EXHIBIT 4.2
EXECUTED VERSION
AMENDED AND RESTATED TRUST AGREEMENT
This AMENDED AND RESTATED TRUST AGREEMENT, dated as of June 15, 2005
(this "Agreement"), by and between, SLC Student Loans Receivables I, Inc., a
Delaware corporation, as depositor (the "Depositor"), and Wilmington Trust
Company, a Delaware banking corporation, as owner trustee (the "Owner Trustee").
WHEREAS, the Depositor and the Owner Trustee are parties to that
certain Short-Form Trust Agreement, dated as of June 1, 2005, pursuant to which
SLC Student Loan Trust 2005-1 was created (the "Original Trust Agreement"); and
WHEREAS, the Depositor and the Owner Trustee desire to amend and
restate the Original Trust Agreement in its entirety on the terms and conditions
as set forth below.
NOW, THEREFORE, in consideration of the mutual agreements,
provisions and covenants contained herein, the Original Trust Agreement is
amended and restated to read in its entirety, and the parties hereto agree, as
follows:
ARTICLE I
DEFINITIONS
Capitalized terms used herein and not defined herein shall have the
meanings assigned to such terms in Appendix A to the Indenture, dated as of June
15, 2005 (the "Indenture"), among the Issuer, Wachovia Bank, National
Association, as Indenture Trustee, Citibank, N.A., as Indenture Administrator,
and Citibank, N.A., as Eligible Lender Trustee, which also contains rules of
usage and construction that shall be applicable herein.
ARTICLE II
ORGANIZATION
Section 2.01 General. (a) The Trust created by the Original Trust
Agreement shall be known as SLC Student Loan Trust 2005-1 (the "Trust"), in
which name the Owner Trustee may conduct the activities contemplated hereby,
make and execute contracts and other instruments on behalf of the Trust and sue
and be sued.
(b) The Depositor is hereby authorized, as the agent of the Trust,
(i) to file with the Commission and execute, in each case on behalf of the
Trust, the Registration Statement on Form S-3 (the "1933 Act Registration
Statement"), including any pre-effective or post-effective amendments to the
1933 Act Registration Statement, relating to the registration under the 1933
Act, of the Trust securities; (ii) to file and execute on behalf of the Trust
such applications, reports, surety bonds, irrevocable consents, appointments of
attorney for service of process and other papers and documents as shall be
necessary or desirable to register the Trust securities under the securities or
"Blue Sky" laws of such jurisdictions as the Depositor, on
behalf of the Trust, may deem necessary or desirable; (iii) to execute on behalf
of the Trust one or more underwriting agreements relating to the Trust
securities, among the Trust, the Depositor and the underwriter named therein,
substantially in the form included as an exhibit to the 1933 Act Registration
Statement, (iv) to execute on behalf of the Trust any reports, certifications or
other documents required of the Trust pursuant to the Sarbanes-Oxley Act of 2002
and (v) to take such actions and execute all documents and instruments in
connection with the foregoing as may be necessary or desirable.
Section 2.02 Office. The office of the Trust shall be in care of the
Owner Trustee, addressed to Wilmington Trust Company, 1100 North Market Street,
Wilmington, Delaware 19890-0001, Attn: Corporate Trust Administration, or at
such other address as the Owner Trustee may designate by notice to the
Depositor.
Section 2.03 Purposes and Powers. The purpose of the Trust is to,
and the Trust shall have the power and authority to, engage in the following
activities:
(i) to issue and sell from time to time the Notes pursuant to the
Indenture and supplements thereto, and the Trust Certificate,
substantially in the form of Exhibit A hereof, pursuant to this Agreement;
(ii) to borrow funds from time to time subject to the conditions for
such borrowings set forth in the Indenture;
(iii) with the proceeds of the sale of the Notes, to purchase from
time to time pools of the Trust Student Loans to be pledged as collateral
for the Notes, to fund certain accounts for the benefit of the
Noteholders, to pay the organizational and transactional expenses of the
Trust and to pay the balances owed to the Depositor for the purchases made
pursuant to the Master Terms Sale Agreement, provided, however, the Trust
shall not purchase Trust Student Loans more frequently than once a month;
(iv) to enter into derivative product agreements;
(v) to assign, grant, transfer, pledge, mortgage and convey the
Trust Estate pursuant to the Indenture;
(vi) to enter into and perform its obligations under the Basic
Documents to which it is to be a party;
(vii) to engage in those activities, including entering into
agreements, that are necessary, suitable or convenient to accomplish the
foregoing or are incidental thereto or connected therewith; and
(viii) subject to compliance with the Basic Documents, to engage in
such other activities as may be required in connection with conservation
of the Trust Estate and the making of distributions to the Noteholders.
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The Trust shall not engage in any activity other than in connection
with the foregoing or other than as required or authorized by the terms of this
Agreement or the other Basic Documents.
Section 2.04 Appointment of the Owner Trustee. The Depositor hereby
confirms the appointment of the Owner Trustee as trustee of the Trust effective
as of the date hereof, to have all the rights, powers and duties set forth
herein. The Owner Trustee acknowledges receipt in trust from the Depositor as of
the date of the Original Trust Agreement, of the sum of one dollar, which
constituted the initial Trust Estate.
Section 2.05 Declaration of Trust. The Owner Trustee hereby declares
that it will hold the Trust Estate in trust upon and subject to the conditions
set forth herein for the use and benefit of the Owners, subject to the
obligations of the Owner Trustee under the Basic Documents. It is the intention
of the parties hereto that the Trust constitute a statutory trust under Chapter
38 of Title 12 of the Delaware Code (the "Statutory Trust Act") and that this
Agreement constitute the governing instrument of the Trust. Pursuant to Section
3810 of the Statutory Trust Act, the Owner Trustee filed a certificate of trust
with the Delaware Secretary of State on the date of the Original Trust Agreement
in order to form the Trust.
Section 2.06 Situs of Trust. The Trust will be located and
administered in the State of Delaware. All bank accounts maintained by the Owner
Trustee on behalf of the Trust shall be located in the State of Delaware. The
Trust shall not have any employees in any state other than in the State of
Delaware. The Trust's only office is and will be at the office of the Owner
Trustee as set forth herein.
ARTICLE III
TRUST CERTIFICATES AND TRANSFER OF INTEREST
Section 3.01 Issuance of Trust Certificate. (a) As of the date of
the Original Trust Agreement, the Owner Trustee has issued and delivered to the
Depositor a Trust Certificate in the name of the Depositor evidencing 100% of
the beneficial interest in the Trust.
(b) Each Trust Certificate shall be executed by manual signature on
behalf of the Owner Trustee by one of its Authorized Officers. Trust
Certificates bearing the manual signature of an individual who was, at the time
when such signature was affixed, authorized to sign on behalf of the Owner
Trustee shall bind the Trust, notwithstanding that such individual has ceased to
be so authorized prior to the delivery of such Trust Certificate or does not
hold such office at the date of such Trust Certificate. Each Trust Certificate
shall be dated the date of its issuance.
