EXHIBIT 4.5
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FORM OF
ELIGIBLE LENDER TRUST AGREEMENT
between
SLC STUDENT LOAN TRUST 200_-_
as Grantor
and
-------------------------
as Eligible Lender Trustee
Dated as of ____, 200__
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ELIGIBLE LENDER TRUST AGREEMENT
THIS ELIGIBLE LENDER TRUST AGREEMENT is made on _____, 200_, by and
between SLC STUDENT LOAN TRUST 200_-_ (the "Grantor") and -------
_______________, as eligible lender trustee (the "Eligible Lender Trustee").
W I T N E S S E T H :
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WHEREAS, the Grantor is not an eligible lender under the Higher Education
Act of 1965, as amended, or related regulations promulgated by the U.S.
Secretary of Education (collectively, the "Act") and, as such, cannot hold loans
made and reinsured under Title IV of the Act as an eligible lender;
WHEREAS, it is the intention of the parties that certain loans ("Trust
Student Loans") reinsured under Title IV of the Act and meeting the
qualifications described in Section 2 hereof made to persons for post-secondary
education at eligible institutions be acquired from time to time by the Eligible
Lender Trustee on behalf of the Grantor (hereinafter collectively referred to as
the "Portfolio");
WHEREAS, the Eligible Lender Trustee is an eligible lender under and as
defined in the Act;
WHEREAS, the Eligible Lender Trustee has agreed to hold legal title to the
Trust Student Loans for the benefit of the Grantor;
WHEREAS, the Eligible Lender Trustee and certain Guarantors have entered
or will enter into Guarantee Agreements with respect to the Trust Student Loans;
and
WHEREAS, the Grantor intends to provide the Eligible Lender Trustee with
written instruction on all aspects of the management of the Trust Student Loans;
NOW, THEREFORE, for and in consideration of the promises and of the mutual
covenants contained herein, and for other valuable consideration, the receipt of
which is hereby acknowledged, the Grantor covenants and agrees with the Eligible
Lender Trustee as follows:
Section 1. Definitions.
Capitalized terms used herein and not otherwise defined in this Section 1
shall have the meanings specified in the Indenture.
"Administration Agreement" shall mean the Administration Agreement, dated
______, 200__, by and among The Student Loan Corporation, as servicer and
administrator, and the Grantor.
"Guarantee Agreement" shall mean any agreement between any Guarantor and
the Eligible Lender Trustee providing for the payment by the Guarantor of
amounts authorized to be paid pursuant to the Higher Education Act to holders of
qualifying Trust Student Loans guaranteed in accordance with the Higher
Education Act by such Guarantor.
"Guarantor" shall mean any entity listed on Attachment B (as amended from
time to time) to the Sale Agreement or the Purchase Agreement, as applicable.
"Indenture" shall mean the Indenture, dated as of ______, 200__, by and
among the Grantor, the Indenture Trustee and the Indenture Administrator.
"Indenture Administrator" shall mean ______________, as indenture
administrator under the Indenture.
"Indenture Trustee" shall mean ______________, as indenture trustee under
the Indenture.
"Interest Subsidy Payments" shall mean payments, designated as such,
consisting of interest subsidies by the Secretary of Education in respect of the
Trust Student Loans to the Eligible Lender Trustee or the Owner Trustee on
behalf of the Grantor in accordance with the Higher Education Act.
"Owner Trustee" shall mean ___________, a __________, not in its
individual capacity but solely as owner trustee under the Trust Agreement.
"Person" shall mean an individual, a corporation, a partnership, a limited
liability company, a trust, an unincorporated organization or a government, or
any agency or political subdivision thereof.
"Purchase Agreement" shall mean the Master Terms Purchase Agreement, dated
as of _____________, 200__, among The Student Loan Corporation, the Eligible
Lender Trustee and the Depositor, and the purchase agreement or agreements
entered into thereunder.
"Sale Agreement" shall mean the Master Terms Sale Agreement, dated as of
_____, 200_, among the Eligible Lender Trustee on behalf of the Trust, the
Grantor, the Eligible Lender Trustee on behalf of the Depositor and the
Depositor, and the sale agreement or agreements entered into thereunder.
