability..............................................................................16
Section 5.07. Separate Counterparts.....................................................................16
Section 5.08. Headings..................................................................................16
Section 5.09. Governing Law.............................................................................16
Section 5.10. Non-Petition Covenants....................................................................16
Section 5.11. No Limitation of Liability Under Education Act and Regulations............................17
Section 5.12. Limitation of Liability of Delaware Trustee...............................................17
Section 5.13. Independent Contractor....................................................................17
Section 5.14. Approval of Servicing Agreement Modifies Contractor Duties................................17
EXHIBIT A Form of Consent by Trust to Servicing Agreement..........................................A-1
ii
SERVICING CONTRACTOR AGREEMENT
This
Servicing Contractor Agreement (the "Agreement") entered into and
effective as of the 1st day of March 2003, by and between GMAC Commercial
Holding Capital Corp., a
Colorado corporation, as Servicing Contractor (in its
capacity as such, the "Contractor"), and GMAC Education Loan Funding Trust-I, a
Delaware statutory trust, as Owner of the Financed Student Loans (the "Trust").
WHEREAS, Great Lakes Educational Loan Services, Inc. ("Great Lakes"), ACS
Education Services, Inc. ("ACS") and other servicers as approved by the Trust in
writing from time to time (collectively, the "Servicers") are in the business of
servicing education loans ("Education Loans") which are made and guaranteed in
accordance with the provisions of the Higher Education Act of 1965, as amended
(the "Education Act") (references hereinafter to the "Education Act" include
rules and regulations promulgated thereunder as in effect from time to time);
and
WHEREAS, the Servicers have developed and/or have available to them the
systems and services to enable them to process and service Education Loans in
accordance with the Education Act and the rules and regulations promulgated by
the guarantee agencies (collectively, the "Guarantor"); and
WHEREAS, the Trust, by and through its respective eligible lender trustees,
acquires and holds Education Loans from time to time (the "Financed Student
Loans"); and
WHEREAS, the Trust intends to engage the Contractor to perform certain
duties on behalf of the Trust with respect to each Servicer servicing Financed
Student Loans under various servicing agreements that will be entered into
between the Contractor and each Servicer (collectively, the "Servicing
Agreement").
WHEREAS, the Contractor intends to accept such duties.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which hereby are acknowledged, the parties hereto agree as
follows:
ARTICLE I.
DEFINITIONS
SECTION 1.01. DEFINED TERMS. Capitalized terms which are not otherwise
defined in this Agreement shall have the meanings ascribed thereto in the
Indenture of Trust (the "Indenture"), dated as of March 1, 2003, between Zions
First National Bank as indenture trustee and eligible lender trustee (the
"Indenture Trustee" and the "Eligible Lender Trustee," as applicable) and the
Trust. Subject to Section 5.14 hereof, the phrase "the Contractor shall require"
as used in this Agreement in connection with a Servicer's obligation with
respect to the Financed Student Loans, the Trust, the Indenture Trustee, or the
Noteholders means that the Contractor shall include in the applicable Servicing
Agreement a provision requiring the Servicer to perform the
specified obligation and use reasonable efforts to cause the Servicer to perform
such obligation through available legal remedies.
ARTICLE II
DUTIES
SECTION 2.01. DUTIES OF CONTRACTOR. Subject to the terms and conditions of
this Agreement, and for the benefit of the Trust, the Eligible Lender Trustee,
the Noteholders and the Indenture Trustee, the Trust hereby engages and
expressly authorizes the Contractor, and the Contractor agrees, to perform the
duties set forth in this Agreement, including, without limitation, to negotiate,
execute, and perform the Servicing Agreements with Servicers on behalf of the
Trust, to require the Servicers to service the Financed Student Loans in
accordance with this Agreement, the Indenture and the applicable Servicing
Agreements and take all action necessary or appropriate in connection therewith.
SECTION 2.02. GENERAL STANDARDS FOR SERVICING FINANCED STUDENT LOANS.
Subject to Section 5.14 hereof:
(a) In connection with the performance of its duties as set
forth in Section 2.01 hereof, the Contractor shall require each Servicer,
for the benefit of the Contractor, the Trust, the Eligible Lender Trustee,
the Noteholders and the Indenture Trustee to manage, service, administer
and make collections on the Financed Student Loans with reasonable care,
using that degree of skill and attention that the Servicer exercises with
respect to all comparable Education Loans that it services. The Contractor
shall also cause, without limiting the generality of the foregoing or of
any other provision set forth in the related Servicing Agreement and
notwithstanding any other provision to the contrary set forth therein, the
Servicer to manage, service, administer and make collections with respect
to the Financed Student Loans (other than collection of any Interest
Subsidy Payments and Special Allowance Payments, which are collected by the
Eligible Lender Trustee for the Financed Student Loans) in accordance with,
and otherwise comply with, all applicable federal and state laws, including
any applicable standards, guidelines and requirements of the Education Act
and the applicable Guarantee Agreements, the failure to comply with which
would adversely affect the eligibility of one or more of the Financed
Student Loans for federal reinsurance or Interest Subsidy Payments, Special
Allowance Payments or Guarantee Payments or would have a material adverse
effect on the Trust.