Section 3.02 Registration and Transfer of Certificates. (a) The
Owner Trustee shall maintain at its office referred to in Section 2.02 hereof,
or at the office of any agent appointed by it and approved in writing by the
Owners at the time of such appointment, a register for the registration and
transfer of Trust Certificates. No transfer of a beneficial interest in the
Trust shall be made unless such transfer is made pursuant to an effective
registration statement
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under the 1933 Act and state securities laws, or is exempt from the registration
requirements under the 1933 Act and state securities laws.
(b) The registered Owner of any Trust Certificate may transfer all
or any portion of the beneficial interest in the Trust evidenced by such Trust
Certificate upon surrender thereof to the Owner Trustee accompanied by the
documents required by Section 3.04 and Section 3.06 hereof. Such transfer may be
made by the registered Owner in person or by his attorney duly authorized in
writing upon surrender of the Trust Certificate to the Owner Trustee accompanied
by a written instrument of transfer and with such signature guarantees and
evidence of authority of the Persons signing the instrument of transfer as the
Owner Trustee may reasonably require. Promptly upon the receipt of such
documents and receipt by the Owner Trustee of the transferor's Trust
Certificate, the Owner Trustee shall record the name of such transferee as an
Owner and its Ownership Percentage in the Trust Certificate register and issue,
execute and deliver to such Owner a Trust Certificate evidencing such Ownership
Percentage. In the event a transferor transfers only a portion of its beneficial
interest in the Trust, the Owner Trustee shall register and issue, to such
transferor a new Trust Certificate evidencing such transferor's new Ownership
Percentage. Subsequent to a transfer and upon the issuance of the new Trust
Certificate or Trust Certificates, the Owner Trustee shall cancel and destroy
the Trust Certificate surrendered to it in connection with such transfer. The
Owner Trustee may treat the Person in whose name any Trust Certificate is
registered as the sole Owner of the beneficial interest in the Trust evidenced
by such Trust Certificate.
(c) As a condition precedent to any registration of transfer, the
Owner Trustee may require the payment of a sum sufficient to cover the payment
of any tax or taxes or other governmental charges required to be paid in
connection with such transfer.
Section 3.03 Lost, Stolen, Mutilated or Destroyed Certificates. If
(i) any mutilated Trust Certificate is surrendered to the Owner Trustee, or (ii)
the Owner Trustee receives evidence to its satisfaction that any Trust
Certificate has been destroyed, lost or stolen, and upon proof of ownership
satisfactory to the Owner Trustee together with such security or indemnity as
may be requested by the Owner Trustee to save it harmless, the Owner Trustee
shall execute and deliver a new Trust Certificate for the same Ownership
Percentage as the Trust Certificate so mutilated, destroyed, lost or stolen, of
like tenor and bearing a different issue number, with such notations, if any, as
the Owner Trustee shall determine.
Section 3.04 Limitation on Transfer of Ownership Rights. No transfer
of a beneficial interest in the Trust represented by a Trust Certificate shall
be made to any Person unless (i) such Person delivers to the Owner Trustee an
accession agreement substantially in the form of Exhibit B hereof, (ii) such
Person has a net worth as shown by its most recent audited financial statements
of not less than the product of $10,000,000 and such Person's Ownership
Percentage after the proposed transfer and (iii) the Owner Trustee shall have
received a written opinion of counsel in form and substance satisfactory to the
Owner Trustee stating that such transfer is exempt from the 1933 Act and any
applicable state securities law. Further, no transfer of a beneficial interest
in the Trust represented by a Trust Certificate or any rights or benefits with
respect thereto (including the right to receive distributions) shall be
permitted unless Owner Trustee shall have received an opinion of counsel, to the
effect that such transfer will not cause the Issuer to be treated for U.S.
federal income tax purposes as an association (or publicly-traded
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partnership) taxable as a corporation, and will not adversely affect the federal
income tax treatment of the Noteholders in any material respect.
Section 3.05 Assignment of Right to Distributions. An Owner may
assign all or any part of its right to receive distributions hereunder, but such
assignment (in the absence of a permitted transfer) shall effect no change in
the ownership of the Trust.
Section 3.06 Transfer. Notwithstanding anything to the contrary
herein, no transfer of a beneficial interest in the Trust represented by a Trust
Certificate or any rights or benefits with respect thereto (including the right
to receive distributions) shall be permitted unless the Owner Trustee shall have
received an opinion of counsel, at the expense of the transferring Owner, to the
effect that such transfer will not cause the Trust to be treated for U.S.
federal income tax purposes as an association (or publicly-traded partnership)
taxable as a corporation, and will not materially affect the federal income tax
treatment of the Noteholders.
The Trust Certificates and any beneficial interest in such Trust
Certificates may not be acquired by or with the assets of (a) employee benefit
plans, retirement arrangements, individual retirement accounts or Keogh plans
subject to either Title I of the Employee Retirement Income Security Act of
1974, as amended, or Section 4975 of the Internal Revenue Code of 1986, as
amended, or (b) entities (including insurance company general accounts) whose
underlying assets include plan assets by reason of the investment by any such
plans, arrangements or accounts in such entities (a "Benefit Plan Investor").
Each transferee of a Trust Certificate shall be required to represent (a) that
it is not a Benefit Plan Investor and is not acquiring such Trust Certificate
with the assets of a Benefit Plan Investor and (b) that if such Trust
Certificate is subsequently deemed to be a plan asset it will dispose of such
Trust Certificate. Each Trust Certificate shall bear a legend referring to the
restrictions contained in this paragraph.
Section 3.07 Federal Income Tax Allocations. In the event a Trust
Certificate is transferred in compliance with Section 3.06, net income of the
Trust for any Interest Period as determined for U.S. federal income tax purposes
(and each item of income, gain, loss and deduction entering into the computation
thereof) shall be allocated to the Owners, pro rata based upon their Ownership
Percentage.
