Exhibit 99.8
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AUCTION AGENCY AGREEMENT
BETWEEN
BANKERS TRUST COMPANY
AS TRUSTEE
AND
BANKERS TRUST COMPANY
AS AUCTION AGENT
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DATED AS OF ___________, __ 2002
RELATING TO
$---------------
SLC STUDENT LOAN TRUST-I
STUDENT LOAN ASSET-BACKED NOTES
CONSISTING OF
SERIES __________
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TABLE OF CONTENTS
1. DEFINITIONS AND RULES OF CONSTRUCTION..................................................................
1.1 Terms Defined by Reference to Indenture...........................................................
1.2 Terms Defined Herein..............................................................................
1.3 Rules of Construction.............................................................................
2. THE AUCTION............................................................................................
2.1 Purpose; Incorporation by Reference of Auction Procedures and Settlement Procedures...............
2.2 Preparation for Each Auction; Maintenance of Registry of Existing Owners..........................
2.3 All Hold Rate, Maximum Auction Rate and Applicable LIBOR Rate.....................................
2.4 Auction Schedule..................................................................................
2.5 Changes to the Auction Rate Period or Auction Date................................................
2.6 Notices to Existing Owners........................................................................
2.7 Ownership by Issuer Prohibited....................................................................
2.8 Payment Defaults..................................................................................
2.9 Broker-Dealers....................................................................................
2.10 Access to and Maintenance of Auction Records......................................................
3. THE AUCTION AGENT......................................................................................
3.1 Duties and Responsibilities of the Auction Agent..................................................
3.2 Representations and Warranties of the Auction Agent...............................................
3.3 Rights of the Auction Agent.......................................................................
3.4 Auction Agent's Disclaimer........................................................................
3.5 Compensation, Remedies and Indemnification Relating to the Auction Agent..........................
3.6 Compensation of the Broker-Dealers................................................................
3.7 Representations and Warranties of the Trustee.....................................................
3.8 Qualification of Auction Agent....................................................................
4. MISCELLANEOUS..........................................................................................
4.1 Term of Agreement.................................................................................
4.2 Communications....................................................................................
4.3 Entire Agreement..................................................................................
4.4 Benefits..........................................................................................
4.5 Amendment; Waiver.................................................................................
4.6 Successors and Assigns............................................................................
4.7 Severability......................................................................................
4.8 [Reserved]........................................................................................
4.9 Execution in Counterparts.........................................................................
4.10 Governing Law.....................................................................................
5. OTHER..................................................................................................
5.1 Trust Obligations.................................................................................
EXHIBIT A - LIST OF INITIAL BROKER-DEALERS...................................................................EXH. A
This Auction Agency Agreement (the "Agreement"), dated as of ________ __,
2002, between BANKERS TRUST COMPANY, a New York banking corporation (the
"Trustee") solely in its capacity as Trustee under a General Indenture, dated as
of ________ __, 2002, by and between SLC Student Loan Trust-I, a Delaware
business TRUST, (the "Issuer"), and the Trustee thereunder (the "General
Indenture"), as supplemented and amended by a First Supplemental Indenture,
dated as of ________ __, 2002, by and between the Issuer and the Trustee, and
the respective Auction Procedures attached as [Exhibit A] thereto (the "Auction
Procedures") (collectively referred to herein as the "Indenture"), and BANKERS
TRUST COMPANY, a New York banking corporation (together with its successors and
assigns, the "Auction Agent") acting as Auction Agent pursuant to the provisions
of the Indenture.
The Issuer proposes to issue $___________ aggregate principal amount of
its Student Loan Asset-Backed Notes, Series ____________ (the "Offered Notes").
The Offered Notes will be issued pursuant to the Indenture. Pursuant to [Section
1.13] of the Auction Procedures, the Auction Agent has been appointed to act in
the capacities set forth in this Agreement. The Trustee is entering into this
Agreement upon the direction of the Issuer and pursuant to the terms of the
Indenture.
Whereas, the Trustee is entering into this Agreement at the direction of
the Issuer pursuant to and in accordance with the terms of the 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 and the Auction Agent agree as follows:
1. DEFINITIONS AND RULES OF CONSTRUCTION.
1.1 Terms Defined by Reference to Indenture. Capitalized terms not defined
herein shall have the respective meanings specified in the Indenture, including
the Auction Procedures.