(b) Without limiting the generality of the foregoing, the
Contractor shall require each Servicer, with respect to Financed Student
Loans serviced by the Servicer, to:
(i) collect and post all collected payments;
(ii) provide accounting for all transactions related to
individual Financed Student Loans, including, without limitation,
accounting for all
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payments of principal and interest upon such Financed Student Loans
from the conversion date to the Servicer's system;
(iii) furnish statements with respect to the Financed
Student Loans to the Trust, the Contractor and other appropriate
Persons at appropriate times;
(iv) service the Financed Student Loans in such a manner
as to maintain the Guarantee thereon in full force at all times;
(v) provide data as required by applicable Guarantors;
(vi) respond to inquiries of Borrowers on such Financed
Student Loans;
(vii) monitor each Borrower's status;
(viii) prepare and mail directly to the Borrower all
required statements, notices, tax information, disclosures and
demands and otherwise make required disclosures to Borrowers;
(ix) investigate delinquencies;
(x) process all deferments and forbearances;
(xi) send payment coupons to Borrowers and otherwise
establish repayment terms;
(xii) when necessary and allowable by the Education Act,
take all steps necessary to file a claim for loss or reimbursement
with the applicable Guarantor;
(xiii) retain records of contacts, follow-ups, collection
efforts and correspondence regarding each Financed Student Loan;
(xiv) provide such other services as the Servicer
customarily provides and deems appropriate; and
(xv) follow its customary standards, policies and
procedures in performing its duties as Servicer subject to Section
2.04 hereof.
(c) The Contractor may authorize the Servicers to execute and
deliver, on behalf of the Contractor, the Trust, the Eligible Lender
Trustee and the Indenture Trustee, or any of them, instruments of
satisfaction or cancellation, or partial or full release or discharge, and
all other comparable instruments, with respect to such Financed Student
Loans; provided, however, that the Servicer will not (i) permit any
rescission or cancellation of a Financed Student Loan except as ordered by
a court of competent jurisdiction or governmental authority or as otherwise
consented to in writing by the Trust; or (ii) reschedule, revise, defer or
otherwise compromise with respect to payments
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due on any Financed Student Loan except pursuant to all applicable
standards, guidelines and requirements with respect to the servicing of the
Financed Student Loans; and provided, further, that the Servicer will not
agree to any decrease of the interest rate on, or the principal amount
payable with respect to, any Financed Student Loan without the prior
written consent of the Trust.
(d) The Contractor shall require each Servicer to promptly and
routinely furnish the Administrator, the Eligible Lender Trustee and the
Indenture Trustee with copies of all material reports, records, and other
documents and data as required by the Servicing Agreement or as may
otherwise be required by the Education Act. The Contractor shall require
each Servicer in performing its duties under the related Servicing
Agreement to be guided by and comply with the Education Act and applicable
requirements of the related Guarantor. The Contractor shall require each
Servicer to produce a clear and precise audit trail for each Financed
Student Loan and to comply with such other reporting, servicing, and
operating standards as are contained in the related Servicing Agreement.
SECTION 2.03. POWER OF ATTORNEY. The Trust hereby grants a revocable power
of attorney and all authorization to the Contractor that is necessary or
appropriate to the performance of its duties under this Agreement, including,
without limitation, all authorization to grant a revocable power of attorney to
each Servicer that is necessary or appropriate for the performance by each
Servicer of its duties under the related Servicing Agreement. The Contractor is
hereby authorized to grant and assign such power of attorney on behalf of the
Trust to each Servicer for the purpose of maintaining any and all collection
procedures with respect to the Financed Student Loans, including filing,
pursuing and recovering claims against the Guarantors for Guarantee Payments and
taking any steps to enforce such Financed Student Loans such as commencing a
legal proceeding to enforce a Financed Student Loan in the name of the Trust,
the Eligible Lender Trustee, the Indenture Trustee or the Noteholders. The Trust
shall upon the written request of the Contractor or a Servicer furnish, or cause
the Indenture Trustee to furnish, the Servicer with any other powers of attorney
and other documents reasonably necessary or appropriate to enable the Contractor
or the Servicer to carry out their respective duties under this Agreement or
under the related Servicing Agreement, as applicable.
SECTION 2.04. COLLECTION OF FINANCED STUDENT LOAN PAYMENTS. Subject to
Section 5.14 hereof:
(a) With respect to the Financed Student Loans serviced by a
Servicer, the Contractor shall require each Servicer to (i) make reasonable
efforts (including all efforts that may be specified under the Education
Act or any Guarantee Agreement) to collect all payments called for under
the terms and provisions of the Financed Student Loans as and when the same
shall become due and to follow such collection procedures as it follows
with respect to all comparable Education Loans that it services; and (ii)
allocate collections with respect to the Financed Student Loans between
principal and interest in accordance with the terms of each such Financed
Student Loan. Subject to the Indenture, the Contractor may authorize any
Servicer in its discretion to waive any late payment
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charge or any other fees that may be collected in the ordinary course of
servicing a Financed Student Loan.
(b) With respect to the Financed Student Loans serviced by a
Servicer, the Contractor shall require the Servicer to make reasonable
efforts to claim, pursue and collect all Guarantee Payments from the
Guarantors pursuant to the Guarantee Agreements as and when the same shall
become due and payable, to comply with the Education Act and all other
applicable laws and agreements with respect to claiming, pursuing and
collecting such payments and shall follow such practices and procedures as
it follows with respect to all comparable guarantee agreements and
Education Loans that it services. In connection therewith, the Contractor
shall authorize each Servicer on behalf of the Trust to convey to the
related Guarantor the promissory note and the related Financed Student Loan
file representing any Financed Student Loan in connection with submitting a
claim to the applicable Guarantor for a Guarantee Payment in accordance
with the terms of the applicable Guarantee Agreement.
