EXHIBIT 99.7
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AUCTION AGENT AGREEMENT
among
ZIONS FIRST NATIONAL BANK
as Trustee
and
GMAC EDUCATION LOAN FUNDING TRUST-I
as Issuer
and
[NAME OF AUCTION AGENT]
as Auction Agent
Dated as of _________, 200_
Relating to
$[__________________]
GMAC Education Loan Funding Trust-I
Student Loan Asset-Backed Notes
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TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS AND RULES OF CONSTRUCTION
Section 1.01. Terms Defined by Reference to Supplemental Indenture...............................................1
Section 1.02. Terms Defined Herein...............................................................................1
Section 1.03. Rules of Construction..............................................................................2
ARTICLE II
THE AUCTION
Section 2.01. Purpose: Incorporation by Reference of Auction Procedures and Settlement Procedures................3
Section 2.02. Preparation for Each Auction: Maintenance of Registry of Existing Owners...........................3
Section 2.03. All Hold and Maximum Rates.........................................................................5
Section 2.04. Auction Schedule...................................................................................5
Section 2.05. Changes in Auction Periods or Auction Date.........................................................6
Section 2.06. Notices to Existing Owners.........................................................................7
Section 2.07. Payment Defaults...................................................................................7
Section 2.08. Broker-Dealers.....................................................................................7
Section 2.09. Access to and Maintenance of Auction Records.......................................................7
Section 2.10. Membership in the Depository.......................................................................8
ARTICLE III
THE AUCTION AGENT
Section 3.01. Duties and Responsibilities........................................................................8
Section 3.02. Rights of the Auction Agent........................................................................9
Section 3.03. Auction Agent's Disclaimer........................................................................10
Section 3.04. Compensation; Remedies and Indemnification Relating to the Auction Agent..........................10
Section 3.05. Compensation of the Broker-Dealers................................................................10
ARTICLE IV
MISCELLANEOUS
Section 4.01. Term of Agreement.................................................................................11
Section 4.02. Communications....................................................................................11
Section 4.03. Entire Agreement..................................................................................13
Section 4.04. Benefits..........................................................................................13
Section 4.05. Amendment; Waiver.................................................................................13
Section 4.06. Successor and Assigns.............................................................................13
Section 4.07. Severability......................................................................................13
Section 4.08. Execution in Counterparts.........................................................................13
Section 4.09. Governing Law.....................................................................................13
Section 4.10. Limited Liability of Wilmington Trust Company.....................................................13
ARTICLE V
HOLIDAYS
HOLIDAYS.........................................................................................................14
EXHIBIT A FORM OF BROKER-DEALER AGREEMENT
EXHIBIT B LIST OF INITIAL BROKER-DEALERS
SCHEDULE I DETERMINATION AND COMPUTATION OF CARRY-OVER AMOUNTS
THIS
AUCTION AGENT AGREEMENT dated as of ________, 200_ (the "Agreement")
is among Zions First National Bank, as trustee (the "Trustee"), pursuant to the
[NAME OF SUPPLEMENTAL INDENTURE], dated as of _________, 200_, (the
"Supplemental Indenture") which is supplemental to the Indenture of Trust, dated
as of March 1, 2003, between GMAC Education Loan Funding Trust-I (the "Issuer")
and the Trustee, as trustee; [NAME OF AUCTION AGENT], as auction agent (together
with its successors and assigns, the "Auction Agent"); and the Issuer.
The Issuer proposes to issue its Student Loan Asset-Backed Auction Rate
Notes, (collectively, the "Notes") as follows:
Class Principal Amount
----- ----------------
Class ______ Notes $[____________]
Class ______ Notes $[____________]
Class ______ Notes $[____________]
The Class _____ Notes mature on ________, 20__. All other classes of Notes
mature on ________, 20__. The Trustee is entering into this Agreement pursuant
to [Section 8] of the Supplemental Indenture.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained herein, the adequacy and sufficiency of which are hereby acknowledged,
the Trustee, the Auction Agent and the Issuer agree as follows:
ARTICLE I
DEFINITIONS AND RULES OF CONSTRUCTION
Section 1.01 TERMS DEFINED BY REFERENCE TO SUPPLEMENTAL INDENTURE.
Capitalized terms not defined herein shall have the respective meanings
specified in the Supplemental Indenture.
Section 1.02 TERMS DEFINED HEREIN. As used herein and in the Settlement
Procedures (as defined below), the following terms shall have the following
meanings, unless the context otherwise requires:
"AUCTION" shall have the meaning specified in Section 2.01 hereof.