ARTICLE IV
CONCERNING THE OWNERS
Section 4.01 Action by Owners with Respect to Certain Matters. With
respect to the following matters, the Owner Trustee shall not have the power to
take any action without the prior written consent of the Owners:
(a) the initiation of any material claim or lawsuit by the Trust
(except claims or lawsuits brought in connection with the collection of the
Trust Student Loans) and the compromise of any material action, claim or lawsuit
brought by or against the Trust (except with respect to the aforementioned
claims or lawsuits for collection of Trust Student Loans);
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(b) the election by the Trust to file an amendment to the Trust
Certificate;
(c) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is required;
(d) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is not required and such
amendment materially adversely affects the interests of the Noteholders;
(e) the amendment, change or modification of the Administration
Agreement, except to cure any ambiguity or to amend or supplement any provision
in a manner or add any provision that would not materially adversely affect the
interests of the Noteholders;
(f) the appointment pursuant to the Indenture of a successor to the
Indenture Trustee or the Indenture Administrator, or the consent to the
assignment by the Indenture Trustee or the Indenture Administrator of their
obligations under the Indenture;
(g) the consent to the calling or waiver of any default under any
Basic Documents;
(h) the consent to the assignment by the Indenture Trustee, the
Indenture Administrator or the Servicer of their respective obligations under
any Basic Documents;
(i) except as provided in Article IX hereof, dissolve, terminate or
liquidate the Trust in whole or in part;
(j) merge or consolidate the Trust with or into any other entity, or
convey or transfer all or substantially all of the Trust's assets to any other
entity;
(k) cause the Trust to incur, assume or guaranty any indebtedness
other than as set forth in this Agreement or the other Basic Documents;
(l) do any act that conflicts with any other Basic Documents;
(m) do any act which would make it impossible to carry on the
ordinary business of the Trust as described in Section 2.03 hereof;
(n) confess a judgment against the Trust;
(o) possess Trust assets, or assign the Trust's right to property,
for other than a Trust purpose;
(p) cause the Trust to lend any funds to any entity; or
(q) change the Trust's purpose and powers from those set forth in
this Agreement.
Section 4.02 Tax Treatment, Tax Elections and Other Tax Matters. It
is the intention of the parties hereto that the Trust shall be classified for
U.S. federal income tax
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purposes as a grantor trust or an entity disregarded from its owner, and not be
treated as an association (or publicly-traded partnership) taxable as a
corporation. Neither the Depositor, the Trust, nor the Owner Trustee shall cause
the Trust to be treated as an association taxable as a corporation for U.S.
federal income tax purposes. It is the intention of the parties hereto that the
Trust shall be treated as a mere security arrangement, or failing such
treatment, a grantor trust or a disregarded entity for U.S. federal income tax
purposes. All provisions of this Agreement shall be construed and the affairs of
the Trust shall be conducted to achieve the aforementioned treatment for U.S.
federal income tax purposes, and the Noteholders shall agree that all
transactions contemplated by this Agreement will be reported on all applicable
tax returns consistently with the aforementioned treatment.
Section 4.03 Representations and Warranties of the Depositor. The
Depositor hereby represents and warrants to the Owner Trustee as follows:
(a) Upon the receipt of the Trust Estate by the Owner Trustee under
this Agreement, the Trust will have good title to the Trust Estate free and
clear of any lien.
(b) The Trust is not, and will not be upon conveyance of the Trust
Estate to the Owner Trustee, an "Investment Company" or under the "control" of
an "Investment Company," as such terms are defined in the Investment Company Act
of 1940, as amended.
(c) This Agreement has been duly and validly authorized, executed
and delivered by, and constitutes a valid and binding agreement of, the
Depositor, enforceable in accordance with its terms.
ARTICLE V
INVESTMENT AND APPLICATION OF TRUST FUNDS
Section 5.01 Investment of Trust Funds. Unless otherwise directed in
writing by the Owners, income with respect to and proceeds of the Trust Estate
which are received by the Owner Trustee more than one day prior to a
distribution date shall be invested and reinvested by the Owner Trustee in
accordance with the written direction of the Depositor. All such investments
shall have a maturity date no later than the Business Day preceding the next
distribution date unless they are redeemable at the option of the Owner Trustee
prior to maturity. Interest earned from such investment and reinvestment shall
be credited to the Trust Estate.
Section 5.02 Application of Funds. (a) Income with respect to and
proceeds of Trust Estate held by the Owner Trustee on a Distribution Date shall
be applied by the Owner Trustee on such distribution date in the following
order:
(i) first, pay any amounts due to the Owner Trustee under this
Agreement;
(ii) second, to pay any amounts then due to any Person under the
Basic Document; and
(iii) third, to pay any other expenses of the Trust.
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(b) Income and proceeds with respect to the Trust Estate held by the
Owner Trustee on a Distribution Date after the application of funds pursuant to
Section 5.02(a) shall be distributed on such Distribution Date to the Owners, in
proportion to their respective Ownership Percentages, determined as of the close
of business on the Business Day immediately preceding such distribution date.
All payments to be made under this Agreement by the Owner Trustee shall be made
only from the income and proceeds of the Trust Estate and only to the extent
that the Owner Trustee has received such income or proceeds.
(c) With each distribution to an Owner pursuant to Section 5.02(b)
above, the Owner Trustee shall deliver a distribution date statement setting
forth, for the period since the preceding distribution date:
(i) income and proceeds received by the Owner Trustee with respect
to the Trust Estate;
(ii) amounts paid to the Owner Trustee;
(iii) amounts paid by the Owner Trustee to any Person pursuant to
the Basic Documents; and
(iv) amounts paid for other expenses of the Trust.
(d) In the event that any tax is imposed on the Trust, such tax
shall be charged against amounts otherwise distributable to the Owners on a pro
rata basis. The Owner Trustee is hereby authorized to retain from amounts
otherwise distributable to the Owners sufficient funds to pay or provide for the
payment of, and to actually pay, such tax as is legally owed by the Trust (but
such authorization shall not prevent the Owner Trustee from contesting any such
tax in appropriate proceedings, and withholding payment of such tax, if
permitted by law, pending the outcome of such proceedings).
Section 5.03 Method of Payment. All amounts payable to the Owners
pursuant to this Agreement shall be paid by the Owner Trustee to such Owner or a
nominee therefor by check payable to such Owner, mailed first class to the
address of such Owner appearing on the register maintained pursuant to Section
3.02 hereof, or by crediting the amount to be distributed to such Owner to an
account maintained with the Owner Trustee or by transferring such amount by wire
transfer in immediately available funds to a banking institution with bank wire
transfer facilities for the account of such Owner, as instructed in writing from
time to time by such Owner. The Owner Trustee may require an Owner to pay any
wire transfer fees incurred in connection with any wire transfer made to such
Owner.
Section 5.04 No Segregation of Moneys; No Interest. Subject to
Section 5.01, moneys received by the Owner Trustee hereunder need not be
segregated in any manner except to the extend required by law and may be
deposited under such general conditions as may be prescribed by law, and the
Owner Trustee shall not be liable for any interest thereon.
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ARTICLE VI
AUTHORITY AND DUTIES OF THE TRUSTEE
Section 6.01 General Authority. The Owner Trustee is authorized to
take all actions required or permitted to be taken by it pursuant to the terms
of this Agreement and the Basic Documents.
Section 6.02 Specific Authority. The Owner Trustee is hereby
authorized and directed to execute and deliver the Basic Documents and each
certificate or other document attached as an exhibit to or contemplated by the
Basic Documents.
Section 6.03 General Duties. It shall be the duty of the Owner
Trustee to discharge (or cause to be discharged) all of its responsibilities
pursuant to the terms of this Agreement and to administer the Trust in the
interest of the Owners.