1.2 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:
(a) "AUCTION" shall have the meaning specified in Section 2.1
hereof.
(b) "AUCTION AGENT FEE" shall have the meaning specified in Section
4.5(a) hereof.
(c) "AUCTION PROCEDURES" shall mean the Auction Procedures that are
set forth in [Exhibit A] to the First Supplemental Indenture.
(d) "AUTHORIZED OFFICER" shall mean, with respect to the Auction
Agent, each Managing Director, Vice President, Assistant Vice President
and Associate of the Auction Agent and every other officer of the Auction
Agent assigned to its Corporate Trust & 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.
(e) "AUTHORIZED TRUSTEE REPRESENTATIVE" shall mean each Senior Vice
President, Vice President, and Assistant Vice President 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.
(f) "BROKER-DEALER AGREEMENT" shall mean each agreement between the
Auction Agent and a Broker-Dealer substantially in the form of the
Broker-Dealer Agreement, dated as of ________ _, 2002, between Bankers
Trust company, as Auction Agent, and Xxxxxxx Xxxxx Xxxxxx Inc., as
Broker-Dealer, hereby incorporated by reference.
(g) "BROKER-DEALER FEE" shall have the meaning specified in Section
4.6(a) hereof.
(h) "DTC PARTICIPANT" or "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.
(i) "EXISTING OWNER REGISTRY" shall mean the register of Existing
Owners maintained by the Auction Agent pursuant to Section 2.2(b)(i)
hereof.
(j) "OWNER" shall be the beneficial owner of any Offered Notes.
(k) "LETTER OF REPRESENTATION" shall mean the letter of
representations from the Issuer and the Trustee to The Depository Trust
Company ("Depository") of even date herewith relating to the Offered
Notes.
(l) "SETTLEMENT PROCEDURES" shall mean the Settlement Procedures
attached to the Broker-Dealer Agreement as Exhibit A thereto.
1.3 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;
(d) all references herein to a particular time of day shall be to
New York City time; and
(e) in case of any conflict between the provisions of this Agreement
and provisions of the Auction Procedures, the Auction Procedures shall
control.
2. THE AUCTION.
2.1 Purpose; Incorporation by Reference of Auction Procedures and
Settlement Procedures.
(a) The Indenture provides that the interest rate on Offered Notes
for each Auction Period after the Initial Interest Period, except as
otherwise provided in the Auction Procedures, shall be, subject to certain
exceptions, equal to the Auction Rate that the Auction Agent advises has
resulted on the Auction Date from the implementation of the Auction
Procedures. The Issuer hereby appoints Bankers Trust Company as Auction
Agent to perform all duties and obligations of the Auction Agent set forth
herein. Bankers Trust Company hereby accepts such appointment as Auction
Agent and agrees it will perform such duties and obligations, including,
without limitation, on each Auction Date, the procedures set forth in this
Section 2 and the Auction Procedures for the purpose of, among other
things, determining the applicable Auction Rate for each Auction Rate
Period (other than the Initial Interest Period). Each periodic operation
of such procedures is hereinafter referred to as an "Auction".
(b) 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.
2.2 Preparation for Each Auction; Maintenance of Registry of Existing
Owners.
(a) A list of Broker-Dealers is attached as Exhibit B to this
Auction Agent Agreement. Not later than seven days prior to any Auction
Date for which any change in such list of Broker-Dealers is to be
effective, the Issuer will notify the Auction Agent and the Trustee in
writing of such change. If any such change is the addition of a
Broker-Dealer to such list, at the request of the Auction Agent the
Issuer, not later than two days prior to each Auction Date, shall enter
into an additional Broker-Dealer Agreement or agreements to be used in
connection with such forthcoming Auction Date. 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.
(b) (i) The Auction Agent shall maintain a current registry of
Broker-Dealers, compiled as described below, that are Owners of Offered
Notes (such registry being herein called the "Existing Owner Registry").
Such persons shall constitute the Existing Owners for purposes of each
Auction. The Issuer shall provide to the Auction Agent only on the Issue
Date a list of the initial Existing Owners of Offered Notes and the
aggregate principal amount of Offered Notes held by such Existing Owners.