"AUCTION AGENT FEE RATE" shall mean the rate per annum at which the fee to
be paid to the Auction Agent for the services rendered by it hereunder and under
the Broker-Dealer Agreement accrues pursuant to Section 3.04(a) hereof.
"AUCTION PROCEDURES" shall mean the Auction Procedures that are set forth
in [Appendix A] of the Supplemental Indenture.
"AUTHORIZED OFFICER" shall mean each Vice President, Assistant Vice
President and Associate of the Auction Agent assigned to its Corporate Trust and
Agency Services and every other officer or employee of the Auction Agent
designated as an "Authorized Officer" for purposes hereof in a communication to
the Trustee.
"AUTHORIZED TRUSTEE REPRESENTATIVE" shall mean each Senior Vice President,
Vice President, Assistant Vice President, Senior Trust Officer, Trust Officer
and Assistant Manager of the Trustee and every other officer or employee of the
Trustee designated as an "Authorized Trustee Representative" for purposes hereof
in a communication to the Auction Agent.
"BROKER-DEALER AGREEMENT" shall mean each agreement between the Auction
Agent and a Broker-Dealer substantially in the form attached hereto as Exhibit
A.
"BROKER-DEALER FEE RATE" shall mean the rate per annum at which the fees to
be paid to the Broker-Dealers for the services rendered by them under the
Broker-Dealer Agreements in connection with the Auctions accrue pursuant to
Section 3.05(b) hereof.
"EXISTING OWNER" shall mean an Existing Holder as defined in the
Supplemental Indenture.
"EXISTING OWNER REGISTRY" shall mean the register maintained by the Auction
Agent pursuant to Section 2.02(a)(i) hereof.
"OWNER" shall be a registered owner of any Notes, which is a Holder as
defined in the Indenture.
"PARTICIPANT" of any person shall mean the member of, or participant in,
the Depository that will act on behalf of an Existing Owner or Potential Owner.
"REDEMPTION DATE" means the date on which any of the Notes are redeemed.
"SETTLEMENT PROCEDURES" shall mean the Settlement Procedures attached to
the Broker-Dealer Agreement as Exhibit A thereto.
Section 1.03 RULES OF CONSTRUCTION. Unless the context or use indicates
another or different meaning or intent, the following rules shall apply to the
construction of this Agreement:
(a) words IMPORTING the singular number shall include the plural number
and vice versa;
(b) the captions and headings herein are solely for convenience of
reference and shall not constitute a part of this Agreement nor shall they
affect its meaning, construction or effect;
(c) the words "hereof," "herein," "hereto," and other words of similar
import refer to this Agreement as a whole; and
(d) all references herein to a particular time of day shall be to
New
York City time.
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ARTICLE II
THE AUCTION
Section 2.01 PURPOSE: INCORPORATION BY REFERENCE OF AUCTION PROCEDURES AND
SETTLEMENT PROCEDURES.
(a) The Supplemental Indenture provides that the interest rate on the
Notes for each Interest Period after the Initial Interest Period, except as
provided in [Section 3] thereof, shall equal the Auction Rate that an Auction
Agent appointed by the Trustee advises that results from implementation of the
Auction Procedures. The Trustee, in furtherance of its role as registrar and
paying agent for the Notes, and with the consent of the Issuer, has duly
appointed [NAME OF AUCTION AGENT] as Auction Agent for purposes of the Auction
Procedures and to perform such other obligations and duties as are herein set
forth. The Auction Agent hereby accepts such appointment and agrees that, on
each Auction Date, it shall follow the procedures set forth in this Section and
the Auction Procedures for the purpose of, among other things, determining the
Applicable Interest Rate for each series of the Notes for each Interest Period
(other than the Initial Interest Period). Each periodic operation of such
procedures is hereinafter referred to as an "Auction."
(b) Without prejudice to Section 3.01(a) hereof, all of the provisions
contained in the Auction Procedures and the Settlement Procedures are
incorporated herein by reference in their entirety and shall be deemed to be a
part hereof to the same extent as if such provisions were fully set forth
herein.
Section 2.02 PREPARATION FOR EACH AUCTION: MAINTENANCE OF REGISTRY OF
EXISTING OWNERS.