Section 6.04 Accounting and Reports to the Owners, the Internal
Revenue Service and Others. The Administrator shall (i) maintain or cause to be
maintained the books of the Trust on a calendar year basis on the accrual method
of accounting, (ii) deliver to each Owner, within 60 days of the end of each
Fiscal Year, or more often, as may be required by the Code and the regulations
thereunder, a copy of the annual financial statement of the Trust for such
Fiscal Year and a statement in such form and containing such information as may
be required by such regulations, and as is necessary and appropriate to enable
each Owner to prepare its federal and state income tax returns, (iii) prepare
(or cause to be prepared), and shall be solely responsible for the preparation
of, all federal, state and local tax and information returns and reports
required to be filed by or in respect of the Trust, (iv) sign such returns, or
any other information, statements or schedules in the manner required by law,
(v) file, on a timely basis, such returns and such of the above information, or
any other information, statements or schedules, as may be required under
applicable tax laws, and (vi) cause to be mailed to each Owner copies of all
such reports and tax returns of the Trust.
Section 6.05 Signature of Returns. The Administrator shall sign on
behalf of the Trust the tax returns and other Periodic Filings of the Trust,
unless applicable law requires an Owner to sign such documents, in which case,
so long as the Depositor is an Owner and applicable law allows the Depositor to
sign any such document, the Depositor shall sign such document. At any time that
the Depositor is not an Owner, or is otherwise not allowed by law to sign any
such document, then the Owner required by law to sign such document shall sign.
Section 6.06 Right to Receive Instructions. In the event that the
Owner Trustee is unable to decide between alternative courses of action, or is
unsure as to the application of any provision of this Agreement or any Basic
Document, or such provision is ambiguous as to its application, or is, or
appears to be, in conflict with any other applicable provision, or in the event
that this Agreement or any Basic Document permits any determination by the Owner
Trustee or is silent or is incomplete as to the course of action which the Owner
Trustee is required to take with respect to a particular set of facts, the Owner
Trustee may give notice (in such form as shall be appropriate under the
circumstances) to the Depositor requesting instructions and, to the extent that
the Owner Trustee shall have acted or refrained from acting in good faith in
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accordance with any instructions received from the Owners, the Owner Trustee
shall not be liable on account of such action or inaction to any Person. If the
Owner Trustee shall not have received appropriate instructions within ten days
of such notice (or within such shorter period of time as may be specified in
such notice) the Owner Trustee may, but shall be under no duty to, take or
refrain from taking such action, not inconsistent with this Agreement or the
Basic Documents, as the Owner Trustee shall deem to be in the best interests of
the Owners, and the Owner Trustee shall have no liability to any Person for such
action or inaction.
Section 6.07 No Duties Except as Specified in this Agreement or in
Instructions. The Owner Trustee shall not have any duty or obligation to manage,
make any payment in respect of, register, record, sell, dispose of or otherwise
deal with the Trust Estate, prepare or file any tax, qualification to do
business or securities law filings or reports or to otherwise take or refrain
from taking any action under, or in connection with, any document contemplated
hereby to which the Owner Trustee is a party, except as expressly provided by
the terms of this Agreement and no implied duties or obligations shall be read
into this Agreement against the Owner Trustee. The Owner Trustee nevertheless
agrees that it will, at its own cost and expense, promptly take all action as
may be necessary to discharge any liens on any part of the Trust Estate which
result from claims against the Owner Trustee personally that are not related to
the ownership or the administration of the Trust Estate or the transactions
contemplated by the Basic Documents.
Section 6.08 No Action Except Under Specified Documents or
Instructions. The Owner Trustee shall not manage, control, use, sell, dispose of
or otherwise deal with any part of the Trust Estate except (i) in accordance
with the powers granted to and the authority conferred upon the Owner Trustee
pursuant to this Agreement, and (ii) in accordance with instructions delivered
to the Owner Trustee pursuant to Section 6.06 hereof.
Section 6.09 Sarbanes-Oxley Filings. Notwithstanding any Person's
right to instruct the Owner Trustee, neither the Owner Trustee nor any agent,
employee, director or officer of the Owner Trustee shall have any obligation to
execute any certificates or other documents required pursuant to the
Sarbanes-Oxley Act of 2002 or the rules and regulations promulgated thereunder,
and the refusal to comply with any such instructions shall not constitute a
default or breach of any Basic Document.
ARTICLE VII
CONCERNING THE TRUSTEE
Section 7.01 Acceptance of Trusts and Duties. The Owner Trustee
accepts the trusts hereby created and agrees to perform its duties hereunder
with respect to the same but only upon the terms of this Agreement. The Owner
Trustee shall not be personally liable under any circumstances, except (i) for
its own willful misconduct or gross negligence, (ii) for liabilities arising
from the failure by the Owner Trustee to perform obligations expressly
undertaken by it in the last sentence of Section 6.07 hereof, or (iii) for
taxes, fees or other charges on, based on or measured by any fees, commissions
or compensation received by the Owner Trustee in connection with any of the
transactions contemplated by this Agreement or the Basic Documents. In
particular, but not by way of limitation:
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(a) The Owner Trustee shall not be personally liable for any error
of judgment made in good faith by an Authorized Officer of the Owner Trustee;
(b) The Owner Trustee shall not be personally liable with respect to
any action taken or omitted to be taken by the Owner Trustee in good faith in
accordance with the instructions of the Owner;
(c) No provision of this Agreement shall require the Owner Trustee
to expend or risk its personal funds or otherwise incur any financial liability
in the performance of any of its rights or powers hereunder, if the Owner
Trustee shall have reasonable grounds for believing that repayment of such funds
or adequate indemnity against such risk or liability is not reasonably assured
or provided to it;
(d) Under no circumstance shall the Owner Trustee be personally
liable for any indebtedness of the Trust under any Basic Document; and
(e) The Owner Trustee shall not be personally responsible for or in
respect of the validity or sufficiency of this Agreement or for the due
execution hereof by the Depositor, or for the form, character, genuineness,
sufficiency, value or validity of any Collateral or the Trust Estate, or for or
in respect of the validity or sufficiency of the Basic Documents.
Section 7.02 Furnishing of Documents. The Owner Trustee shall
furnish to the Owners, promptly upon receipt thereof, duplicates or copies of
all material reports, notices, requests, demands, certificates, financial
statements and any other instruments furnished to the Owner Trustee hereunder
(other than documents originated by or otherwise furnished to the Owners).