SECTION 2.05. REALIZATION UPON STUDENT LOANS. Subject to Section 5.14
hereof, for the benefit of the Trust, the Indenture Trustee, the Eligible Lender
Trustee and the Noteholders, the Contractor shall require the Servicer to use
reasonable efforts consistent with its customary servicing practices and
procedures and including all efforts that may be specified under the Education
Act or the applicable Guarantee Agreement in its servicing of any delinquent
Financed Student Loans.
SECTION 2.06. NO IMPAIRMENT. Subject to Section 5.14 hereof, in performing
its duties under this Agreement, the Contractor shall take into account the
interests of the Trust, the Eligible Lender Trustee, the Indenture Trustee and
the Noteholders in the Financed Student Loans.
SECTION 2.07. SERVICER'S REPORT. Subject to Section 5.14 hereof:
(a) The Contractor shall require each Servicer to promptly
furnish to the Contractor (which information the Servicer shall forward to
the Administrator and the Trust) from time to time upon request, such
information, reports, and financial statements within its control related
to the Servicer or the servicing of the Financed Student Loans as the
Contractor or the Trust reasonably deems appropriate to be prepared and
file all necessary reports or certifications with the Securities and
Exchange Commission or as required by the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 or the
Indenture.
(b) Without limiting the generality of the foregoing, the
Contractor shall require each Servicer to provide certified reports to the
Contractor with respect to the Financed Student Loans serviced by the
Servicer of all monetary transactions as well as periodic summary and
account information or as otherwise required by the Contractor including,
without limitation, such items as:
(i) daily monetary transaction summary;
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(ii) daily lender advice report;
(iii) daily transaction journal;
(iv) daily transaction detail;
(v) total interest report;
(vi) total principal report;
(vii) delinquency detail;
(viii) claims delinquency detail;
(ix) Computation of interest and Special Allowance
Payments (currently reported on ED Form 799). The Contractor also
shall require the Servicer to report all pertinent information to
the Secretary on ED Form 799 (or such successor report as may be
applicable);
(x) ED Form 799 Supporting Reports: Total Principal
Report; Part II Origination/Lender Fees; Part III, IV Interest
Benefits and Special Allowance Report; Part III, IV Prior Quarter
Subsidized Interest and Special Allowance; Part V Changes in Loan
Principal; Part VI Loan Portfolio Analysis; and
(xi) a quarterly report of ▇▇▇▇▇▇▇▇ to the Secretary for
interest and special allowances.
SECTION 2.08. ANNUAL STATEMENT AS TO COMPLIANCE; NOTICE OF DEFAULT. Subject
to Section 5.14 hereof, without limiting the generality of Section 2.08 hereof,
the Contractor shall require the Servicer to deliver to the Contractor (which
information the Contractor shall forward to the Administrator, the Rating
Agencies, the Eligible Lender Trustee and the Indenture Trustee):
(a) on or before March 15 of each year beginning March 15, 2004,
a certificate of the Servicer, dated as of December 31 of the preceding
year, stating that (i) a review of the activities of the Servicer during
the preceding calendar year (or, in the case of the first such certificate,
during the period from the Closing Date to December 31, 2003) and of its
performance under the applicable Servicing has been made under the
supervision of the officer signing such certificate; and (ii) to the best
of such officers' knowledge, based on such review, the Servicer has
fulfilled all its obligations under the applicable Servicing Agreement
throughout such year (or in the case of the first such Officers'
Certificate, such shorter period) or, if there has been a default in the
fulfillment of any such obligation, specifying each such default known to
such officer and the nature and status thereof.
(b) without limiting the generality of Section 2.08(a) above,
the Contractor shall require each Servicer to cause a firm of independent
certified public accountants to
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deliver to the Contractor (which information the Contractor shall forward
to the Trust, the Rating Agencies, the Eligible Lender Trustee and the
Indenture Trustee) within 120 days of the end of the Servicer's regular
fiscal-year or calendar-year audit period, an audit report that encompasses
the Servicer's portion of the annual Lender Audit (as defined in the
Education Act), or any successor thereto, as required of a lender under the
Education Act, for the preceding year (or, in the case of the first such
report, the period from the Closing Date to the end of the Servicer's first
regular fiscal-year or calendar-year audit after the Closing Date). Such
report shall indicate that the firm is independent of the Servicer within
the meaning of the Code of Professional Ethics of the American Institute of
Certified Public Accountants.
SECTION 2.09. ACCESS TO CERTAIN DOCUMENTATION AND INFORMATION REGARDING
FINANCED STUDENT LOANS. Subject to Section 5.14 hereof, the Contractor shall
require the Servicer to provide the Trust, the Indenture Trustee, the Eligible
Lender Trustee and the Contractor access to the related Financed Student Loan
files during the normal business hours at the offices of the Servicer and upon
reasonable advance notice and at the expense of the Person requesting such
access. Nothing in this Section 2.09 shall be construed to require the
Contractor to affect the obligation of the Servicer to observe any applicable
law prohibiting disclosure of information regarding the Borrowers and the
failure of the Contractor to cause the Servicer to provide access to information
as a result of such obligation shall not constitute a breach of this Agreement.