"Secretary of Education" shall mean the Secretary of Education, the United
States Department of Education, or any other officer, board, body, commission or
agency succeeding to the functions thereof under the Act.
"Servicing Agreement" shall mean the Servicing Agreement, dated ______,
200__, by and among The Student Loan Corporation, as servicer and administrator,
and the Grantor.
"Special Allowance Payments" shall mean payments, designated as such,
consisting of effective interest subsidies by the Department in respect of the
Trust Student Loans
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to the Eligible Lender Trustee or the Owner Trustee on behalf of the Grantor in
accordance with the Higher Education Act.
"Trust Agreement" shall mean the Short-Form Trust Agreement, dated as of
____, 200_, between the Depositor and the Owner Trustee, as amended and restated
pursuant to an Amended and Restated Trust Agreement, dated as of ____, 200_,
among the Depositor and the Owner Trustee.
Section 2. Creation of the Trust Estate.
(a) The Grantor hereby assigns, transfers and sets over to the Eligible
Lender Trustee, in trust for the benefit of the Grantor, all of the Grantor's
right, title and interest in and to the Trust Student Loans that at any time may
comprise the Portfolio, the receipt of which right, title, and interest is
hereby acknowledged by the Eligible Lender Trustee and which trust is hereby
accepted by the Eligible Lender Trustee, upon the following express terms and
conditions and with the powers and limitations hereinafter conferred and set
forth.
(b) The Portfolio and any other properties held in trust hereunder are
collectively referred to herein as the "Trust Estate."
Section 3. Servicing Agreements.
Servicing of loans included in the Portfolio shall be carried out by an
eligible third-party servicer of federally guaranteed Trust Student Loans
pursuant to the Servicing Agreement executed with such entity. At the time of
creation of the Trust Estate, each loan to be included in the Trust Estate shall
be a loan serviced by The Student Loan Corporation and sub-serviced by Citibank
USA, National Association or by another servicer or sub-servicer mutually agreed
to in writing by the parties hereto.
Section 4. Eligible Lender Trustee's Execution of Agreements Pertaining to
Loans Solely in Capacity as Eligible Lender Trustee.
The Grantor shall cause all agreements for the origination, purchase,
servicing, financing or sale of Trust Student Loans in the Trust Estate to which
the Eligible Lender Trustee is a party to indicate clearly that the Eligible
Lender Trustee is executing each such agreement solely in its capacity as
Eligible Lender Trustee.
This provision is not intended to apply, however, to Guarantee Agreements
executed by the Eligible Lender Trustee pursuant to Section 7 hereof, or to
limit the Eligible Lender Trustee's legal responsibility to the Secretary of
Education under 34 CFR ss. 682.203(b).
Section 5. Dispositive Provisions.
The Eligible Lender Trustee shall pay to the Indenture Trustee, promptly
upon receipt thereof, any and all income and payments (other than payments made
by the Grantor) received by the Eligible Lender Trustee in connection with the
Trust Estate, including without limitation the following payments to be received
with respect to Trust Student Loans: scheduled payments of principal, interest,
late fees and penalties by borrowers, prepayments of principal
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and interest by borrowers; all grants, subsidies, donations, Interest Subsidy
Payments, and Special Allowance Payments, and all default and other claim
payments made by any Guarantor.
Section 6. Reserved Rights of Invasion.
The Grantor expressly reserves and retains the right, at any time and from
time to time, by a notice in writing signed by an authorized officer of the
Grantor and filed with the Eligible Lender Trustee, to withdraw from the corpus
of the Trust Estate any or all of the Trust Estate, so long as such withdrawal
will not adversely affect any of the benefits that the Trust Student Loans are
entitled to under the Act.
Subject to the terms of the Indenture, the Administration Agreement and
the Servicing Agreement, it is an express provision and term of this trust that
any of the powers which the Grantor reserves to itself are to be exercised only
by the Grantor in its sole discretion, and not as a power to be subject to
exercise by any other Person, or under any process of law for the Grantor's
benefit, or for the benefit of the Grantor's creditors by any other Person or
court whatsoever.