Section 7.03 Reliance; Advice of Counsel. (a) The Owner Trustee
shall incur no liability to anyone in acting upon any signature, instrument,
notice, resolution, request, consent, order, certificate, report, opinion, bond
or other document or paper believed by it to be genuine and believed by it to be
signed by the proper party or parties. The Owner Trustee may accept a certified
copy of a resolution of the board of directors or other governing body of any
corporate party as conclusive evidence that such resolution has been duly
adopted by such body and that the same is in full force and effect. As to any
fact or matter the manner of ascertainment of which is not specifically
prescribed herein, the Owner Trustee may for all purposes hereof rely on a
certificate, signed by the president or any vice president or by the treasurer
or any assistant treasurer or the secretary or any assistant secretary of the
relevant party, as to such fact or matter, and such certificate shall constitute
full protection to the Owner Trustee for any action taken or omitted to be taken
by it in good faith in reliance thereon.
(b) In the exercise or administration of the trusts hereunder and in
the performance of its duties and obligations under any of the Basic Documents,
the Owner Trustee (i) may act directly or, at the expense of the Trust, through
agents or attorneys pursuant to agreements entered into with any of them, and
the Owner Trustee shall not be liable for the default or misconduct of such
agents or attorneys if such agents or attorneys shall have been selected by the
Owner Trustee with reasonable care; and (ii) may, at the expense of the Trust,
consult with counsel, accountants and other skilled persons to be selected with
reasonable care
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and employed by it, and the Owner Trustee shall not be liable for anything done,
suffered or omitted in good faith by it in accordance with the advice or opinion
of any such counsel, accountants or other skilled persons.
Section 7.04 Not Acting in Individual Capacity. Except as expressly
provided in this Article VII, in accepting the trusts hereby created the Owner
Trustee acts solely as trustee hereunder and not in its individual capacity, and
all Persons having any claim against the Owner Trustee by reason of the
transactions contemplated by this Agreement or the Basic Documents shall look
only to the Trust Estate for payment or satisfaction thereof.
ARTICLE VIII
COMPENSATION OF TRUSTEE
Section 8.01 Owner Trustee's Fees and Expenses. The Owner Trustee
shall receive compensation from the Owners for its services hereunder as set
forth in a separate fee arrangement with the Owner Trustee and the Depositor, a
copy of which is attached hereto as Exhibit C. The Owner Trustee shall be
entitled to be reimbursed by the Owners for its reasonable expenses hereunder,
including, without limitation, the reasonable compensation, expenses and
disbursements of such agents, representatives, experts and counsel as the Owner
Trustee may employ in connection with the exercise and performance of its rights
and duties under this Agreement and the Basic Documents.
Section 8.02 Indemnification. The Owners shall be jointly and
severally liable for, and hereby agree to indemnify the Owner Trustee and its
successors, assigns, agents and servants (collectively, the "Indemnified
Persons"), from and against, any and all liabilities, obligations, losses,
damages, taxes (other than taxes incurred as the result of the payment of fees
and expenses pursuant to Section 8.01 hereof), claims, actions, suits, costs,
expenses and disbursements (including legal fees and expenses) of any kind and
nature whatsoever (collectively, "Expenses") which may be imposed on, incurred
by or asserted at any time against the Indemnified Persons (whether or not
indemnified against by other parties) in any way relating to or arising out of
this Agreement, any Basic Document, the administration of the Trust Estate or
the action or inaction of the Owner Trustee hereunder, except only that the
Owners shall not be required to indemnify the Owner Trustee for Expenses arising
or resulting from any of the matters described in the second sentence of Section
7.01. To the fullest extent permitted by law, Expenses to be incurred by an
Indemnified Person shall, from time to time, be advanced by, or on behalf of,
the Owners prior to the final disposition of any matter upon receipt by the
Owners of an undertaking by, or on behalf of, such Indemnified Person to repay
such amount if it shall be determined that the Indemnified Person is not
entitled to be indemnified under this Agreement. The obligations of the Owners
pursuant to this Section 8.02 shall be borne (as between the Owners inter se) in
proportion to their respective Ownership Percentages. The indemnities contained
in this Section 8.02 shall survive the resignation or removal of the Owner
Trustee or the termination of this Agreement. The indemnities contained in this
Section 8.02 extend only to the Owner Trustee in its individual capacity and
shall not be construed as indemnities of the Trust Estate.
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Section 8.03 Payments to the Owner Trustee. Any amounts paid to the
Owner Trustee from the Trust Estate pursuant to this Article VIII shall be
deemed not to be part of the Trust Estate immediately after such payment.
ARTICLE IX
TERMINATION OF TRUST
Section 9.01 Termination of Trust. (a) The Trust shall dissolve and
the Trust Estate shall, subject to compliance with Section 3808 of the Statutory
Trust Act, be distributed to the Owners in accordance with their respective
Ownership Percentages upon the sale or other final disposition by the Owner
Trustee of the Trust Estate and the final distribution by the Owner Trustee of
all moneys or other property or proceeds of the Trust Estate in accordance with
the terms of this Agreement and the Basic Documents. Upon the dissolution of the
Trust, after paying or making reasonable provision for the payment of all
liabilities of the Trust in accordance with applicable law, the Owner Trustee
shall file a certificate of cancellation with the Delaware Secretary of State
and, thereupon, the Trust shall terminate and this Agreement (other than Article
VIII) shall be of no further force or effect.
(b) The bankruptcy, death or incapacity of any Owner shall not
operate to terminate this Agreement, nor entitle such Owner's legal
representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of the Trust Estate, nor
otherwise affect the rights, obligations and liabilities of the parties hereto.
Section 9.02 No Termination by Depositor or Owners. Except as
provided in Section 9.01 hereof, neither the Depositor nor the Owners shall be
entitled to terminate or revoke the Trust established hereunder.
ARTICLE X
SUCCESSOR TRUSTEES AND ADDITIONAL TRUSTEES
Section 10.01 Resignation of Owner Trustee; Appointment of
Successor. (a) The Owner Trustee may resign at any time without cause by giving
at least 60 days' prior written notice to the Owners, such resignation to be
effective upon the acceptance of appointment by a successor owner trustee under
Section 10.01(b) below. In addition, the Owners may at any time remove the Owner
Trustee without cause by an instrument in writing delivered to the Owner
Trustee, such removal to be effective upon the acceptance of appointment by a
successor owner trustee under Section 10.01(b) below. In case of the resignation
or removal of the Owner Trustee, the Owners may appoint a successor owner
trustee by an instrument signed by the Owners. If a successor owner trustee
shall not have been appointed within 30 days after the giving of written notice
of such resignation or the delivery of the written instrument with respect to
such removal, the Owner Trustee or the Owners may apply to any court of
competent jurisdiction to appoint a successor owner trustee to act until such
time, if any, as a successor owner trustee shall have been appointed as provided
above. Any successor owner trustee so appointed by such court shall immediately
and without further act be superseded by
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any successor owner trustee appointed as above provided within one year from the
date of the appointment by such court.