Thereafter, the Auction Agent shall indicate in the Existing Owner
Registry the aggregate principal amount of Offered Notes held by each
initial Existing Owner and the identity of the respective Broker-Dealer of
each Existing Owner, if any, on whose behalf such Broker-Dealer submitted
the most recent Order in any Auction which resulted in such Existing Owner
continuing to hold or purchasing the Offered Notes. The Auction Agent may
conclusively rely upon, as evidence of the identities of the Existing
Owners, (A) such Registry, (B) the results of each Auction, (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 2.2(b)(iii) hereof and (D) the selection by the Securities
Depository of the Existing Owners whose Offered Notes are to be tendered
for purchase and any notices from Broker-Dealers in connection therewith.
(ii) The Trustee shall notify the Auction Agent and the Credit
Facility Provider when any notice of redemption is sent by the Trustee to
the Securities Depository as Registered Owner of Offered Notes not later
than 5:00 P.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 Offered Notes, the Auction Agent shall, at least three Business
Days prior to the Redemption Date, with respect to such Offered Notes,
request the Securities Depository to notify the Auction Agent of the
identities of the Participants (and the respective principal amounts) from
the accounts of which Offered 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 Offered 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
Offered Notes are to be redeemed) the aggregate principal amount of such
Offered 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 Offered Notes; 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 beneficial owner of
the aggregate principal amount of Offered 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 in
writing.
(iii) The Auction Agent shall register in the Existing Owner
Registry a transfer of Offered Notes from an Existing Owner to another
person only if such transfer is made to a person or such person's
Broker-Dealer, only if (A) such transfer is pursuant to an Auction or (B)
if 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 C to the Broker-Dealer Agreement by the Broker-Dealer
of any person that (i) purchased any Offered Notes and the seller failed
to deliver such Offered Notes or (ii) sold any Offered Notes and the
purchaser failed to make payment to such person upon delivery to the
purchaser of such Offered Notes. The Auction Agent is not required to
accept any notice of transfer or any notice of a failure to deliver
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.
(c) 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
Existing Owners of Offered Notes and the aggregate principal amount of
Offered Notes beneficially owned by each such customer. Except as
permitted by Section 2.10 hereof, the Auction Agent shall treat such
information as it treats its own confidential information and shall not
authorize disclosure of 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 would subject the Auction Agent to liability for
which it has not received indemnity satisfactory to it.
(d) 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 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.
2.3 All Hold Rate, Maximum Auction Rate and Applicable LIBOR Rate.
(a) On the date hereof the Applicable LIBOR Rate for the Series
_____ Notes is ____%. In determining the Maximum Auction Rate on any
Auction Date as set forth in Section 2.3(b)(i) hereof, the Auction Agent
shall be entitled to conclusively rely on the Applicable LIBOR Rate of
which it has most recently received notice (or, in the absence of such
notice, the Applicable LIBOR Rate set forth in the first sentence of this
paragraph (a)).
(b) (i) On each Auction Date, the Auction Agent shall determine the
Carry-over Amount and any interest thereon, the Maximum Auction Rate, the
Maximum Rate, the Maximum Interest Rate, the All Hold Rate, 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 such rates.
(ii) If the ownership of the Offered Notes is no longer maintained
in book-entry form by the Depository, no further Auctions will be held and
the interest rate on the Offered Notes for each subsequent Auction Period
will equal the Maximum Rate as determined by the Auction Agent on the
Business Day immediately preceding the first day of such Auction Period as
provided in the Indenture.
(c) Upon receipt of notice from the applicable Broker-Dealer of a
change in the length of one or more Auction Periods described in the
Indenture, and provided that no certificate was received from such
Broker-Dealer pursuant to the terms of the Indenture, then the interest
rate on the Offered Notes for the next Auction Period shall be determined
pursuant to the Auction Procedures. If a certificate from a Broker-Dealer
is received by the Auction Agent pursuant to the terms of the Indenture
but Sufficient Clearing Bids do not exist on the Auction Date for such
first Auction Period then the interest rate on the Offered Notes for the
Auction Period shall be the Maximum Rate as provided in the Indenture.
2.4 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, at the direction of the Issuer, 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 9:30 A.M. Auction Agent obtains the Maximum Auction Rate,
the Maximum Rate, the Maximum Interest Rate, the
All Hold Rate, One-Month LIBOR and the
Applicable LIBOR Rate. Auction Agent notifies
the Trustee, and the Broker-Dealers of the
Maximum Auction Rate, the Maximum Rate, the
Maximum Interest Rate, the All Hold Rate,
One-Month LIBOR and the Applicable LIBOR Rate.