SECTION 2.10. APPOINTMENT OF SUBCONTRACTORS. The Contractor may at any time
appoint one or more subcontractors to perform all or any portion of its
obligations as Contractor under this Agreement and provided, further, that the
Contractor shall remain obligated and be liable to the Trust, the Eligible
Lender Trustee, the Indenture Trustee and the Noteholders for the performance of
its duties in accordance with the provisions of this Agreement without
diminution of such obligation and liability by virtue of the appointment of such
subcontractors and to the same extent and under the same terms and conditions as
if the Contractor alone were performing such duties. The fees and expenses of
the subcontractors shall be as agreed between the Contractor and its respective
subcontractors from time to time and none of the Trust, the Eligible Lender
Trustee, the Indenture Trustee or the Noteholders shall have any responsibility
therefor.
SECTION 2.11. DEPOSITS INTO ACCOUNTS. Subject to Section 5.14 hereof:
(a) The Contractor shall require each Servicer to post to each
related Borrower's account all payments of principal, interest and other
charges with respect to the Borrower's Financed Student Loan. The
Contractor shall require each Servicer to remit to the Contractor or to
deposit directly into the Revenue Fund as and when required by the
Indenture all amounts received by the Servicer with respect to the Financed
Student loan, including, without limitation, amounts constituting:
(i) all identifiable payments, including, without
limitation, any Guarantee Payments with respect to the Financed
Student Loans;
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(ii) all liquidation proceeds on the Financed Student
Loans;
(iii) with respect to Financed Student Loans repurchased
from the Trust, all aggregate purchase amounts; and
(iv) all other amounts required to be deposited by the
Servicer pursuant to the terms of the related Servicing Agreement
or the Indenture.
ARTICLE III
THE CONTRACTOR
SECTION 3.01. REPRESENTATIONS OF CONTRACTOR. The Contractor makes the
following representations on which the Trust is deemed to have relied in
acquiring (through the Eligible Lender Trustee) the Financed Student Loans and
appointing the Contractor to perform its duties under this Agreement. The
representations are made as of the execution and delivery of this Agreement and
as of the Closing Date, and, with respect to each Qualified Substitute Student
Loan (as defined in the related Loan Sale Agreement), as of the relevant
substitution date, and shall survive the sale, transfer and assignment of the
Financed Student Loans to the Eligible Lender Trustee on behalf of the Trust and
the pledge thereof to the Indenture Trustee pursuant to the Indenture.
(a) ORGANIZATION AND GOOD STANDING. The Contractor is a
corporation duly organized and validly existing in good standing under the
laws of the State of
Colorado. It has all requisite power and authority to
execute, deliver and perform its obligations under this Agreement.
(b) POWER AND AUTHORITY OF CONTRACTOR. The Contractor has taken
all action necessary to authorize the execution and delivery by it of this
Agreement, and this Agreement will be executed and delivered by one of its
officers who is duly authorized to execute and deliver this Agreement on
its behalf.
(c) BINDING OBLIGATION. This Agreement constitutes a legal,
valid and binding obligation of the Contractor, 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 material breach of any of the
terms and provisions of, or constitute (with or without notice or lapse of
time or both) a material default under, the charter or by-laws of the
Contractor, or any indenture, agreement or other instrument to which the
Contractor is a party or by which it shall be bound; or result in the
creation or imposition of any lien upon any of its material properties
pursuant to the terms of any such indenture, agreement or other instrument;
or violate any law or, to the knowledge of the Contractor, any order, rule
or regulation applicable to the Contractor of any court or of any federal
or state
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regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Contractor or its properties.
(e) NO PROCEEDINGS. There are no proceedings or investigations
pending against the Contractor or, to its best knowledge, threatened
against the Contractor, before any court, regulatory body, administrative
agency or other governmental instrumentality having jurisdiction over the
Contractor or its properties: (i) asserting the invalidity of this
Agreement or any of the other Basic Documents to which the Contractor is a
party; (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 Basic Documents; (iii) seeking any determination or ruling
that could reasonably be expected to have a material and adverse effect on
the performance by the Contractor of its obligations under, or the validity
or enforceability of, this Agreement, any of the other Basic Documents or
the Notes; or (iv) seeking to affect adversely the federal or state income
tax attributes of the Trust or the Notes.
(f) ALL CONSENTS. To the Contractor's knowledge, all
authorizations, consents, licenses, 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 Contractor in connection with the execution and delivery by the
Contractor of this Agreement and the performance by the Contractor of its
duties under by this Agreement have in each case been duly obtained,
effected or given and are in full force and effect.
SECTION 3.02. LIMIT ON LIABILITY OF CONTRACTOR.
(a) Notwithstanding anything to the contrary in this Agreement,
the Contractor shall be liable in accordance herewith only to the extent of
the obligations specifically undertaken by the Contractor under this
Agreement. Notwithstanding the foregoing, if the Contractor is unable, in
whole or in part, to satisfy its obligations under this Agreement due in
whole or in part to a force, event or circumstance outside the control of
the Contractor (including, without limitation, acts of God, acts of war,
fires, earthquakes and other disasters, or the revocation or withholding
of, or failure of the Trust, the Eligible Lender Trustee or the Indenture
Trustee to grant, the necessary authority or powers to so satisfy its
obligations), the Contractor shall not be deemed to have breached any such
obligation, for so long as the Contractor remains unable to perform such
obligation due to such cause.
(b) The liability of the Contractor under this Section 3.02
shall survive the resignation or removal of the Eligible Lender Trustee or
the Indenture Trustee or the termination of this Agreement. If the
Contractor shall have made any payments pursuant to this Section and the
Person to or on behalf of whom such payments are made thereafter collects
any amounts attributable to the cause for such payments from others, such
Person shall promptly repay such amounts to the Contractor, without
interest.