(a) (i) Not later than seven days prior to each Auction Date in
which a Broker-Dealer will participate, the Trustee shall provide the Auction
Agent with a manually signed Broker-Dealer Agreement executed by each such
Broker-Dealer, if not previously so provided. The Auction Agent shall maintain a
current registry of persons that are Broker-Dealers, compiled as described
below, that are owners of Notes as indicated in the records of the Auction Agent
(such registry being herein called the "Existing Owner Registry"). Such persons
shall constitute the Existing Owners for purposes of each Auction. The
Broker-Dealer shall provide or cause to be provided to the Auction Agent on the
Date of Issuance a list of the initial Existing Owners of Notes, the aggregate
principal amount of Notes held by each initial Existing Owner and the respective
Broker-Dealer through which such Existing Owner purchased the Notes. The Auction
Agent may rely upon, as evidence of the identities of the Existing Owners, (A)
such list, (B) the results of each Auction, and (C) notices from any Existing
Owner, the Participant of any Existing Owner or the Broker-Dealer of any
Existing Owner as described in the first sentence of Section 2.02(a)(iii)
hereof.
(ii) The Trustee shall notify the Auction Agent in writing when
any notice of redemption is sent to the Depository as Owner of Notes not
later than 11:00 a.m. on the date such notice is sent. In the event the
Auction Agent receives from the Trustee written notice of any partial
redemption of any Notes, the Auction Agent shall, at least three
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Business Days prior to the Redemption Date, with respect to such Notes,
request the Depository to notify the Auction Agent of the identities of the
Participants (and the respective principal amounts) from the accounts of
which Notes have been called for redemption and the person or department at
such Participant to contact regarding such redemption and, at least one
Business Day prior to the Redemption Date, with respect to Notes being
partially redeemed, the Auction Agent shall request each Participant so
identified to disclose to the Auction Agent (upon selection by such
Participant of the Existing Owners whose Notes are to be redeemed) the
aggregate principal amount of such Notes of each such Existing Owner, if
any, to be redeemed by the Issuer and the respective Broker-Dealer through
which said Existing Owner purchased such Note; provided the Auction Agent
has been furnished with the name and telephone number of a person or
department at such Participant from which it is to request such
information. In the absence of receiving any such information with respect
to an Existing Owner, from such Existing Owner's Participant or otherwise,
the Auction Agent may continue to treat such Existing Owner as the owner of
the aggregate principal amount of Notes shown in the Existing Owner
Registry. By the close of business on the day the Auction Agent receives
any notice pursuant to this paragraph (ii), the Auction Agent shall forward
the contents of such notice to the related Broker-Dealer by telephone,
confirmed in writing.
(iii) The Auction Agent shall register in the Existing Owner
Registry a transfer of Notes from an Existing Owner to another person only
if (A) such transfer is pursuant to an Auction or (B) such transfer is made
other than pursuant to an Auction, the Auction Agent has been notified in
writing in a notice substantially in the form of Exhibit C to the
Broker-Dealer Agreement by the Existing Owner that is the transferor, the
Participant of such Existing Owner or the Broker-Dealer of such Existing
Owner, of such transfer. The Auction Agent shall rescind a transfer made on
the Existing Owner Registry if the Auction Agent has been notified in
writing in a notice substantially in the form of Exhibit D to the
Broker-Dealer Agreement by the Broker-Dealer of any person that (i)
purchased any Notes and the seller failed to deliver such Notes or (ii)
sold any Notes and the purchaser failed to make payment to such person upon
delivery to the purchaser of such Notes. The Auction Agent is not required
to accept any notice of transfer or rescission delivered prior to an
Auction unless it is received by the Auction Agent by 3:00 p.m. on the
Business Day next preceding the applicable Auction Date.
(b) The Auction Agent may request that the Broker-Dealers, as set forth
in the Broker-Dealer Agreements, provide the Auction Agent with a list of their
respective customers that such Broker-Dealers believe are beneficial owners of
Notes and the aggregate principal amount of Notes beneficially owned by each
such customer. The Auction Agent shall keep confidential any such information
and shall not disclose any such information so provided to any person other than
the relevant Broker-Dealer, the Issuer and the Trustee, provided that the
Auction Agent reserves the right to disclose any such information if it is
advised by its counsel that its failure to do so would be unlawful or if the
failure to do so would expose the Auction Agent to loss, liability, claim or
damage for which it shall not previously have been adequately indemnified.
(c) In the event that any day that is scheduled to be an Auction Date
shall be changed after the Auction Agent shall have given the notice referred to
in clause (vi) of paragraph (a) of
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the Settlement Procedures, the Auction Agent, by such means as the Auction Agent
deems practicable, shall give notice of such change to the Broker-Dealers not
later than 9:15 a.m. on the earlier of the new Auction Date or the old Auction
Date.
Section 2.03 ALL HOLD AND MAXIMUM RATES.
(a) The Auction Agent shall determine the Maximum Rate as set forth in
Section 2.03(b)(i) hereof. The Issuer shall determine the Net Loan Rate if then
required to do so under the Indenture, and shall promptly give the Auction Agent
and the Trustee notice thereof.