9:30 A.M. - 1:00 P.M. Auction Agent assembles information communicated
to it by Broker-Dealers as provided in the
Auction Procedures. Submission Deadline is 1:00
P.M.
Not earlier than Auction Agent makes determinations pursuant to
1:00 P.M. the Auction Procedures.
Submitted Bids and Submitted Sell Orders are
accepted and rejected in whole or in part and
principal amounts of Offered Notes are allocated
as provided in the Auction Procedures. Auction
Agent gives notice of Auction results as set
forth in Section 2.4(a) of the Broker-Dealer
Agreement.
Not later than Auction Agent advises the Trustee of the Auction
3:00 P.M. Rate for the next Interest Period and the
results of the Auction as provided in the
Auction Procedures.
The Auction Agent shall follow the notification procedures set forth in
paragraph (a) of the Settlement Procedures.
2.5 Changes to the Auction Rate Period or Auction Date.
(i) The Auction Agent shall mail any certificate delivered to it
pursuant to [Section 1.15(a)(i)] of the Auction Procedures to the
Existing Owners within two Business Days of its receipt thereof.
(ii) The Auction Agent shall mail any notice delivered to it pursuant to
[Section 1.15(a)(iv)] of the Auction Procedures to the Existing
Owners within the two Business Days of its receipt thereof.
(iii) If, after delivery to the Auction Agent of the notice referred to in
[Section 1.15(a)(i)] of the Auction Procedures, the Auction Agent
fails to receive the certificate referred to in [Section 1.15(a)(i)]
of the Auction Procedures by 11:00 A.M. on the Business Day
immediately preceding the next succeeding 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.
(iv) If, after delivery to the Auction Agent of the notice referred to in
[Section 1.15(a)(i)] of the Auction Procedures and the notice
referred to in [Section 1.15(a)(iv)] of the Auction Procedures,
Sufficient Clearing Bids are not received by the Auction Agent by
the Submission Deadline, the Auction Agent shall deliver a notice to
the Broker-Dealers not later than 3:00 P.M. on such Auction Date by
telephone confirmed in writing the next Business Day.
2.6 Notices to Existing Owners.
The Auction Agent shall be entitled to conclusively rely upon the address
of each Existing Owner as such address is delivered by such Existing Owner or
such Existing Owner's Broker-Dealer or Participant in connection with any notice
to Existing Owners required to be given by the Auction Agent.
2.7 Ownership by Issuer Prohibited.
The Issuer may not submit any Order or Bid, directly or indirectly, in any
Auction. The Auction Agent shall have no duty or liability with respect to
monitoring compliance with or enforcing this Section 2.7.
2.8 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 following its receipt thereof 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 waived
or cured to the Broker-Dealers on the Business Day following its receipt
thereof by telecopy or other similar means.
(c) If a Payment Default shall have occurred, the Auction Agent
shall calculate the Default 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.
2.9 Broker-Dealers.
(a) If the Auction Agent is provided with a copy of a Broker-Dealer
Agreement, which has been manually signed by any person listed on Exhibit
B hereto, and to which the Issuer shall have consented, it shall enter
into such Broker-Dealer Agreement with such person.
(b) The Auction Agent may, at the written request of the Issuer,
enter into a Broker-Dealer Agreement with any other person who requests to
be selected to act as a Broker-Dealer. 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. The Auction
Agent shall only be required to enter into a Broker-Dealer Agreement if
such Broker-Dealer Agreement is in substantially the form of the
Broker-Dealer Agreement executed and delivered on the date hereof.
(c) The Auction Agent shall terminate any Broker-Dealer Agreement as
set forth therein if so directed in writing by the Issuer.
2.10 Access to and Maintenance of Auction Records.
The Auction Agent shall afford to the Trustee and the Issuer, its agents,
independent public accountants and counsel, access at reasonable times during
normal business hours to review and make extracts or copies (at the Issuer's
sole cost and expense and at no cost to the Auction Agent) 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. For purposes of this Section 2.10, the
Broker-Dealers shall not be considered to be agents of the Trustee or of the
Issuer. The Auction Agent shall maintain records relating to any Auction for a
period of two years after such Auction (unless requested by the Issuer 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.