(b) Any successor owner trustee, however appointed, shall execute
and deliver to the predecessor Owner Trustee an instrument accepting such
appointment, and thereupon such successor owner trustee, without further act,
shall become vested with all the estates, properties, rights, powers, duties and
trust of the predecessor Owner Trustee in the trusts hereunder with like effect
as if originally named the Owner Trustee herein; but nevertheless, upon the
written request of such successor owner trustee and payment of all amounts due
and owing to it, such predecessor Owner Trustee shall execute and deliver an
instrument transferring to such successor owner trustee, upon the trusts herein
expressed, all the estates, properties, rights, powers, duties and trusts of
such predecessor Owner Trustee, and such predecessor Owner Trustee shall duly
assign, transfer, deliver and pay over to such successor owner trustee all
moneys or other property then held or subsequently received by such predecessor
Owner Trustee upon the trusts herein expressed.
(c) The Owner Trustee shall at all times be a corporation or
association (i) meeting the requirements of Section 3807(a) of the Delaware
Statutory Trust Act; (ii) being subject to supervision or examination by federal
or state authorities; and (iii) having (or having a parent which has) a rating
of at least investment grade by the Rating Agencies. If the Owner Trustee shall
publish reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purpose of this Section, the combined capital and surplus of the Owner Trustee
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. In case at any time the Owner Trustee
shall cease to be eligible in accordance with the provisions of this Section,
the Owner Trustee shall resign immediately in the manner and with the effect
specified in this Section.
(d) Any person into which the Owner Trustee may be merged or
converted or with which it may be consolidated, or any person resulting from any
merger, conversion or consolidation to which the Owner Trustee shall be a party,
or any person to which substantially all the corporate trust business of the
Owner Trustee may be transferred, shall, subject to the terms of Section
10.01(c) hereof, be the Owner Trustee under this Agreement without further act.
Section 10.02 Appointment of Additional Owner Trustees. At any time
or times for the purpose of meeting any legal requirements of any jurisdiction
in which any part of the Trust Estate may at the time be located, the Owner
Trustee, by an instrument in writing, may appoint one or more individuals or
corporations to act as separate trustee or separate trustees of all or any part
of the Trust Estate to the full extent that local law makes it necessary or
appropriate for such separate trustee or separate trustees to act alone.
ARTICLE XI
MISCELLANEOUS
Section 11.01 Supplements and Amendments. (a) Subject to (b) and (c)
below, this Agreement may be amended only by a written instrument signed by the
Owner Trustee and
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all of the Owners at the time of such amendment; provided, however, that if, in
the opinion of the Owner Trustee, any instrument required to be so executed
adversely affects any right, duty or liability of, or immunity or indemnity in
favor of, the Owner Trustee under this Agreement or any of the documents
contemplated hereby to which the Owner Trustee is a party, or would cause or
result in any conflict with or breach of any terms, conditions or provisions of,
or default under, the charter documents or by-laws of the Owner Trustee or any
document contemplated hereby to which the Owner Trustee is a party, the Owner
Trustee may in its sole discretion decline to execute such instrument.
(b) This Agreement may be amended by the Depositor and the Owner
Trustee without the consent of any of the Noteholders or the Owners, to cure any
ambiguity, to correct or supplement any provisions in this Agreement or for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions in this Agreement or modifying in any manner the rights of the
Noteholders or the Owners; provided, however, that such action shall not, as
evidenced by an Opinion of Counsel, adversely affect in any material respect the
interests of any Noteholder or Owners.
(c) This Agreement may also be amended from time to time by the
Depositor and the Owner Trustee (i) with the consent of the Noteholders of Notes
evidencing not less than a majority of the aggregate outstanding principal
balance of the Notes and (ii) with the consent of the Owners of Trust
Certificates evidencing not less than a majority of the aggregate Ownership
Percentage, for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Agreement or of modifying in
any manner the rights of the Noteholders or the Owners; provided, however, that
no such amendment shall (a) increase or reduce in any manner the amount of, or
accelerate or delay the timing of, collections of payments on Trust Student
Loans or distributions that shall be required to be made for the benefit of the
Noteholders or the Owners or (b) reduce the aforesaid percentage of the
aggregate outstanding amount of the Notes and the Ownership Percentage of Trust
Certificates required to consent to any such amendment, without the consent of
all the outstanding Noteholders and Owners.
(d) Promptly after the execution of any such amendment or consent,
the Owner Trustee shall furnish written notification of the substance of such
amendment or consent to each Owner and the Indenture Trustee.
(e) It shall not be necessary for the consent of the Owners or the
Noteholders, as the case may be, pursuant to this Section to approve the
particular form of any proposed amendment or consent, but it shall be sufficient
if such consent shall approve the substance thereof. The manner of obtaining
such consents (and any other consents of Owners provided for in this Agreement
or in any other Basic Document) and of evidencing the authorization of the
execution thereof by Owners shall be subject to such reasonable requirements as
the Owner Trustee may prescribe.
(f) Prior to the execution of any amendment to this Agreement, the
Owner Trustee shall be entitled to receive and rely upon an opinion of counsel
stating that the execution of such amendment is authorized or permitted by this
Agreement. The Owner Trustee may, but shall not be obligated to, enter into any
such amendment which affects the Owner Trustee's own rights, duties or
immunities under this Agreement or otherwise.
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(g) As a condition to entering into any amendment or supplement of
this Agreement pursuant to this Section 11.01, the Owner Trustee shall have
received an opinion of counsel to the effect that such amendment or supplement
will not cause the Trust to be treated for U.S. federal income tax purposes as
an association (or publicly-traded partnership) taxable as a corporation, and
will not adversely affect the federal income tax treatment of the Noteholders in
any material respect.
Section 11.02 No Legal Title to Trust Estate in Owner. The Owners
shall not have legal title to any part of the Trust Estate and shall only have
an undivided beneficial interest therein. No transfer, by operation of law or
otherwise, of any right, title and interest of the Owners in and to their
undivided beneficial interest in the Trust Estate hereunder shall operate to
terminate this Agreement or the trusts hereunder or entitle any successor
transferee to an accounting or to the transfer to it of legal title to any part
of the Trust Estate.
Section 11.03 Pledge of Collateral by Owner Trustee is Binding. The
pledge of any Trust Estate to any Person by the Owner Trustee made under any
Basic Document and pursuant to the terms of this Agreement shall bind the Owners
and shall be effective to transfer or convey the rights of the Owner Trustee and
the Owners in and to such Trust Estate to the extent set forth in such Basic
Document. No purchaser or other grantee shall be required to inquire as to the
authorization, necessity, expediency or regularity of such pledge or as to the
application of any proceeds with respect thereto by the Owner Trustee.
Section 11.04 Limitations on Rights of Others. Nothing in this
Agreement, whether express or implied, shall be construed to give to any Person
other than the Owner Trustee and the Owners any legal or equitable right, remedy
or claim in the Trust Estate or under or in respect of this Agreement or any
covenants, conditions or provisions contained herein.