(b) (i) On each Auction Date, the Auction Agent shall determine the
All Hold Rate, the Maximum Rate, the One-Month LIBOR and the Applicable LIBOR
Rate and the components thereof. Not later than 9:00 a.m. on each Auction Date,
the Auction Agent shall obtain One-Month LIBOR and the Applicable LIBOR Rate.
Not later than 10:30 a.m. on each Auction Date, the Auction Agent shall notify
the Trustee and the Broker-Dealers of the All Hold Rate, the Maximum Rate,
One-Month LIBOR and the Applicable LIBOR Rate so determined.
(ii) If the ownership of the Notes is no longer maintained in
book-entry form by the Depository, no further Auctions will be held and the
interest rate on the Notes for each subsequent Interest Period will equal
the Maximum Rate as determined by the Trustee on the Business Day
immediately preceding the first day of such Interest Period as provided in
the Supplemental Indenture.
(c) Upon receipt of notice from the applicable Broker-Dealer of a
change in the length of one or more Interest Periods described in the
Supplemental Indenture, and provided that no certificate was received from the
applicable Broker-Dealer pursuant to the Supplemental Indenture, then the
interest rate on the Notes for the next Interest Period shall be determined
pursuant to the Auction Procedures. If a certificate from the applicable
Broker-Dealer is received by the Auction Agent pursuant to the Supplemental
Indenture but Sufficient Bids do not exist on the Auction Date for such first
Interest Period then the interest rate on the Notes for the next Interest Period
shall be the Maximum Rate as provided in the Supplemental Indenture.
Section 2.04 AUCTION SCHEDULE. The Auction Agent shall conduct Auctions in
accordance with the schedule set forth below. Such schedule may be changed by
the Auction Agent with the consent of the Trustee, which consent shall not be
unreasonably withheld or delayed. The Auction Agent shall give notice of any
such change to each Broker-Dealer. Such notice shall be given prior to the close
of business on the Business Day next preceding the first Auction Date on which
any such change shall be effective.
Time Event
---- -----
By 9:00 a.m. Auction Agent obtains One-Month
LIBOR and the Applicable
LIBOR Rate.
By 10:30 a.m. Auction Agent advises the Trustee
and the Broker-Dealers of the
applicable Maximum Rate, the
applicable All Hold
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Rate, One-Month LIBOR and the
Applicable LIBOR Rate, as set
forth in Section 2.03(b)(i)
hereof.
9:30 a.m. - 1:00 p.m. Auction Agent assembles
information communicated to it by
Broker-Dealers as provided in
[Section 4(b)(i)] of the
Supplemental Indenture. Submission
Deadline is 1:00 p.m.
Not earlier than 1:00 p.m. Auction Agent makes determinations
pursuant to [Section 4(c)(i)] of
the Supplemental Indenture.
Submitted Bids and Submitted Sell
Orders are accepted and rejected
in whole or in part and principal
amounts of Notes are allocated as
provided in [Sections 4(d) and
4(e)] of the Supplemental
Indenture.
By approximately 3:00 p.m. Auction Agent advises Trustee of
the Auction Rate for the next
Interest Period and the results of
Auction as provided in [Section
4(c)(ii)] of the Supplemental
Indenture. Auction Agent gives
notice of Auction results as set
forth in Section 2.04(a) of the
Broker-Dealer Agreement.
Section 2.05 Changes in Auction Periods or Auction Date.
(a) Changes in Auction Period or Periods.
(i) The Auction Agent shall deliver any notice delivered to it
pursuant to Section [_____] of the Auction Procedures to the Existing
Owners within two Business Days of its receipt thereof.
(ii) The Auction Agent shall deliver any certificate delivered to
it pursuant to Section [_____] of the Auction Procedures to the
Broker-Dealers not later than 3:00 p.m. on the Business Day before the next
Auction Date by telecopy or similar means.
(iii) If, after delivery, to the Auction Agent of the notice
referred to in Section [_____] of the Auction Procedures the Auction Agent
fails to receive the certificate referred to in Section [_____] of the
Auction Procedures by 11:00 a.m. on the Business Day before the next
Auction Date, the Auction Agent shall deliver a notice of such failure to
the Broker-Dealers not later than 3:00 p.m. on such Business Day by
telecopy or other similar means.
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(iv) If, after delivery to the Auction Agent of the notice
referred to in Section [_____] of the Auction Procedures and the
certificate referred to in Section [_____] of the Auction Procedures,
Sufficient Bids are not received by the Auction Agent by the submission
deadline, the Auction Agent shall deliver notice of such delivery to the
Broker-Dealers not later than 3:00 p.m. on such Auction Date by telephone
confirmed in writing the next Business Day.