At the end of such period, if requested to do so in writing, the Auction Agent
shall deliver such records to the Trustee. The Trustee and the Issuer agree 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 2.10. 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. The
Auction Agent shall not be responsible or liable for any actions of the Trustee
or the Issuer or their respective agents, accountants or counsel for disclosure
of confidential information as a result of such access.
3. THE AUCTION AGENT.
3.1 Duties and Responsibilities of the Auction Agent.
(a) The Auction Agent is acting solely as agent for the Trustee and
the Issuer hereunder and has no duties to any other person and owes no
fiduciary duties to any other person by reason of this Agreement.
(b) The Auction Agent undertakes to perform such duties and only
such duties as are specifically set forth in the Auction Procedures as
they have been incorporated herein, and in this Agreement itself, and no
implied covenants or obligations shall be read into the Auction Procedures
or this Agreement or any Broker-Dealer Agreement against the Auction
Agent.
(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.
3.2 Representations and Warranties of the Auction Agent.
(a) The Auction Agent hereby represents and warrants to the Trustee
that it (i) has been duly incorporated and is validly existing and in good
standing as a New York banking corporation and (ii) has all necessary
authority, approvals, consents (whether from the Issuer or otherwise) to
enter into and perform its obligations under this Agreement; this
Agreement has been duly and validly authorized, executed and delivered by
the Auction Agent and constitutes the legal, valid, binding and
enforceable obligation of the Auction Agent, except as enforcement thereof
may be limited by bankruptcy, insolvency, moratorium, reorganization or
other laws of general applicability relating to or affecting creditors'
rights and subject to general principles of equity and the exercise of
judicial discretion.
(b) Neither the execution, delivery and performance of this
Agreement, the consummation of the transactions contemplated hereby nor
the fulfillment of or compliance with the terms and conditions of this
Agreement will conflict with, violate or result in a breach of, the terms,
conditions or provisions of, or constitute a default under, any law or
regulation, any order or decree of any court or public authority having
jurisdiction over the Auction Agent, to the best of its knowledge without
any independent investigation, or any mortgage, indenture, contract,
agreement or undertaking to which the Auction Agent is party or by which
it is bound, or the organizational documents pursuant to which the Auction
Agent has been created and under which it is operating.
(c) All approvals, consents and orders of any governmental
authority, legislative body, board, agency or commission having
jurisdiction over the Auction Agent which would constitute a condition
precedent to or the absence of which would materially adversely affect the
due performance by the Auction Agent of its obligations under this
Agreement have been obtained.
3.3 Rights of the Auction Agent.
(a) The Auction Agent may conclusively rely and shall be fully
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 Securities Depository. The Auction Agent may record telephone
communications with the Trustee or with the Broker-Dealers or both.
(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. The Trustee, at the
direction of the Issuer, agrees to pay, or cause to be paid, the
reasonable fees and expenses of counsel to the Auction Agent, including
but not limited to those incurred in connection with the negotiation of
this Agreement and the transactions contemplated thereby, but such payment
shall be made solely from moneys available under the Indenture for such
purpose or other moneys provided by the Issuer.
(d) The Auction Agent may perform its duties and exercise its rights
hereunder either directly or by or through agents or attorneys.
(e) The Auction Agent shall have no obligation or liability in
respect of the registration or exemption therefrom of the Offered Notes
under federal or state securities laws or in respect of the sufficiency or
the conformity of any transfer of Offered Notes pursuant to the terms of
this Agreement, any Broker-Dealer Agreement, the Indenture or the Auction
Procedures or any other document contemplated therein or thereby.
3.4 Auction Agent's Disclaimer.
The Auction Agent makes no representation as to the correctness of the
recitals in, or the validity or adequacy of, this Agreement, the Broker-Dealer
Agreement, the Offered Notes, any offering document used to make offers or sales
thereof or any other agreement or instrument executed in connection with the
transactions contemplated herein.
3.5 Compensation, Remedies and Indemnification Relating to the Auction
Agent.
(a) The Auction Agent shall be entitled to receive an annual fee
("the Auction Agent Fee") for all services rendered by it under this
Agreement and the Broker-Dealer Agreement pursuant to its fee letter with
the Issuer.
