EXECUTION COPY
KBUSA STUDENT LOAN TRANSFER AGREEMENT
Between
KEY BANK USA, NATIONAL ASSOCIATION,
as Seller
KEY CONSUMER RECEIVABLES LLC,
as Purchaser
and
BANK ONE, NATIONAL ASSOCIATION,
not in its individual capacity, but solely
as Depositor Eligible Lender Trustee
Dated as of September 1, 2001
TABLE OF CONTENTS
PAGE
ARTICLE I Definitions and Usage......................................1
ARTICLE II Conveyance of KBUSA Financed Student Loans.................3
SECTION 2.01. Conveyance of KBUSA Initial Financed Student Loans.........3
SECTION 2.02. Conveyance of KBUSA Other Student Loans....................4
SECTION 2.03. Conveyance of KBUSA Financed Student Loans by the
Purchaser to the Seller in Connection with KBUSA
Consolidation Loans........................................6
SECTION 2.04. Endorsement................................................6
SECTION 2.05. Sale Not Secured Financing.................................6
SECTION 2.06. MPN Loans..................................................7
ARTICLE III The KBUSA Financed Student Loans...........................9
SECTION 3.01. Representations and Warranties of Seller with Respect
to the KBUSA Financed Student Loans........................9
SECTION 3.02. Repurchase upon Breach; Reimbursement.....................13
ARTICLE IV The Seller................................................14
SECTION 4.01. Representations of Seller.................................14
SECTION 4.02. Existence.................................................16
SECTION 4.03. Liability of Seller; Indemnities..........................16
SECTION 4.04. [Reserved.]...............................................17
SECTION 4.05. Merger or Consolidation of, or Assumption of the
Obligations of, Seller....................................17
SECTION 4.06. Limitation on Liability of Seller and Others..............18
ARTICLE V The Purchaser.............................................18
SECTION 5.01. Representations of Purchaser..............................18
ARTICLE VI Purchase Termination Events...............................19
SECTION 6.01. Purchase Termination......................................19
ARTICLE VII Miscellaneous.............................................19
SECTION 7.01. Amendment.................................................19
SECTION 7.02. Protection of Interests in KBUSA Assets...................21
SECTION 7.03. Notices...................................................22
SECTION 7.04. Assignment of Agreement...................................23
SECTION 7.05. Limitations on Rights of Others...........................23
SECTION 7.06. Severability..............................................23
SECTION 7.07. Separate Counterparts.....................................23
SECTION 7.08. Headings..................................................23
SECTION 7.09. Governing Law.............................................23
SECTION 7.10. Assignment................................................23
SECTION 7.11. Nonpetition Covenants.....................................23
SECTION 7.12. Limitation of Liability of Depositor Eligible Lender
Trustee...................................................24
SECTION 7.13. Consent of the Securities Insurer.........................24
SECTION 7.14. Intended Third Party Beneficiaries........................24
SECTION 7.15. Representations and Warranties............................25
APPENDIX A Definitions and Usage
SCHEDULE A Schedule of KBUSA Initial Financed Student Loans
SCHEDULE B Schedule of KBUSA Additional Student Loans
SCHEDULE C Location of KBUSA Financed Student Loan Files
EXHIBIT A Form of Assignment on Closing Date
EXHIBIT B Form of KBUSA Subsequent Transfer Agreement
KBUSA STUDENT LOAN TRANSFER AGREEMENT dated as of September 1, 2001,
among KEY BANK USA, NATIONAL ASSOCIATION, a national banking association and
successor in interest to Society National Bank, as Seller ("KBUSA" or the
"Seller"), KEY CONSUMER RECEIVABLES LLC, a Delaware limited liability company,
as purchaser (the "Purchaser") and BANK ONE, NATIONAL ASSOCATION, a national
banking association, not in its individual capacity but solely as depositor
eligible lender trustee (the "Depositor Eligible Lender Trustee").