Section 7. Eligible Lender Trustee's Duties and Powers.
The Eligible Lender Trustee and any successor to the Eligible Lender
Trustee or Eligible Lender Trustees shall have only the following powers and
duties:
(a) Upon receipt of written instructions from the Grantor, the Eligible
Lender Trustee shall execute and deliver all written instruments and take any
and all other actions that the Grantor may direct in order to (i) maintain all
Guarantee Agreements covering the Portfolio, (ii) enter into and take other
actions with respect to further agreements as required by the Grantor for the
benefit of the Trust Estate, and (iii) enforce the rights of the Eligible Lender
Trustee under all such Guarantee Agreements and other agreements.
(b) Upon receipt of written instructions from the Grantor, the Eligible
Lender Trustee shall execute and deliver all written instruments and take any
and all other actions as may be, in the judgment of the Grantor, required from
time to time in connection with the application for and receipt of grants,
subsidies, donations, Interest Subsidy Payments, Special Allowance Payments, and
default and other claim payments with respect to the Trust Estate.
(c) The Eligible Lender Trustee shall meet the qualifications set forth in
Section 14 hereof at all times during which it holds legal title to the Trust
Student Loans comprising the Portfolio.
(d) Upon receipt of written instructions from the Grantor, the Eligible
Lender Trustee shall sell, exchange or liquidate all or any portion of the Trust
Estate.
(e) The Eligible Lender Trustee shall dispose of any proceeds of such
sale, exchange or liquidation as the Grantor shall, by written instructions to
the Eligible Lender Trustee, direct.
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(f) The Eligible Lender Trustee shall report to the Grantor all claims for
taxes, insurance premiums and other legal assessments, debts, charges or claims
of any type made against any money or other assets belonging to the Trust, or
which may be due and owing in connection with the Trust Estate. When directed in
writing by the Grantor, the Eligible Lender Trustee shall satisfy approved
claims out of any money belonging to the Trust Estate, but the Grantor expressly
reserves the right to satisfy Trust debts with non-Trust assets.
(g) Subject to the indemnification rights set forth in Section 10 hereof,
with the Grantor's express written approval and indemnification, the Eligible
Lender Trustee shall compromise, settle, arbitrate or defend any claim or demand
in favor of or against the Trust Estate, and shall enter upon such contracts and
agreements and make such compromises of debts, claims or controversies
respecting the Trust Estate as the Grantor shall direct by written instructions
to the Eligible Lender Trustee.
(h) The Eligible Lender Trustee may execute any of the trusts or powers
hereof and perform any of its duties by or through attorneys, agents, receivers
or employees and shall not be answerable for the conduct of the same if
appointed with due care hereunder, and shall be entitled to advice of counsel
concerning all matters of trusts hereof and duties hereunder, and may in all
cases pay such reasonable compensation to any attorney, agent, receiver or
employee retained or employed by it in connection herewith. The Eligible Lender
Trustee may act upon the opinion or advice of an attorney or accountant selected
by it in the exercise of reasonable care or, if selected or retained by the
Grantor, approved by the Eligible Lender Trustee in the exercise of such care.
The Eligible Lender Trustee shall not be responsible for any loss or damage
resulting from any action or nonaction based on its good faith reliance upon
such opinion or advice.
Section 8. Limitation on Eligible Lender Trustee's Duties.
(a) The Eligible Lender Trustee shall perform only those duties as may be
required from time to time under the terms of this Agreement in connection with
the Eligible Lender Trustee's holding of Trust Student Loans that comprise the
Trust Estate. The Eligible Lender Trustee shall have no obligation to the
Grantor to administer, service or collect such Trust Student Loans or to
maintain or monitor administration, servicing or collection procedures followed
in connection with such Trust Student Loans, except insofar as specific
functions in that regard are required of the Eligible Lender Trustee pursuant to
the express terms of Section 7 hereof and appropriate written instructions of
the Grantor if required by such Section 7. The Eligible Lender Trustee shall not
be required to expend any of its own funds in connection with this Agreement or
its duties hereunder or under any related documents or agreements pertaining to
the Trust Estate.