(b) The Issuer shall indemnify and hold harmless the Auction Agent
and its directors, officers, employees and agents, but solely to the
extent payable from Trust Estate pursuant to the Indenture from 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 Issuer shall not indemnify the Auction Agent
pursuant to this Section 4.5(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 Agreement.
3.6 Compensation of the Broker-Dealers.
(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
Broker-Dealer Fee shall be ________% per annum.
(b) On each Interest Payment Date the Auction Agent shall pay the
Broker-Dealer Fee payable to each Broker-Dealer, as provided in Section
2.5 of the Broker-Dealer Agreements.
3.7 Representations and Warranties of the Trustee.
(a) The Trustee hereby represents and warrants to the Auction Agent
that it (i) has been duly incorporated and is validly existing and in good
standing as a New York banking corporation and (ii) has all necessary
authority, approvals, consents (whether from the Issuer or otherwise) to
enter into and perform its obligations under this Agreement; this
Agreement has been duly and validly authorized, executed and delivered by
the Trustee and constitutes the legal, valid, binding and enforceable
obligation of the Trustee, except as enforcement thereof may be limited by
bankruptcy, insolvency, moratorium, reorganization or other laws of
general applicability relating to or affecting creditors' rights and
subject to general principles of equity and the exercise of judicial
discretion.
(b) Neither the execution, delivery and performance of this
Agreement, the consummation of the transactions contemplated hereby nor
the fulfillment of or compliance with the terms and conditions of this
Agreement will conflict with, violate or result in a breach of, the terms,
conditions or provisions of, or constitute a default under, any law or
regulation, any order or decree of any court or public authority having
jurisdiction over the Trustee, or any mortgage, indenture, contract,
agreement or undertaking to which the Trustee is party or by which it is
bound, or the organizational documents pursuant to which the Trustee has
been created and under which it is operating.
(c) All approvals, consents and orders of any governmental
authority, legislative body, board, agency or commission having
jurisdiction over the Trustee which would constitute a condition precedent
to or the absence of which would materially adversely affect the due
performance by the Trustee of its obligations under this Agreement have
been obtained.
3.8 Qualification of Auction Agent.
Each Auction Agent shall be (i) a bank or trust company duly organized
under the laws of the United States of America or any state or territory thereof
having its principal place of business in the Borough of Manhattan, in The City
of New York (or such other location as may be approved by the Trustee), and
having a combined capital stock, surplus and undivided profits of at least
$__________; or (ii) a member of the National Association of Securities Dealers,
Inc., having net capital of at least $__________ and, in either case, authorized
by law to perform all the duties imposed upon it hereunder and under the
Indenture.
4. MISCELLANEOUS.
4.1 Term of Agreement.
(a) This Agreement shall terminate on the earlier of (i) the date on
which Offered Notes are no longer outstanding under the Indenture and (ii)
the date on which this Agreement is terminated in accordance with this
Section 4.1. This Agreement shall also be terminated if all of the Offered
Notes are converted to Offered Notes bearing interest at either a Fixed
Rate or an Adjustable Rate. The Auction Agent may resign and be discharged
of the duties and obligations created by the First Supplemental Indenture
by giving at least 90 days' written notice to the Issuer, the Trustee and
the Broker-Dealers (30 days' written notice if the Auction Agent has not
been paid its fee 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 direction of (i) the Issuer or (ii) the holders
of 66-2/3% of the aggregate principal amount of the Offered Notes, by an
instrument signed by the Trustee and filed with the Auction Agent, the
Issuer and the Broker-Dealers upon at least 90 days' notice; provided
that, if required by the Broker-Dealer, an agreement in substantially the
form of the Auction Agency Agreement shall be entered into with a
successor Auction Agent. 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. Neither resignation nor removal of
the Auction Agent pursuant to the preceding two sentences shall be
effective until and unless a successor Auction Agent satisfying the
requirements of Section 3.8 hereof has been appointed and has accepted
such appointment. If required by the Issuer, a replacement Auction Agency
Agreement shall be entered into with a successor Auction Agent.
Notwithstanding the foregoing, the Auction Agent may terminate this
Agreement if, within 45 days after notifying the Trustee, and the Issuer
in writing that it has not received payment of any Auction Agent Fee due
it in accordance with the terms of this Agreement, the Auction Agent does
not receive such payment. If the Auction Agent shall resign or be removed
or be dissolved, or if the property or affairs of the Auction Agent shall
be taken under the control of any state or federal court or administrative
body because of bankruptcy or insolvency, or for any other reason, the
Issuer shall use its best efforts to appoint a successor Auction Agent,
and the Trustee shall thereupon enter into an Auction Agency Agreement
with such successor.