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(c) Neither the Contractor nor any of the directors, officers,
employees or agents of the Contractor shall be under any liability to the
Trust, the Eligible Lender Trustee, the Indenture Trustee, or the
Noteholders, except as expressly provided in 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 this provision
shall not protect the Contractor 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 Contractor
and any director, officer, employee or agent of the Contractor may rely in
good faith on any document of any kind prima facie properly executed and
submitted by any Person respecting any matters arising under this
Agreement.
(d) Except as provided in this Agreement, the Contractor shall
not be under any obligation to appear in, prosecute or defend any legal
action that shall not be incidental to its duties under this Agreement and
that in its opinion may involve it in any expense or liability; provided,
however, that the Contractor may undertake any reasonable action that it
may deem necessary or desirable in respect of this Agreement and the other
Basic Documents and the rights and duties of the parties to this Agreement
and the other Basic Documents and the interests of the Trust and the
Noteholders.
(e) Notwithstanding anything to the contrary in this Agreement,
the Contractor assumes no responsibility or liability for failure of the
Trust or the Indenture Trustee to exercise reasonable care or due diligence
and the results thereof, in acquiring or servicing a Financed Student Loan
prior to placing of the Financed Student Loan on the system of a Servicer
under a Servicing Agreement and prior to the date the Trust or the
Indenture Trusts holds an interest in the Financed Student Loan. The
Contractor also assumes no liability for the failure of any Borrower to
repay a Financed Student Loan, nor the failure of the United States
government to pay any principal, interest, subsidy or special allowance,
nor for the failure of Guarantor to make payment of any principal and/or
interest on any of the Financed Student Loan. The Contractor shall not be
responsible for consequences of unreasonable acts of any Guarantor.
(f) It is hereby acknowledged that the Contractor shall not be
performing any of the servicing activities described in this Agreement, and
that the Servicers shall be responsible for performance of all such
servicing duties. Notwithstanding anything to the contrary in this
Agreement, the Contractor shall have no liability of any nature whatsoever
arising out of or in connection with this Agreement for any negligent or
wrongful act or omission on the part of the Servicers; provided, however,
that the Contractor hereby assigns, transfers and sets over unto the Trust
or the Indenture Trustee for the benefit of the Noteholders, as applicable,
all of the Contractor's rights and remedies against the applicable
Servicers as they pertain to such negligent or wrongful act or omission.
(g) The Contractor shall answer or use reasonable efforts to
cause the applicable Servicers to answer all inquiries received by it
pertaining to Financed Student
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Loans, school status or refunds. Such inquiries may be referred to the
school which the Borrower attended or is attending, if necessary.
Notwithstanding anything to the contrary in this Agreement, the Contractor
shall not have any responsibility for any disputes between Borrowers and
schools regarding tuition, registration, attendance, or quality of
education/training.
(h) For purposes of this Section, in the event of the
termination of the rights and obligations of GMAC Commercial Holding
Capital Corp. as Contractor pursuant to Section 4.01 hereof, or a
resignation by such Contractor pursuant to this Agreement, such Contractor
shall be deemed to be the Contractor pending appointment of a successor
Contractor pursuant to Section 4.02 hereof.
SECTION 3.03. CONTRACTOR FEE AND REIMBURSEMENT.
(a) Notwithstanding the application of Section 5.14 hereof to
one or more Servicing Agreements, the Contractor shall be paid a Servicing
Contractor Fee for each calendar month (the "Contractor Fee") equal to
one-twelfth of [_____]% (or such larger percentage approved by the Rating
Agencies, not to exceed [_____]%) of the aggregate principal amount of the
Financed Student Loans outstanding as of the last day of the preceding
calendar month. The Contractor Fee shall be paid to the Contractor from the
Operating Fund as provided in Section 5.05 of the Indenture. The Contractor
Fee described herein is the fee described in the Indenture as the
"Servicing Fee".
(b) The Trust shall promptly reimburse the Contractor for all
fees and amounts due to a Servicer pursuant to the related Servicing
Agreement and paid by the Contractor. Subject to the foregoing, the
Contractor shall be required to pay all expenses incurred by it in
connection with the performance of its obligations under this Agreement,
including fees and disbursements of independent accountants, taxes imposed
on the Contractor, including, without limitation, expenses incurred in
connection with reports to the Trust or the Indenture Trustee, as the case
may be.
SECTION 3.04. INDEMNIFICATION. The Trust shall indemnify and hold the
Contractor harmless from and against all claims, liabilities, losses, damages,
costs and expenses (including reasonable attorney's fees) asserted against or
incurred by the Contractor as a result of the Contractor complying with any
instruction or directive by the Trust, the Eligible Lender Trustee or the
Indenture Trustee. The Trust shall further indemnify and hold the Contractor
harmless from and against all claims, liabilities, losses, damages, costs and
expenses (including reasonable attorney's fees) asserted against or incurred by
the Contractor as a result of actions not the fault of or not caused by a
negligent act of the Contractor, or its agents or employees, including, without
limitation, all claims, liabilities, losses, damages and costs caused by or the
fault of the Trust, the Eligible Lender Trustee, the Indenture Trustee, a prior
holder or owner, a prior servicer or any other party connected in any manner to
the Financed Student Loans resulting in the claim, liability, loss, damage or
cost. All obligations of the Trust shall be subject to the provisions, including
the priority of payments, set forth in the Indenture.