(b) Changes in Auction Date. The Auction Agent shall deliver any notice
delivered to it pursuant to Section [_____] of the Auction Procedures to the
Broker-Dealers within three Business Days of its receipt thereof.
Section 2.06 NOTICES TO EXISTING OWNERS. The Auction Agent shall be
entitled to rely upon the address of each Existing Owner as such address is
delivered by such Existing Owner in connection with any notice to Existing
Owners required to be given by the Auction Agent.
Section 2.07 PAYMENT DEFAULTS.
(a) The Auction Agent shall deliver a copy of any notice received by it
from the Trustee to the effect that a Payment Default has occurred to the
Broker-Dealers on the Business Day of the receipt thereof or as soon as
practicable thereafter by telecopy or other similar means.
(b) The Auction Agent shall deliver a copy of any notice received by it
from the Trustee to the effect that a Payment Default has been cured to the
Broker-Dealers on the Business Day of its receipt thereof or as soon as
practicable thereafter by telecopy or other similar means.
(c) If a Payment Default shall have occurred, the Trustee shall
calculate the Non-Payment Rate on the first day of (i) each Interest Period
commencing after the occurrence and during the continuance of such Payment
Default and (ii) any Interest Period commencing less than two Business Days
after the cure of any Payment Default.
Section 2.08 BROKER-DEALERS.
(a) If the Auction Agent is provided with a copy of a Broker-Dealer
Agreement, which has been manually signed, with any person listed on Exhibit B
hereto, it shall enter into such Broker-Dealer Agreement with such person.
(b) The Auction Agent may, at the written direction of the Issuer,
enter into a Broker-Dealer Agreement with any other person who requests to be
selected to act as a Broker-Dealer. Any such Broker-Dealer shall have a capital
surplus of at least $50,000,000. The Auction Agent shall have entered into a
Broker-Dealer Agreement with each Broker-Dealer prior to the participation of
any such Broker-Dealer in any Auction.
(c) The Auction Agent shall terminate any Broker-Dealer Agreement as
set forth therein if so directed by the Trustee at the direction of the Issuer.
Section 2.09 ACCESS TO AND MAINTENANCE OF AUCTION RECORDS. The Auction
Agent shall afford to the Trustee or the Issuer, its agents, independent public
accountants and counsel,
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access at reasonable times during normal business hours to review and make
extracts or copies (at the Issuer's sole cost and expense) of all books,
records, documents and other information concerning the conduct and results of
Auctions, provided that any such agent, accountant, or counsel shall furnish the
Auction Agent with a letter from the Trustee or the Issuer requesting that the
Auction Agent afford such person access. The Auction Agent shall maintain
records relating to any Auction for a period of two years after such Auction
(unless requested by the Issuer in writing to maintain such records for such
longer period not in excess of four years, then for such longer period), and
such records shall, in reasonable detail, accurately and fairly reflect the
actions taken by the Auction Agent hereunder. The Trustee agrees to keep any
information regarding the customers of any Broker-Dealer received from the
Auction Agent in connection with this Agreement or any Auction confidential and
shall not disclose such information or permit the disclosure of such information
without the prior written consent of the applicable Broker-Dealer to anyone
except such agent, accountant or counsel engaged to audit or review the results
of Auctions as permitted by this Section 2.09. Any such agent, accountant or
counsel, before having access to such information, shall agree to keep such
information confidential and not to disclose such information or permit
disclosure of such information without the prior written consent of the
applicable Broker-Dealer, except as may otherwise be required by law.
Section 2.10 MEMBERSHIP IN THE DEPOSITORY. As of the date hereof, the
Auction Agent is a member of, or participant in, the Depository. The Auction
Agent will provide the Trustee with notice at least 90 days prior to the date,
if any, on which it shall resign as a member of, or participant in, the
Depository.
ARTICLE III
THE AUCTION AGENT
Section 3.01 DUTIES AND RESPONSIBILITIES.
(a) The Auction Agent is acting solely as agent for the Trustee and the
Issuer hereunder and owes no fiduciary or other duties to any other person by
reason of this Agreement and no implied duties, fiduciary or otherwise, shall be
read into this Agreement.
(b) The Auction Agent undertakes to perform such duties and only such
duties as are specifically set forth in this Agreement or incorporated herein by
reference from the Supplemental Indenture, and no implied covenants or
obligations shall be read into this Agreement or the Supplemental Indenture
against the Auction Agent by reason of anything set forth in the Offering
Memorandum or any other offering material employed in connection with the
offering and sale of the Notes, or otherwise. In the event of a conflict between
any provisions of this Agreement and the Supplemental Indenture, the provisions
contained in this Agreement shall govern.