(b) Notwithstanding any other provisions in this Agreement, nothing in
this Agreement shall be construed to limit the Eligible Lender Trustee's legal
responsibility to the Secretary of Education in its capacity as Eligible Lender
Trustee for any violations of statutory or regulatory requirements that may
occur with respect to Trust Student Loans in the Portfolio, pursuant to 34 CFR
ss. 682.203(b) or any successor provision thereto. The Eligible Lender Trustee
agrees not to delay paying any liability the Eligible Lender Trustee owes to the
Secretary
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by reason of such a violation for the purpose of first being indemnified by the
Grantor for such payment.
(c) The Eligible Lender Trustee shall not be responsible for any recital
herein or for the recording or re-recording, filing, re-filing of any document
or any supplement or amendment thereto, or the filing of financial statements,
or for the validity of the execution by the Grantor of this Agreement, or of any
supplemental agreements or instruments of further assurance, or for the value or
title of the property herein conveyed or otherwise as to the maintenance of the
security hereof.
(d) The Eligible Lender Trustee shall be protected in acting in reasonable
reliance upon any notice, order, requisition, request, consent, certificate,
order, opinion (including an opinion of counsel, which may be counsel for the
Grantor or the Eligible Lender Trustee's in-house counsel), affidavit, letter,
telegram or other paper or document in good faith deemed by it to be genuine and
correct and to have been signed or sent by the proper person or persons.
(e) As to the existence or non-existence of any fact or as to the
sufficiency or validity of any instrument, paper or proceeding, the Eligible
Lender Trustee shall be entitled to rely upon a certificate signed by an
authorized officer on behalf of the Grantor as sufficient evidence of the facts
therein contained.
(f) The permissive right of the Eligible Lender Trustee to do things
enumerated in this Agreement shall not be construed as a duty.
Section 9. Administration and Servicing of Portfolio.
(a) The Grantor is hereby appointed by the Eligible Lender Trustee as its
agent to originate, manage, service, administer, and make collections on Trust
Student Loans in the Portfolio. The Grantor shall perform its duties with
reasonable care, following its customary standards, policies and procedures and
using that degree of skill and attention that the Grantor exercises with respect
to all comparable loans that it originates, services, or administers for itself
or others. Without limiting the generality of the foregoing, the Grantor is
authorized and empowered by the Eligible Lender Trustee to execute and deliver,
on behalf of itself, the Eligible Lender Trustee or both of them, any and all
instruments of satisfaction or cancellation, or partial or full release or
discharge, and all other comparable instruments, with respect to the Trust
Student Loans in the Portfolio, except as otherwise required by the Act. The
Eligible Lender Trustee will furnish the Grantor with any powers of attorney or
other documents reasonably necessary or appropriate to enable the Grantor to
carry out its servicing and administrative duties hereunder.
(b) The Grantor may at any time without notice or consent delegate any or
all of its duties under this Agreement to any person; provided that the Grantor
shall at all times retain full responsibility for the duties performed by any
such party. The Grantor may at any time perform specific duties under this
Agreement through subcontractors provided that the Grantor shall at all times
retain full responsibility for the duties performed by such subcontractors.
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(c) To assure uniform quality in origination and servicing of the Trust
Student Loans and to reduce administrative costs, the Eligible Lender Trustee
hereby appoints the Grantor, and the Grantor accepts such appointment, to act as
agent of the Eligible Lender Trustee as custodian of the Trust Student Loans in
the Portfolio, which are hereby constructively delivered to the Eligible Lender
Trustee with respect to each such Trust Student Loan.
Section 10. Compensation and Indemnification of Eligible Lender Trustee.