11
SECTION 3.05. MERGER OR CONSOLIDATION, OR ASSUMPTION OF THE OBLIGATIONS,
CONTRACTOR. The Contractor hereby agrees that, upon (a) any merger or
consolidation of the Contractor into another Person; (b) any merger or
consolidation to which the Contractor shall be a party resulting in the creation
of another Person; or (c) any Person succeeding to the properties and assets of
the Contractor substantially as a whole, the Contractor shall cause such Person
(if other than the Contractor) to execute an agreement of assumption to perform
every obligation of the Contractor under this Agreement. Upon compliance with
the foregoing requirement, such Person shall be the successor to the Contractor
under this Agreement without further act on the part of any of the parties to
this Agreement. Notwithstanding anything herein to the contrary, compliance with
the foregoing shall not be a condition to the consummation of any of the
transactions referred to in clause (a), (b) or (c) above.
SECTION 3.06. GMAC COMMERCIAL HOLDING CAPITAL CORP. NOT TO RESIGN AS
CONTRACTOR. Subject to the provisions of Section 3.05, GMAC Commercial Holding
Capital Corp. shall not resign from the obligations and duties hereby imposed on
it as Contractor under this Agreement except upon determination that the
performance of its duties under this Agreement shall no longer be permissible
under applicable law. Notice of any such determination permitting the
resignation of GMAC Commercial Holding Capital Corp. shall be communicated to
the Trust, the Administrator, the Eligible Lender Trustee, the Indenture Trustee
and the Rating Agencies at the earliest practicable time (and, if such
communication is not in writing, shall be confirmed in writing at the earliest
practicable time). No such resignation shall become effective until the Trust or
a successor Contractor shall have assumed the responsibilities and obligations
of GMAC Commercial Holding Capital Corp. in accordance with Section 4.02.
ARTICLE IV
DEFAULT
SECTION 4.01. CONTRACTOR DEFAULT. If any one of the following events (each,
a "Contractor Default") shall occur and be continuing:
(a) any failure by the Contractor duly to observe or to perform
in any material respect any covenants or agreements of the Contractor set
forth in this Agreement, which failure shall (i) materially and adversely
affect the rights of the Trust, the Eligible Lender Trustee, the Indenture
Trustee or Noteholders; and (ii) continue unremedied for a period of 30
days after the date of discovery of such failure by an officer of the
Contractor or on which written notice of such failure, requiring the same
to be remedied, shall have been given (A) to the Contractor by the Trust,
the Indenture Trustee, the Eligible Lender Trustee or (B) to the Contractor
by Noteholders representing not less than 25% of the Highest Priority
Obligations; or
(b) the commencement by the Contractor 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,
the making by the Contractor of a general assignment for the benefit of
creditors, the declaration by the Contractor of moratorium
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with respect to one's debts or failure to generally pay one's debts as they
become due, or the commencement of an involuntary case or other proceeding
against the Contractor 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, provided such action is not dismissed within 90 days;
then, and in each and every case, so long as the Contractor Default shall not
have been remedied, either the Trust, the Indenture Trustee or the Noteholders
evidencing not less than 75% of the Highest Priority Obligations by notice then
given in writing to the Contractor (and to the Trust, Indenture Trustee and the
Eligible Lender Trustee if given by the Noteholders) may terminate all the
rights and obligations (other than the obligations set forth in Section 3.02) of
the Contractor under this Agreement. On or after the receipt by the Contractor
of such written notice, all authority and power of the Contractor under this
Agreement, whether with respect to the Notes, the Financed Student Loans or
otherwise, shall, without further action, pass to and be vested in the Trust or
such successor Contractor as may be appointed under Section 4.02; and, without
limitation, the Trust, the Indenture Trustee and the Eligible Lender Trustee are
hereby authorized to execute and deliver, for the benefit of the predecessor
Contractor, 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, whether to
complete the transfer and endorsement of the Financed Student Loans and related
documents, or otherwise. The predecessor Contractor shall cooperate with the
successor Contractor, the Trust, the Indenture Trustee and the Eligible Lender
Trustee in effecting the termination of the responsibilities and rights of the
predecessor Contractor under this Agreement, transfer to the successor
Contractor, for administration by it of all cash amounts, if any, that shall at
the time be held by the predecessor Contractor for deposit, or thereafter
received by it with respect to a Financed Student Loan.
SECTION 4.02. APPOINTMENT OF SUCCESSOR CONTRACTOR.
(a) Upon receipt by the Contractor of notice of termination
pursuant to Section 4.01, or the resignation by the Contractor in
accordance with the terms of this Agreement, the predecessor Contractor
shall continue to perform its functions as Contractor 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 later of (i) the date 120 days from the delivery to the Trust,
the Eligible Lender Trustee and the Indenture Trustee of written notice of
such resignation (or written confirmation of such notice) in accordance
with the terms of this Agreement; and (ii) the date upon which the
predecessor Contractor shall become unable to act as Contractor as
specified in the notice of resignation. In the event of the termination
under this Agreement of the Contractor, the Trust shall appoint a successor
Contractor reasonably acceptable to the Eligible Lender Trustee and the
Indenture Trustee, and the successor Contractor shall accept its
appointment by a written assumption in form acceptable to the Trust, the
Eligible Lender Trustee and Indenture Trustee. In the event that a
successor Contractor has not been appointed at the time when the
predecessor Contractor has ceased to act as Contractor in accordance with
this Section 4.02, the Trust without further action shall automatically be
13
appointed the successor Contractor. Notwithstanding the above, the Trust
shall, if it shall be unwilling or legally unable to so act, appoint or
petition a court of competent jurisdiction to appoint, any established
institution the regular business of which shall include the oversight of
servicing for, or servicing of, student loans, as the successor to the
Contractor under this Agreement; provided, however, that such right to
appoint or to petition for the appointment of any such successor Contractor
shall in no event relieve the Trust, the Eligible Lender Trustee or the
Indenture Trustee from any obligations otherwise imposed on them under the
Basic Documents until such successor has in fact assumed such appointment.