(c) In the absence of bad faith or negligence on its part, the Auction
Agent shall not be liable for any action taken, suffered or omitted or for any
error of judgment made by it in the performance of its duties under this
Agreement. The Auction Agent shall not be liable for any error of judgment made
in good faith unless the Auction Agent shall have been negligent in ascertaining
(or failing to ascertain) the pertinent facts. In no event shall the Auction
Agent be
8
liable for special, indirect or consequential loss or damages of any kind
whatsoever (including, but not limited to, loss of profits), even if the Auction
Agent has been advised of the likelihood of such loss or damages and regardless
of the form of action, except in the event of bad faith or negligence on the
part of the Auction Agent.
(d) The Auction Agent represents and warrants that, assuming this
Agreement is a legal, valid and binding agreement among the other parties
hereto, this Agreement is a legal, valid and binding agreement of the Auction
Agent enforceable in accordance with its terms, except as such enforceability
may be limited by laws relating to bankruptcy, insolvency, moratorium or similar
laws affecting creditors' rights generally and subject to general principles of
equity (regardless of whether such enforceability is considered in a proceeding
in equity or at law). The Auction Agent shall not be required to and shall make
no representations and have no responsibilities as to the validity, accuracy,
value or genuineness of any signatures or endorsements, other than its own.
(e) Whenever in the administration of the provisions of this Agreement
the Auction Agent shall deem it necessary or desirable that a matter be proved
or established prior to taking or suffering any action to be taken hereunder,
such matter (unless other evidence in respect thereof be herein specifically
prescribed) may, in the absence of negligence or bad faith on the part of the
Auction Agent, be deemed to be conclusively proved and established by a
certificate signed by the Issuer or the Broker-Dealer and delivered to the
Auction Agent and such certificate, in the absence of negligence or bad faith on
the part of the Auction Agent, shall be full warrant to the Auction Agent for
any action taken, suffered or omitted by it under the provisions of this
Agreement upon the good faith thereof.
(f) The Auction Agent shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, entitlement order,
approval or other paper or document.
(g) Any corporation into which the Auction Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Auction Agent shall be
a party, or any corporation succeeding to the business of the Auction Agent
shall be the successor of the Auction Agent hereunder without the execution or
filing of any paper with any party hereto or any further act on the part of any
of the parties hereto, except where any instrument of transfer or assignment is
required by law to effect such succession, anything herein to the contrary
notwithstanding.
Section 3.02 RIGHTS OF THE AUCTION AGENT.
(a) The Auction Agent may conclusively rely and shall be protected in
acting or refraining from acting upon any communication authorized hereby and
upon any written instruction, notice, request, direction, consent, report,
certificate, bond certificate or other instrument, paper or document reasonably
believed by it to be genuine. The Auction Agent shall not be liable for acting
upon any telephone communication authorized hereby which the Auction Agent
believes in good faith to have been given by the Trustee, a Broker-Dealer, the
Issuer or the Depository. The Auction Agent may record telephone communications
with the Trustee or with the Broker-Dealers or both.
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(b) The Auction Agent may consult with counsel of its choice, and the
advice of such counsel shall be full and complete authorization and protection
in respect of any action taken, suffered or omitted by it hereunder in good
faith and in reliance thereon.
(c) The Auction Agent shall not be required to advance, expend or risk
its own funds or otherwise incur or become exposed to financial liability in the
performance of its duties hereunder.
(d) The Auction Agent may perform its duties and exercise its rights
hereunder either directly or by or through agents or attorneys and shall not be
responsible for any willful misconduct or negligence on the part of any agent or
attorney appointed by it with due care hereunder.
Section 3.03 AUCTION AGENT'S DISCLAIMER. The Auction Agent makes no
representation as to the validity, adequacy or accuracy of this Agreement, the
Broker-Dealer Agreement or the Notes or any offering document used in connection
with the offer and sale of the Notes or otherwise.
Section 3.04 COMPENSATION; REMEDIES AND INDEMNIFICATION RELATING TO THE
AUCTION AGENT.
(a) On each Interest Payment Date, for the term of this Agreement, the
Auction Agent shall be paid for services rendered hereunder and under the
Broker-Dealer Agreements a service charge for the succeeding Interest Period in
an amount equal to the product of (i) a fraction, the numerator of which is the
number of days in the Auction Period commencing during such Interest Period (or,
in the case of the initial period, the actual number of days elapsed since the
date of delivery of the Notes) and the denominator of which is 360, times (ii)
the Auction Agent Fee Rate times (iii) the aggregate principal amount of
Outstanding Notes at the close of business on the Interest Payment Date (the
"Auction Agent Fee"). The Issuer shall pay to the Auction Agent the Auction
Agent Fee as described in the previous sentence in same day funds. The Auction
Agent Fee shall be payable solely out of amounts in the Administration Fund
pursuant to [Section 5(b)] of the Supplemental Indenture in accordance with this
Section 3.04(a). The Auction Agent Fee Rate shall be determined as set forth on
Schedule I hereto.