(b) Except as otherwise provided in this Section 4.1(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 Issuer to the Auction Agent under Section
3.5 hereof and to the Broker-Dealers under Section 3.6 hereof shall
survive the termination of this Agreement. Upon termination of this
Agreement, to the extent requested to do so in writing, the Auction Agent
shall (i) promptly deliver to the Trustee copies of all books and records
maintained by it in connection with its duties hereunder, and (ii)
promptly transfer to the Trustee or any successor Auction Agent any funds
deposited by the Trustee or 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.
4.2 Communications.
Except for (i) communications authorized to be made by telephone pursuant
to this Agreement or the Auction Procedures and (ii) communications in
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 Trustee, addressed:
Bankers Trust Company
Four Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Until further notice:
000 Xxxxx Xxx
Xxxxxx Xxxx, Xxx Xxxxxx 00000
Attention: ____________________
Telephone: (212) ___-____ / (201) ___ - ____
Facsimile: (212) ___-____ / (201) ___ - ____
If to the Auction Agent, addressed:
Bankers Trust Company
Four Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Until further notice:
000 Xxxxx Xxx
Xxxxxx Xxxx, Xxx Xxxxxx 00000
Attention: Auction Rate Securities
Telephone: (000) 000-0000 / (000) 000-0000
Facsimile: (000) 000-0000 / (000) 000-0000
If to the Issuer, addressed:
SLC Student Loan Trust-I
000 Xxxxxxxxxx Xxxxxxxxx
0xx Xxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: _____________________
Telephone: (203) ___-____
Facsimile: (203) ___-____
If to the Broker-Dealer, addressed:
Xxxxxxx Xxxxx Xxxxxx Inc.
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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.
4.3 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.
4.4 Benefits.
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.
4.5 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 both
parties hereto; provided, however, that the provisions of this Agreement
regarding Auction Procedures may be amended from time to time to conform
to such procedures to industry or market practices solely upon the written
consent of the parties hereto and upon written notice of such amendment to
the affected Owners of such Offered Notes, and no prior written consent of
any such owner shall be required in connection with such amendment.
(b) The Trustee shall promptly notify the Auction Agent of any
proposed amendment of or supplement to the Indenture (which notice shall
include a copy thereof). In the event the Auction Agent in its discretion
determines that such amendment or supplement would materially affect the
Auction Agent's duties or obligations under either this Agreement or the
Indenture, the Auction Agent may resign from its duties under this
Agreement and the Indenture, which resignation shall be effective no later
than the effective date of such amendment or supplement subject to the
terms of Section 4.1.
(c) 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.
4.6 Successors 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 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.
4.7 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.
4.8 [Reserved].
4.9 Execution in Counterparts.
This Agreement may be simultaneously executed in several counterparts,
each one of which shall be an original and all of which shall constitute but one
and the same instrument.
4.10 Governing Law.
This Agreement shall be governed by and construed in accordance with the
laws of the State of New York.
5. OTHER.
5.1 Trust Obligations.
All privileges, rights and immunities given to the Trustee in the
Indenture are hereby extended to and applied to the Trustee's obligations
hereunder.
IN WITNESS WHEREOF, the parties hereto have caused this agreement to be
duly executed and delivered by their proper and duly authorized officers as of
the date first above written.
BANKERS TRUST COMPANY,
AS TRUSTEE
By: _______________________
Name:__________________
Title:_________________
AUCTION AGENCY AGREEMENT EXECUTION PAGE
FOR AUCTION AGENT
BANKERS TRUST COMPANY,
AS AUCTION AGENT
By: _______________________
Name:__________________
Title:_________________
AUCTION AGENCY AGREEMENT EXECUTION PAGE
FOR THE ISSUER
The Issuer acknowledges and approves its obligations under this Agreement.
SLC STUDENT LOAN TRUST-I,
By: _______________________
Name:__________________
Title:_________________
EXHIBIT A
TO AUCTION AGENCY AGREEMENT
List Of Initial Broker-Dealers
Xxxxxxx Xxxxx Xxxxxx Inc.