Section 11.05 Notices. Unless otherwise expressly specified or
permitted by the terms hereof, all notices shall be in writing and delivered by
hand or mailed by certified mail, postage prepaid, if to the Owner Trustee,
addressed to Wilmington Trust Company, 1100 North Market Street, Wilmington,
Delaware 19890-0001, Attn: Corporate Trust Administration, or to such other
address as the Owner Trustee may have set forth in a written notice to the
Owners; and if to an Owner, addressed to it at the address set forth for such
Owner in the register maintained by the Owner Trustee. Whenever any notice in
writing is required to be given by the Owner Trustee hereunder, such notice
shall be deemed given and such requirement satisfied 72 hours after such notice
is mailed by certified mail, postage prepaid, addressed as provided above; any
notice given by an Owner to the Owner Trustee shall be effective upon receipt by
an Authorized Officer of the Owner Trustee.
Section 11.06 Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
-16-
Section 11.07 Separate Counterparts. This Agreement may be executed
by the parties hereto in separate counterparts, each of which when so executed
and delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
Section 11.08 Successors and Assigns. All covenants and agreements
contained herein shall be binding upon, and inure to the benefit of, the Owner
Trustee and its successors and assigns and each Owner and its successors and
permitted assigns, all as herein provided. Any request, notice, direction,
consent, waiver or other instrument or action by an Owner shall bind the
successors and assigns of such Owner.
Section 11.09 Headings. The headings of the various Articles and
Sections herein are for convenience of reference only and shall not define or
limit any of the terms or provisions hereof.
Section 11.10 Governing Law. This Agreement shall in all respects be
governed by, and construed in accordance with, the laws of the State of Delaware
(excluding conflict of law rules), including all matters of construction,
validity and performance. Sections 3540 and 3561 of Title 12 of the Delaware
Code shall not apply to the Trust.
Section 11.11 No Petition. The Depositor will not, prior to the date
which is one year and one day after the termination of the Indenture, institute
against the Trust any bankruptcy proceedings under any U.S. federal or state
bankruptcy or similar law in connection with any obligations relating to the
Trust Certificates, the Notes, this Agreement or any of the other Basic
Documents.
Section 11.12 Non-Confidential. Notwithstanding anything to the
contrary contained in this Agreement, all persons may disclose to any and all
persons, without limitation of any kind, the U.S. federal, state and local tax
treatment of the Trust Certificates, the Notes and the Trust, any fact that may
be relevant to understanding the U.S. federal, state and local tax treatment of
the Trust Certificates, the Notes and the Trust, and all materials of any kind
(including opinions or other tax analyses) relating to such U.S. federal, state
and local tax treatment and that may be relevant to understanding such U.S.
federal, state and local tax treatment, other than the name of the parties or
any other person named herein, or information that would permit identification
of the parties or such other persons, and any pricing terms or other nonpublic
business or financial information that is unrelated to the U.S. federal, state
and local tax treatment of the Trust Certificates, the Notes and the Trust to
the taxpayer and is not relevant to understanding the U.S. federal, state and
local tax treatment of the Trust Certificates, the Notes and the Trust to the
taxpayer.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have caused this Trust
Agreement to be duly executed by their respective officers hereunto duly
authorized, as of the day and year first above written.
SLC STUDENT LOANS RECEIVABLES I,
INC., as Depositor
By /s/ Bradley Svalberg
------------------------------------
Name: Bradley Svalberg
Title: Treasurer
WILMINGTON TRUST COMPANY,
as Owner Trustee
By:/s/ Janel R. Havrilla
------------------------------------
Name: Janel R. Havrilla
Title: Financial Services Officer
EXHIBIT A
FORM OF TRUST CERTIFICATE
THE BENEFICIAL INTEREST IN THE TRUST REPRESENTED BY THIS TRUST
CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "ACT"), OR ANY STATE SECURITIES LAW, AND MAY NOT BE DIRECTLY OR INDIRECTLY
OFFERED OR SOLD OR OTHERWISE DISPOSED OF (INCLUDING PLEDGED) BY THE HOLDER
HEREOF UNLESS IN THE OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE, SUCH
TRANSACTION IS EXEMPT FROM REGISTRATION UNDER THE ACT AND STATE SECURITIES LAWS.
THE TRANSFER OF THIS TRUST CERTIFICATE WILL NOT BE EFFECTIVE UNLESS THE
TRANSFEREE HAS DELIVERED TO THE TRUSTEE A LETTER IN THE FORM REQUIRED BY SECTION
3.04 OF THE TRUST AGREEMENT AND THE TRANSFEREE PROVIDES THE TRUSTEE WITH
EVIDENCE SATISFACTORY TO THE TRUSTEE DEMONSTRATING THE TRANSFEREE'S COMPLIANCE
WITH THE NET WORTH REQUIREMENTS OF SECTION 3.04 OF THE TRUST AGREEMENT.
TRUST CERTIFICATE
OF SLC STUDENT LOAN TRUST 2005-1
Certificate No.[__]
This certifies that [_________] is the owner of a [__]% undivided
beneficial interest in the assets of SLC Student Loan Trust 2005-1, a Delaware
statutory trust (the "Trust"), existing pursuant to an amended and restated
trust agreement, dated as of June 15, 2005 (the "Trust Agreement"), between
Wilmington Trust Company, as trustee (the "Trustee"), and SLC Student Loan
Receivables I, Inc. (the "Depositor"). This Trust Certificate is issued pursuant
to and is entitled to the benefits of the Trust Agreement, and each Owner by
acceptance hereof shall be bound by the terms of the Trust Agreement. Reference
is hereby made to the Trust Agreement for a statement of the rights and
obligations of the Owner hereof. The Trustee may treat the person shown on the
register maintained by the Trustee pursuant to Section 3.02 of the Trust
Agreement as the absolute Owner hereof for all purposes.
Capitalized terms used herein without definition have the meanings
ascribed to them in or by reference in the Trust Agreement.
Transfer of this Trust Certificate is subject to certain restriction
and limitations set forth in the Trust Agreement. In the manner more fully set
forth in, and as limited by, the Trust Agreement, this Trust Certificate may be
transferred upon the books of the Trust by the registered Owner in person or by
his attorney duly authorized in writing upon surrender of this Trust Certificate
to the Trustee accompanied by a written instrument of transfer and with such
signature guarantees and evidence of authority of the Persons signing the
instrument of transfer as the Trustee may reasonably require, whereupon the
Trust shall issue in the name of the
A-1
transferee a Trust Certificate or Trust Certificates evidencing the amount and
extent of interest of the transferee.
The Owner hereof, by its acceptance of this Trust Certificate,
warrants and represents to the Trustee and to the Owners of the other Trust
Certificates issued under the Trust Agreement and agrees [(a) that it is jointly
and severally liable for all fees, expenses, taxes, indemnity payments and other
charges of the Trust pursuant to the Trust Agreement, (b)] not to transfer this
Trust Certificate except in accordance with the Trust Agreement and (c) that is
bound by the terms of the Trust Agreement, including, without limitation,
Sections 8.01 and 8.02 thereof.