(b) The Issuer shall indemnify and hold harmless the Auction Agent, but
solely to the extent payable from the Trust Estate pursuant to the Indenture,
for and against any loss, liability or expense incurred without negligence or
bad faith on the Auction Agent's part, arising out of or in connection with its
agency under this Agreement and the Broker-Dealer Agreements, including the
reasonable costs and expenses (including the reasonable fees and expenses of its
counsel) of defending itself against any such claim or liability in connection
with its exercise or performance of any of its duties hereunder and thereunder
and of enforcing this indemnification provision; provided that the Trustee shall
not indemnify the Auction Agent pursuant to this Section 3.04(b) for any fees
and expenses incurred by the Auction Agent in the normal course of performing
its duties hereunder and under the Broker-Dealer Agreements.
Section 3.05 COMPENSATION OF THE BROKER-DEALERS.
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(a) The Broker-Dealers shall be entitled to receive a fee for all
services rendered by them under the Broker-Dealer Agreements, as provided in the
Broker-Dealer Agreements (the "Broker-Dealer Fee"). The Auction Agent shall pay
the Broker-Dealer Fee payable to each Broker-Dealer as provided in Section 2.05
of the Broker-Dealer Agreements.
ARTICLE IV
MISCELLANEOUS
Section 4.01 TERM OF AGREEMENT.
(a) This Agreement shall terminate on the earlier of (i) the date on
which the Notes are no longer outstanding under the Supplemental Indenture and
(ii) the date on which this Agreement is terminated in accordance with this
Section 4.01. The Auction Agent may terminate this Agreement upon written notice
to the Trustee and the Issuer on the date specified in such notice, which date
shall be no earlier than 90 days after the date of delivery of such notice.
Notwithstanding the foregoing, the provisions of this Agreement (except as
provided in Section 4.01(b) below) shall terminate upon the delivery of
certificates representing the Notes pursuant to [Section 17] of the Supplemental
Indenture. Notwithstanding the foregoing, the Auction Agent may terminate this
Agreement upon 25 days' prior written notice to the Issuer and the Trustee if it
has not received payment of any Auction Agent Fee due in accordance with Section
3.04(a) hereof for more than 30 days. The Auction Agent may be removed at any
time by the Trustee if the Auction Agent is an entity other than the Trustee,
acting at the written direction of (i) an Authorized Officer of the Issuer or
(ii) the Owners of 66-2/3% of the aggregate principal amount of the Series
2003-1 Senior Notes of all series then outstanding (or if there are no Series
2003-1 Senior Notes Outstanding, the Owners of 66-2/3% of the aggregate
principal amount of the Series 2003-1 Subordinate Notes), and if by such Owners,
by an instrument signed by such Holders or their counsel and filed with the
Auction Agent, the Issuer and the Trustee upon at least 90 days' notice. Neither
resignation nor removal of the Auction Agent shall be effective unless and until
a successor Auction Agent has been appointed and has accepted such appointment.
If the Auction Agent and the Trustee are the same entity, the Auction Agent may
be removed as described above, with the Issuer acting in lieu of the Trustee.
(b) Except as otherwise provided in this Section 4.01(b), the
respective rights and duties of the Trustee and the Auction Agent under this
Agreement shall cease upon termination of this Agreement. The covenants and
obligations of the Trustee to the Auction Agent under Section 3.04 hereof and to
the Broker-Dealers under Section 3.05 hereof and the rights of the Auction Agent
under Section 3.02 and 3.04 hereof, shall survive the termination of this
Agreement. Upon termination of this Agreement, the Broker-Dealer Agreements
shall automatically terminate and the Auction Agent shall (i) promptly deliver
to the Issuer copies of all books and records maintained by it in connection
with its duties hereunder, and (ii) at the written request of the Issuer
promptly transfer to the Trustee or any successor Auction Agent any funds
deposited by the Issuer with the Auction Agent pursuant to this Agreement which
have not previously been distributed by the Auction Agent in accordance with
this Agreement.