(b) Upon appointment, the successor Contractor (including the
Trust acting as successor Contractor) shall be the successor in all
respects to the predecessor Contractor and shall be subject to all the
responsibilities, duties and liabilities placed on the predecessor
Contractor that arise thereafter or are related thereto and shall be
entitled to an amount agreed to by such successor Contractor (which shall
not exceed the Contractor Fee, unless a Rating Confirmation has been
received for such other compensation arrangements) and all the rights
granted to the predecessor Contractor by the terms and provisions of this
Agreement.
(c) Notwithstanding anything to the contrary herein or in the
other Basic Documents, the Trust, to the extent it is acting as successor
Contractor pursuant hereto, shall be entitled to resign to the extent a
qualified successor Contractor has been appointed and has assumed all the
obligations of the Contractor in accordance with the terms of this
Agreement and the other Basic Documents.
SECTION 4.03. WAIVER OF PAST DEFAULTS. Subject to Section 5.14, the Trust,
with the consent of the Indenture Trustee or Noteholders evidencing not less
than a majority of the Highest Priority Obligations, may waive in writing any
default by the Contractor in the performance of its obligations under this
Agreement, and any consequences thereof to the extent provided in such waiver.
Upon any such waiver of a past default, such default shall cease to exist, and
any Contractor Default arising therefrom shall be deemed to have been remedied
for every purpose of this Agreement. No such waiver shall extend to any
subsequent or other default or impair any right consequent thereto.
ARTICLE V.
MISCELLANEOUS
SECTION 5.01. AMENDMENT; WAIVER. This Agreement may be amended by the
parties hereto, with the prior written consent of the Indenture Trustee, the
Eligible Lender Trustee and the Administrator which shall not be unreasonably
withheld. The waiver or failure of a party to exercise in any respect any right
provided for in this Agreement shall not be deemed a waiver of any further right
under this Agreement.
SECTION 5.02. ASSIGNMENT. Notwithstanding anything to the contrary
contained herein, except as provided in the succeeding sentence, as provided in
Section 3.05 and as provided in the
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provisions of this Agreement concerning the resignation of the Contractor, this
Agreement shall not be assigned to any party hereto without the prior written
consent of the other parties, which consent shall not be unreasonably withheld;
provided, however, that (a) this Agreement may be assigned by the Contractor to
any affiliate of the Contractor without the consent of any party; and (b) the
Trust or the Indenture Trustee may assign this Agreement subject to the terms of
Section 5.03 hereof, and (c) the Contractor may delegate the duties required to
be performed under this Agreement as permitted in Section 2.12 hereof.
SECTION 5.03. THIRD-PARTY BENEFICIARIES.
(a) The provisions of this Agreement are solely for the benefit
of the Contractor and the Trust, and for the benefit of the Eligible Lender
Trustee, the Administrator, the Indenture Trustee, and the Noteholders, as
third-party beneficiaries. Nothing in this Agreement, whether express or
implied, shall be construed to give to any other Person any legal or
equitable right, remedy or claim in the Trust Estate or under or in respect
of this Agreement or any covenants, conditions or provisions contained
herein. The Eligible Lender Trustee, the Administrator, the Indenture
Trustee and any Noteholders are express third-party beneficiaries and may
enforce the provisions of this Agreement as if they were parties hereto;
provided, however, that in the case of any Counterparties, such right to
enforcement and the right to provide consents or waivers pursuant to the
provisions hereof or to take the other actions as provided herein are
conditioned upon its not being in default under any Derivative Product.
(b) The foregoing clause (a) creates a permissive right on
behalf of the Eligible Lender Trustee, the Administrator, the Indenture
Trustee and the Noteholders, and none of any of them shall be under any
duty or obligation under this Agreement, except to the extent provided in
Section 5.03(c) hereof.
(c) If there is an event of default under the Indenture, the
Indenture Trustee forecloses on its security interest on the Financed
Student Loans, and the Indenture Trustee seeks to become a party to this
Agreement under this Section 5.03, then the Indenture Trustee shall assume
all duties and obligations of the Trust under this Agreement.
SECTION 5.04. MUTUAL RELEASE. Each of the parties to this Agreement
releases the other parties from any and all claims, or causes of the other
arising from any event or transaction occurring prior to the execution of this
Agreement. This release is an independent covenant between the parties, and will
survive any termination of this Agreement.
SECTION 5.05. NOTICES. All notices, requests, demands or other instruments
which may or are required to be given by a party to one or more of the other
parties shall be in writing, and each shall be deemed to have been properly
given when served personally on an officer of the party to whom such notice is
given or upon expiration of a period of 48 hours from and after the postmark
thereof when mailed, postage prepaid, by registered or certified mail,
requesting return receipt, by overnight courier, or by telecopy, addressed as
follows:
15
If to Contractor:
GMAC Commercial Holding Capital Corp.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. Page
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Trust, to the Administrator at:
GMAC Commercial Holding Capital Corp.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. Page
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Any party may change the address and name of the addressee to which
subsequent notices are to be sent to it by notice to the others given as
aforesaid, but any such notice of change, if sent by mail, shall not be
effective until the fifth day after it is mailed.