The Eligible Lender Trustee shall be entitled to reasonable compensation
for all services rendered by it in the execution of the trust created hereunder
and in the exercise and performance of any of the powers and duties of the
Eligible Lender Trustee hereunder. The Eligible Lender Trustee shall also be
entitled to reimbursement from the Grantor for all reasonable costs and
out-of-pocket expenses incurred by the Eligible Lender Trustee. Such costs and
expenses shall be billed to the Grantor at the cost of the Eligible Lender
Trustee. Such expenses shall include all expenses, disbursements and advances
incurred or made by the Eligible Lender Trustee in accordance with the duties
required under any of the provisions of this Agreement (including the reasonable
compensation and the expenses and disbursements of its counsel and of all
persons not regularly in its employ) and those duties expressly required by law
which may not be transferred to the Grantor.
The Grantor hereby agrees to promptly indemnify the Eligible Lender
Trustee for, and to hold it harmless against, any loss, liability, expense or
advance incurred or made without negligence or bad faith on the part of the
Eligible Lender Trustee, including without limitation reasonable attorneys' fees
and expenses, arising out of or in connection with the acceptance or
administration of the Trust pursuant hereto, including without limitation, the
servicing of the Portfolio by third-party servicers pursuant to Section 3 above.
Such indemnification by the Grantor shall survive the termination of this
Agreement and/or resignation or removal of the Eligible Lender Trustee and shall
include, without limitation, any loss, liability, expense or advance incurred or
made by the Eligible Lender Trustee as a result of the acts or omissions of any
servicer in the organization or servicing of any of the Trust Student Loans.
Section 11. Resignation and Removal of Eligible Lender Trustee and
Appointment of Successor to the Eligible Lender Trustee.
(a) The Eligible Lender Trustee may at any time resign by giving written
notice to the Grantor. Upon receiving such notice of resignation, the Grantor
shall promptly appoint a successor to the Eligible Lender Trustee by an
instrument in writing. If no successor to the Eligible Lender Trustee shall have
been so appointed and have accepted appointment within 90 days after the giving
of such notice of resignation, the Grantor shall have an additional 180 days to
secure a successor to the Eligible Lender Trustee for the Trust Estate. If the
Grantor has not appointed a successor to the Eligible Lender Trustee within 270
days after the Eligible Lender Trustee has given its notice of resignation, the
Eligible Lender Trustee shall have the authority to petition, at the expense of
the Grantor, a court of competent jurisdiction to appoint a successor to the
Eligible Lender Trustee.
(b) The Grantor may at any time remove the Eligible Lender Trustee and
appoint a successor to the Eligible Lender Trustee by written instrument.
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(c) Any resignation or removal of the Eligible Lender Trustee and
appointment of a successor to the Eligible Lender Trustee, pursuant to any of
the provisions of this section, shall become effective only upon the effective
date of appointment by the successor to the Eligible Lender Trustee.
Section 12. Assignment; Corporate Changes in Eligible Lender Trustee.
Any bank, corporation or other entity into which the Eligible Lender
Trustee may be merged or converted or with which it may be consolidated; any
bank, corporation or other entity resulting from any merger, conversion or
consolidation to which the Eligible Lender Trustee shall be a party; and any
bank, corporation or other entity to which the Eligible Lender Trustee's rights
and obligations hereunder are assigned, shall be the Eligible Lender Trustee
under this Agreement without any further act, provided the resulting bank,
corporation, assignee or other entity at all times meets the qualifications set
forth in Section 14 hereof. The Eligible Lender Trustee's rights and obligations
hereunder may not be assigned to an entity that would not meet the
qualifications set forth in Section 14 hereof upon receipt of such assignment.
The Eligible Lender Trustee shall take responsible steps to ensure that an
entity that becomes a successor to the Eligible Lender Trustee under this
section meets the qualifications set forth in Section 15 at all times during
which such successor to the Eligible Lender Trustee holds legal title to the
Trust Student Loans comprising the Portfolio. The Eligible Lender Trustee shall
use its best efforts to give the Grantor at least 120 days' written notice of
any corporate change described in this Section 12.
Section 13. Termination.
The Grantor may at any time, in accordance with the provisions of Section
6 hereof, direct the Eligible Lender Trustee to distribute all of the assets
then held in trust to the Grantor or such other Person as the Grantor may
designate in writing, and upon such distribution this Agreement and the Trust
created hereunder shall terminate.