Section 4.02 COMMUNICATIONS. Except for (a) communications authorized to be
made by telephone pursuant to this Agreement or the Auction Procedures and (b)
communications in
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connection with Auctions (other than those expressly required to be in writing),
all notices, requests and other communications to any party hereunder shall be
in writing (including facsimile or similar writing) and shall be given to such
party addressed to it at its address, or facsimile number set forth below:
If to the Auction Agent: [NAME AND CONTACT INFORMATION FOR
AUCTION AGENT]
Attention: _______________
Telephone: ______________
Telecopy: _______________
If to the Trustee: Zions First National Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Department
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Broker-Dealer: [NAME AND CONTACT INFORMATION FOR
BROKER-DEALER]
Attention: ________________
Telephone: ________________
Telecopy: _________________
If to the Issuer: GMAC Education Loan Funding Trust-I
c/o Wilmington Trust Company
▇▇▇▇▇▇ Square North
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: GMAC Education Loan Funding
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. Page
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
or such other address or facsimile number as such party may hereafter specify
for such purpose by notice to the other party. Each such notice, request or
communication shall be effective when delivered at the address specified herein.
Communications shall be given on behalf of the Trustee by an Authorized Trustee
Representative and on behalf of the Auction Agent by an Authorized Officer.
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Section 4.03 ENTIRE AGREEMENT. This Agreement contains the entire agreement
between the parties relating to the subject matter hereof, and there are no
other representations, endorsements, promises, agreements or understandings,
oral, written or inferred between the parties relating to the subject matter
hereof.
Section 4.04 BENEFITS. Except for provisions hereunder which expressly
recognize rights in other persons, nothing herein, express or implied, shall
give to any person, other than the Trustee, the Auction Agent, the Issuer and
their respective successors and assigns, any benefit of any legal or equitable
right, remedy or claim hereunder.
Section 4.05 AMENDMENT; WAIVER.
(a) This Agreement shall not be deemed or construed to be modified,
amended, rescinded, canceled or waived, in whole or in part, except by a written
instrument signed by a duly authorized representative of the party to be
charged; provided, however, that the prior written consent of an affected third
party shall be obtained if the modification, amendment, rescission, cancellation
or waiver would affect provisions expressly related to the affected third party.
(b) Failure of either party hereto to exercise any right or remedy
hereunder in the event of a breach hereof by the other party shall not
constitute a waiver of any such right or remedy with respect to any subsequent
breach.
Section 4.06 SUCCESSOR AND ASSIGNS. This Agreement shall be binding upon,
inure to the benefit of, and be enforceable by, the respective successors and
permitted assigns of each of the Trustee, the Issuer and the Auction Agent. This
Agreement may not be assigned by either party hereto absent the prior written
consent of the other party, which consent shall not be unreasonably withheld or
delayed.
Section 4.07 SEVERABILITY. If any clause, provision or section hereof shall
be ruled invalid or unenforceable by any court of competent jurisdiction, the
invalidity or unenforceability of such clause, provision or section shall not
affect any of the remaining clauses, provisions or sections hereof.
Section 4.08 EXECUTION IN COUNTERPARTS. This Agreement may be executed in
several counterparts, each of which shall be an original and all of which shall
constitute but one and the same instrument.
Section 4.09 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of
New York applicable to
agreements made to be performed in said state.
Section 4.10 LIMITED LIABILITY OF WILMINGTON TRUST COMPANY. Wilmington
Trust Company acts solely as the Delaware Trustee hereunder and not in its
individual capacity. All persons having any claim against the Issuer or the
Delaware Trustee by reason of this Agreement shall look only to the Trust Estate
(as defined in the Indenture) for payment or satisfaction thereof.
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ARTICLE V
HOLIDAYS
The Trustee shall maintain with the Auction Agent a current list of its
bank holidays.
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IN WITNESS WHEREOF, the parties hereto have caused this
AUCTION AGENT
AGREEMENT to be duly executed and delivered by their proper and duly authorized
officers as of the date first above written.
ZIONS FIRST NATIONAL BANK,
as Trustee
By:
--------------------------------------
Its: Vice President and Trust Officer
[NAME OF AUCTION AGENT],
as Auction Agent
By:
--------------------------------------
Its:
GMAC EDUCATION LOAN FUNDING
TRUST-I, as Issuer
By: GMAC Commercial Holding Capital
Corp., as Issuer Administrator
By:
--------------------------------------
Its:
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EXHIBIT A TO
AUCTION AGENT AGREEMENT
FORM OF
BROKER-DEALER AGREEMENT
16
EXHIBIT B TO
AUCTION AGENT AGREEMENT
LIST OF INITIAL BROKER-DEALERS
[NAME OF BROKER-DEALERS]
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SCHEDULE I
AUCTION AGENT FEE
[TO BE PROVIDED SEPARATELY]