SECTION 5.06. SEVERABILITY. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
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 5.07. SEPARATE COUNTERPARTS. This 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 5.08. HEADINGS. The headings of the various Articles, Sections and
subsections herein are for convenience of reference only and shall not define or
limit any of the terms or provisions hereof.
SECTION 5.09. GOVERNING LAW. This Agreement is executed and delivered
within the State of
Colorado, and the parties hereto agree that it shall be
construed, interpreted and applied in accordance with the laws of that State,
and that the courts and authorities within the State of
Colorado shall have sole
jurisdiction and venue over all controversies which may arise with respect to
the execution, interpretation and compliance with this Agreement.
SECTION 5.10. NON-PETITION COVENANTS. Notwithstanding any prior termination
of this Agreement, the Contractor shall not, prior to the date which is one year
and one day after the termination of this Agreement with respect to the Trust,
acquiesce, petition or otherwise invoke or cause the Trust to invoke the process
of any court or government authority for the purpose of
16
commencing or sustaining a case against the Trust under any federal or state
bankruptcy, insolvency or similar law or appointing a receiver, liquidator,
assignee, trustee, custodian, sequestrator or other similar official of the
Trust or any substantial part of its property, or ordering the winding up or
liquidation of the affairs of the Trust.
SECTION 5.11. NO LIMITATION OF LIABILITY UNDER EDUCATION ACT AND
REGULATIONS. Notwithstanding any other provision in this Agreement or the other
Basic Documents, nothing in this Agreement or the other Basic Documents shall be
construed to limit the legal responsibility of the any Servicer, Trust, the
Eligible Lender Trustee or the Indenture Trustee to the Secretary or a Guarantor
for any violations of statutory or regulatory requirements that may occur with
respect to Education Loans held by the Trust, the Eligible Lender Trustee or the
Indenture Trustee pursuant to, or to otherwise comply with their obligations
under, the Education Act or the Regulations.
SECTION 5.12. LIMITATION OF LIABILITY OF DELAWARE TRUSTEE. Notwithstanding
anything contained herein to the contrary, this Agreement has been executed by
or on behalf of Wilmington Trust Company, not in its individual capacity, but
solely in its capacity as Delaware Trustee of the Trust, and in no event shall
Wilmington Trust Company in its individual capacity or any beneficial owner of
the Trust have any liability for the covenants, agreements or other obligations
of the Trust under this Agreement, as to all of which recourse shall be had
solely to the assets of the Trust.
SECTION 5.13. INDEPENDENT CONTRACTOR. The parties hereto intend that the
relationship between the Contractor and the other parties hereto be that of an
independent contractor and not a partnership, joint venture, or a fiduciary.
SECTION 5.14. APPROVAL OF SERVICING AGREEMENT MODIFIES CONTRACTOR DUTIES.
To the extent that a Servicing Agreement contains provisions that are
inconsistent with requirements of this Agreement, or does not contain provisions
that the Contractor would otherwise be required to include in the Servicing
Agreement pursuant to this Agreement, neither the Contractor's failure to
perform its obligations under this Agreement, the performance by the Contractor
of its obligations under such Servicing Agreement, nor the failure to include
such provisions in the Servicing Agreement, shall result in a breach of this
Agreement by the Contractor if such Servicing Agreement is approved in writing
by the Trust substantially in the form of Exhibit A hereto.
[Signature Page Follows]
17
IN WITNESS WHEREOF, the parties hereto have executed this
Servicing
Contractor Agreement as of the date first written above.
GMAC Commercial Holding Capital Corp., a
Colorado corporation, as Contractor
By
--------------------------------------------
Name
------------------------------------------
Title
-----------------------------------------
GMAC Education Loan Funding Trust-I, a
Delaware statutory trust
By Wilmington Trust Company, not in its
individual capacity, but solely as Delaware
Trustee
By
--------------------------------------------
Name
------------------------------------------
Title
-----------------------------------------
18
EXHIBIT A
FORM OF CONSENT BY TRUST TO SERVICING AGREEMENT
Pursuant to the term and provisions of the
Servicing Contractor Agreement
(the "Agreement") entered into and effective as of the 1st day of March 2003, by
and between GMAC Commercial Holding Capital Corp., a
Colorado corporation, as
Servicing Contractor (in its capacity as such, the "Contractor"), and GMAC
Education Loan Funding Trust-I, a Delaware statutory trust, as Owner of the
Financed Student Loans (the "Trust"), the Contractor proposes to enter into a
Servicing Agreement with ________________ to service certain Financed Student
Loans, a copy of which is attached hereto (the "Servicing Agreement").
By signing below, the Trust hereby accepts and acknowledges the Servicing
Agreement in all respects and agrees that, to the extent that the Servicing
Agreement contains provisions that are inconsistent with requirements of the
Agreement, or does not contain provisions that the Contractor would otherwise be
required to include in the Servicing Agreement pursuant to this Agreement,
neither the Contractor's failure to perform its obligations under the Agreement,
the performance by the Contractor of its obligations under the Servicing
Agreement, nor the failure to include such provisions in the Servicing
Agreement, shall result in a breach of the Agreement by the Contractor, and the
Trust expressly waives any and all failures of the Contractor to perform its
obligations under the Agreement to such extent.
Capitalized terms which are not otherwise defined in this Consent shall
have the meanings ascribed thereto in the Agreement.
GMAC Education Loan Funding Trust-I,
a Delaware statutory trust
By: GMAC Commercial Holding Capital Corp.,
as Administrator
By
----------------------------------------
Name
--------------------------------------
Title
-------------------------------------
A-1
