EXHIBIT 4.5
EXECUTION COPY
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ELIGIBLE LENDER TRUST AGREEMENT
between
SLC STUDENT LOAN TRUST-I
as Grantor
and
BANKERS TRUST COMPANY
as Eligible Lender Trustee
Dated as of March 27, 2002
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ELIGIBLE LENDER TRUST AGREEMENT
THIS ELIGIBLE LENDER TRUST AGREEMENT is made on March 27, 2002, by
and between SLC STUDENT LOAN TRUST-I (the "Grantor") and BANKERS TRUST COMPANY,
as eligible lender trustee (the "Eligible Lender Trustee").
W I T N E S S E T H :
- - - - - - - - - -
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
("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 Student Loans for the benefit of the Grantor;
WHEREAS, the Eligible Lender Trustee and certain Guarantors have
entered or will enter into Contracts of Guarantee with respect to the Student
Loans; and
WHEREAS, the Grantor intends to provide the Eligible Lender Trustee
with written instruction on all aspects of the management of the 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 shall have
the meanings specified in this Section 1.
"Administration Agreement" shall mean the Administration Agreement,
dated March 27, 2002, by and among the Grantor, the Indenture Trustee and The
Student Loan Corporation, as administrator.
"Contract of Guarantee" shall mean a contract between a Guarantor
and the Eligible Lender Trustee providing for, or a certificate or other
evidence of, the Guarantee of one or more Student Loans pursuant to the Act.
"Custody Agreement" shall mean the Custody Agreement, dated as of
March 27, 2002, by and among the Grantor, the Eligible Lender Trustee and
SunTech, Inc., a Mississippi corporation, as custodian.
"Guarantor" shall mean any body or organization which has entered
into a federal reinsurance agreement with the Secretary of Education pursuant to
the Act.
"Indenture" shall mean Indenture of Trust, dated as of March 27,
2002, by and among the Grantor, the Eligible Lender Trustee and the Indenture
Trustee.
"Indenture Trustee" shall mean Bankers Trust Company, as indenture
trustee, pursuant to the Indenture.
"Interest Subsidy Payments" shall mean the interest subsidy payments
authorized to be made by the Secretary of Education pursuant to Section 428 of
the Act, or similar subsidies authorized from time to time by federal law or
regulation.
"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.
"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
March 27, 2002, by and between the Grantor and The Student Loan Corporation, as
servicer.
"Special Allowance Payments" shall mean special allowance payments
authorized to be made by the Secretary of Education pursuant to Section 438(b)
of the Act, or similar allowances authorized from time to time by federal law or
regulation.
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 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 Student Loans pursuant
to a 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, if sub-serviced, sub-serviced by
Sun Tech, Inc. 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 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 Contracts of
Guarantee 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 Student Loans: scheduled payments of
principal, interest, late fees and penalties by borrowers, prepayments of
principal 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 Student Loans
are entitled to under the Act.
Subject to the terms of the Indenture, the Administration Agreement,
the Custody 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 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 Contracts of Guarantee 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 Contracts of Guarantee 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
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.
(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 Student Loans that
comprise the Trust Estate. The Eligible Lender Trustee shall have no obligation
to the Grantor to administer, service or collect such Student Loans or to
maintain or monitor administration, servicing or collection procedures followed
in connection with such 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 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 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
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 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.
(c) To assure uniform quality in origination and servicing of the
Student Loans and to reduce administrative costs, the Eligible Lender Trustee
hereby agrees to enter into the Custody Agreement with respect to the Student
Loans in the Portfolio, which are hereby constructively delivered to the
Eligible Lender Trustee.
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 Student Loans.
Section 11. Resignation and Removal of Eligible Lender Trustee and Appointment
of Successor 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 Eligible Lender Trustee by an
instrument in writing. If no successor 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 Eligible Lender Trustee for the Trust Estate. If the Grantor
has not appointed a successor 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 Eligible Lender Trustee.
(b) The Grantor may at any time remove the Eligible Lender Trustee
and appoint a successor Eligible Lender Trustee by written instrument.
(c) Any resignation or removal of the Eligible Lender Trustee and
appointment of a successor 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 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 Eligible Lender Trustee under this section meets
the qualifications set forth in Section 15 at all times during which such
successor Eligible Lender Trustee holds legal title to the 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
Eligible Lender Trustee.
The Eligible Lender Trustee, and any successor Eligible Lender
Trustee, shall at all times during which it holds legal title to the 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 Contracts of Guarantee 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 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 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 or mailed by registered or
certified mail, return receipt requested, or by facsimile, to the Grantor at SLC
Student Loan Trust-I, c/o Wilmington Trust Company, as Delaware Trustee, Xxxxxx
Square North, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attn:
Corporate Trust Administration, Facsimile No. (000) 000-0000; to the Eligible
Lender Trustee at Bankers Trust Company, Four Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, until further notice:100 Xxxxx Xxx, Xxxxxx Xxxx, XX 00000, Attn:
Structured Finance Services, Facsimile No. (000) 000-0000, or at such other
address 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.
IN WITNESS WHEREOF, the parties hereto have executed this Eligible
Lender Trust Agreement on the day and year first above written.
SLC STUDENT LOAN RECEIVABLES I, INC.,
as Grantor
By /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Chief Financial Officer
Bankers Trust Company,
as Eligible Lender Trustee
By /s/ Xxxxxx Xxxxxx
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Name: Xxxxxx Xxxxxx
Title: Vice President