This Trust Certificate and the Trust Agreement shall in all respects
be governed by, and construed in accordance with, the laws of the State of
Delaware (excluding conflict of law rules).
A-2
IN WITNESS WHEREOF, the Trust, pursuant to the Trust Agreement, has
caused this Trust Certificate to be issued as of the date hereof.
SLC STUDENT LOAN TRUST 2005-1
By: Wilmington Trust Company,
not in its individual capacity but
solely as Trustee
By
---------------------------------
Name
-----------------------------
Title
----------------------------
A-3
EXHIBIT B
FORM OF ACCESSION AGREEMENT
_______________, 20__
Wilmington Trust Company
[Address]
Dear Sirs:
We refer to the Amended and Restated Trust Agreement, dated as of
June 15, 2005 (the "Trust Agreement"), between SLC Student Loan Receivables I,
Inc. (the "Company"), and Wilmington Trust Company, a Delaware banking
corporation (in its capacity as trustee thereunder, the "Trustee"). We propose
to purchase a beneficial interest in SLC Student Loan Trust 2005-1, a Delaware
statutory trust (the "Trust") formed pursuant to the Trust Agreement.
Capitalized terms used herein without definition have the meanings given them in
the Trust Agreement.
1. We hereby confirm that at the date hereof our net worth exceeds the
minimums set forth in Section 3.04 of the Trust Agreement.
2. [We hereby further agree, as provided and to the extent specified in the
Trust Agreement, to be jointly and severally liable with any other holders
of trust certificates with respect to the Trust for all fees, expenses,
taxes, indemnity payments and other liabilities of the Trust in accordance
with the terms of the Trust Agreement, including, pursuant to Sections
8.01 and 8.02 thereof, those incurred by Wilmington Trust Company in its
capacity as Trustee in the administration of the Trust thereunder, to the
extent such fees, expenses, taxes, indemnity payments and other
liabilities of the Trust or the Trustee, as the case may be, with respect
to the Trust, are not paid out of the Trust Estate; provided, however,
that we will be liable only for obligations of the Trust arising on and
after the date hereof.]
3. We understand that our Trust Certificate is not being registered under the
Securities Act of 1933, as amended (the "1933 Act"), or any state
securities or "Blue Sky" law and is being sold to us in a transaction that
is exempt from the registration requirements of the 1933 Act and any
applicable state laws.
4. We have knowledge and experience in financial and business matters as to
be capable of evaluating the merits and risks of an investment in the
Trust, we are able to bear the economic risk of investment in the Trust
and we are an accredited investor as defined in Regulation D under the
1933 Act.
B-1
5. We are acquiring our Trust Certificate for our own account and not for the
benefit of any other person and not with a view to any distribution of our
beneficial interest in the Trust subject, nevertheless, to the
understanding that disposition of our property shall at all times be and
remain within our control.
6. We agree that our beneficial interest in the Trust must be held
indefinitely by us unless subsequently registered under the 1933 Act and
any applicable state securities or "Blue Sky" law or unless exemptions
from the registration requirements of the 1933 Act and applicable state
laws are available.
7. We agree that in the event that at some future time we wish to dispose of
or exchange any of our beneficial interest in the Trust, we will not
transfer or exchange any of our beneficial interest in the Trust unless:
(A) (1) if such transfer or exchange is a sale, the sale price is at
least $250,000, (2) the transfer or exchange is made to an Eligible Purchaser
(as defined below), (3) a letter to substantially the same effect as this letter
is executed promptly by such Eligible Purchaser or by an Eligible Dealer (as
defined below) on behalf of such Eligible Purchaser (4) all offers or
solicitations in connection with the sale (if a sale), whether made directly or
through any agent acting on our behalf, are limited only to Eligible Purchasers
and are not made by means of any form of general solicitation or general
advertising whatsoever and (5) the Trustee has received an opinion of counsel to
the effect that such transfer will not cause the Trust to be treated for U.S.
federal income tax purposes as an association (or publicly-traded partnership)
taxable as a corporation, and will not adversely affect the federal income tax
treatment of the Noteholders in any material respect; or
(B) our beneficial interest in the Trust is sold in a transaction
that does not require registration under the 1933 Act and any applicable State
"Blue Sky" law.
"Eligible Purchaser" means an Eligible Dealer or a corporation,
partnership or other entity which we have reasonable grounds to believe and do
believe can make representations with respect to itself to substantially the
same effect as the representations set forth herein.
"Eligible Dealer" means any corporation or other entity having as a
principal business acting as a broker or dealer in securities.
8. We understand that our Trust Certificate bears a legend to substantially
the following effect:
THE BENEFICIAL INTEREST IN THE TRUST REPRESENTED BY THIS TRUST CERTIFICATE HAS
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR
ANY STATE SECURITIES LAW, AND MAY NOT BE DIRECTLY OR INDIRECTLY OFFERED OR SOLD
OR OTHERWISE DISPOSED OF (INCLUDING PLEDGED) BY THE HOLDER HEREOF UNLESS IN THE
OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE SUCH TRANSACTION IS EXEMPT FROM
REGISTRATION UNDER THE ACT AND STATE SECURITIES LAWS. THE TRANSFER OF THIS TRUST
CERTIFICATE WILL NOT BE EFFECTIVE UNLESS THE
B-2
TRANSFEREE HAS DELIVERED TO THE TRUSTEE A LETTER IN THE FORM REQUIRED BY SECTION
3.04 OF THE TRUST AGREEMENT AND THE TRANSFEREE PROVIDES THE TRUSTEE WITH
EVIDENCE SATISFACTORY TO THE TRUSTEE DEMONSTRATING THE TRANSFEREE'S COMPLIANCE
WITH THE NET WORTH REQUIREMENTS OF SECTION 3.04 OF THE TRUST AGREEMENT.
9. It is not (i) an employee benefit plan, retirement arrangement, individual
retirement account or Keogh plan subject to either Title I of the Employee
Retirement Income Security Act of 1974, as amended, or Section 4975 of the
Code, or (2) an entity (including an insurance company general account)
whose underlying assets include plan assets by reason of the investment by
such plans, arrangements or accounts in any such entity.
10. It is a U.S. Person as defined in Section 7701(a)(30) of the Code.
11. We agree to be bound by all the terms and conditions of our Trust
Certificate and the Trust Agreement.
Very truly yours,
------------------------------
[Name of Purchaser]
By
------------------------------------
Name
--------------------------------
Title
-------------------------------
Accepted and Acknowledged
this ___ day of ____________, 20__.
Wilmington Trust Company,
as Trustee
By:
--------------------------------
Name:
---------------------------
Title:
--------------------------
B-3
EXHIBIT C
OWNER TRUSTEE COMPENSATION AGREEMENT
(Intentionally Omitted)
C-1