Section 14. Qualifications of Eligible Lender Trustee and Successor to the
Eligible Lender Trustee.
The Eligible Lender Trustee, and any successor to the Eligible Lender
Trustee, shall at all times during which it holds legal title to the Trust
Student Loans comprising the Portfolio maintain (a) eligible lender status under
the Act; (b) an eligible lender identification number, as eligible lender
trustee for the Grantor, issued by the Secretary of Education; (c) at the
written direction of the Grantor, all Guarantee Agreements with all Guarantors
on loans as to which it holds legal title in its capacity as Eligible Lender
Trustee hereunder; and (d) all corporate powers and governmental licenses,
authorizations, consents, and approvals required for it to act as Eligible
Lender Trustee and hold legal title to the Trust Student Loans comprising the
Portfolio.
Section 15. Quarterly Reports to Eligible Lender Trustee.
Not later than 60 days following the end of each calendar quarter during
the term hereof, the Grantor shall provide to the Eligible Lender Trustee a
report setting forth the total
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dollar amount of loan disbursements made or acquired for the Trust Estate during
such calendar quarter.
Section 16. Governing Law.
This Eligible Lender Trust Agreement shall be governed by the laws of the
State of New York, without giving effect to principles of conflicts of law.
Section 17. Miscellaneous Provisions.
All covenants and agreements herein and statements delivered pursuant
hereto shall bind and inure to the benefit of the parties hereto and their
respective permitted successors and assigns. This agreement supersedes all
previous agreements and understandings between the parties with respect to the
subject matter hereof. The Agreement may only be changed, modified, or
discharged, and any rights or obligations hereunder may only be waived, by a
written instrument signed by a duly authorized officer of the party against whom
enforcement any such waiver, change, modification or discharge is sought.
Section 18. Notice.
All communications, notices and approvals provided for hereunder shall be
in writing and personally delivered, mailed by registered or certified mail,
return receipt requested or sent by facsimile, to the Grantor at SLC Student
Loan Trust 200_-_, c/o [Owner Trustee], ___________________, Attn:
____________________, Facsimile No. ________________; to the Eligible Lender
Trustee ____________________, [Address], [until further notice: [Address]],
Attn: ______________, Facsimile No. __________, or at such other address or
number as either party may hereafter designate by notice to the other party.
Notice given in any such communication shall be deemed to have been given upon
receipt.
Section 19. Partial Invalidity.
Any provisions of this Eligible Lender Trust Agreement which are
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 20. Counterparts.
This Eligible Lender Trust 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.
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Section 21. Limitation on Liability.
It is expressly understood and agreed by the parties hereto
that (a) this Eligible Lender Trust Agreement is executed and delivered by [name
of owner trustee], not individually or personally but solely as trustee of
Grantor, in the exercise of the powers and authority conferred and vested in it,
(b) each of the representations, undertaking and agreements herein made on the
part of the Grantor is made and intended not as a personal representation
undertaking or agreement by [name of owner trustee] but is made and intended for
the purpose of binding only the Grantor, (c) nothing herein contained shall be
construed as creating any liability on [name of owner trustee], individually or
personally, to perform any covenant either expressed or implied contained
herein, all such liability, if any, being expressly waived by the parties hereto
and by any Person claiming by, through or under the parties hereto and (d) under
no circumstances shall [name of owner trustee] be personally liable for the
payment of any indebtedness or expenses of the Grantor or be liable for the
breach or failure of any obligation, representation, warranty or covenant made
or undertaken by the Grantor under this Eligible Lender Trust Agreement.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have executed this Eligible Lender
Trust Agreement on the day and year first above written.
SLC STUDENT LOAN TRUST 200_-_,
as Grantor
By [Name of Owner Trustee], not in its
individual capacity but solely as Owner
Trustee
By
--------------------------------
Name:
Title:
--------------------------------,
as Eligible Lender Trustee
By
--------------------------------
Name:
Title:
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