WHEREAS, the Seller intends to assign to the Purchaser its rights in a
portfolio of undergraduate and graduate school student loans originated or
purchased in the ordinary course of business by the Seller or its predecessors;
WHEREAS, the Seller intends to assign to the Purchaser during a
limited period additional student loans it currently owns and student loans it
may originate or acquire in the future;
WHEREAS, the Purchaser desires to purchase, and the Seller is willing
to sell to the Purchaser, such student loans; and
WHEREAS, the Depositor Eligible Lender Trustee is willing to hold
legal title to, and serve as eligible lender trustee with respect to such
student loans on behalf of the Purchaser;
WHEREAS, the Purchaser intends to transfer the KBUSA Student Loans to
KeyCorp Student Loan Trust 2001-A (the "Trust" or the "Issuer") immediately
following its purchase of such KBUSA Student Loans from the Seller.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND USAGE
Capitalized terms used but not defined herein are defined in Appendix
A hereto, which also contains rules as to usage and construction that shall be
applicable herein, and in addition, the following terms shall have these
ascribed meaning:
"DEPOSITOR ELIGIBLE LENDER TRUSTEE" means Bank One National
Association, not in its individual capacity, but solely as eligible lender
trustee on behalf of the Purchaser.
"KBUSA ADDITIONAL STUDENT LOANS" means the KBUSA Other Student Loans,
the KBUSA Guarantee Fee Advances and any fundings of accrued interest to be
capitalized in respect of the KBUSA Financed Student Loans.
"KBUSA ASSETS" means all right, title and interest of the Purchaser in
and to the property and rights assigned to the Purchaser pursuant to Article II
of this Agreement, including any rights of the Purchaser pursuant to the KBUSA
Subsequent Transfer Agreement.
"KBUSA CONSOLIDATION LOANS" means, collectively, KBUSA Federal
Consolidation Loans and KBUSA Private Consolidation Loans.
"KBUSA FEDERAL CONSOLIDATION LOAN" means a loan made by the Seller to
an eligible borrower that represents the refinancing of Financed Federal Loans
of such borrower in accordance with the applicable terms and conditions of the
Program and the Higher Education Act.
"KBUSA FINANCED FEDERAL LOANS" means those KBUSA Financed Student
Loans that are guaranteed as to the payment of principal and interest by ASA,
CSAC, CSLF, ECMC, GLHEC, MHEAA, NSLP, NYHESC, PHEAA, TSAC or USAF and are
reinsured by the Department.
"KBUSA FINANCED GUARANTEED PRIVATE LOANS" means those KBUSA Financed
Student Loans originated or purchased by the Seller that are guaranteed as to
payment of principal and interest by XXXX or HICA and are not reinsured by the
Department or any other governmental entity.
"KBUSA FINANCED PRIVATE LOAN" means, collectively, the KBUSA Financed
Guaranteed Private Loans and KBUSA Financed Unguaranteed Private Loans.
"KBUSA FINANCED STUDENT LOAN FILES" means the documents, with respect
to each KBUSA Financed Student Loan, specified in Section 3.03 of the Sale and
Servicing Agreement.
"KBUSA FINANCED STUDENT LOANS" means, collectively, the KBUSA Initial
Student Loans and the KBUSA Other Student Loans.
"KBUSA FINANCED UNGUARANTEED PRIVATE LOANS" means those KBUSA Financed
Student Loans that are not guaranteed as to the payment of principal or interest
by any federal or private guarantor, or by any other party or governmental
agency, including, without limitation, the Seller.
"KBUSA GUARANTEE FEE ADVANCE" means a loan made by the Seller to a
borrower of a KBUSA Financed Private Loan, at the borrower's option, at the time
such borrower commences repayment of such KBUSA Financed Private Loan, to
finance the cost of the fee imposed with respect to such KBUSA Financed Private
Loan at such time.
"KBUSA INITIAL STUDENT LOANS" means the any graduate or undergraduate
student loans listed on the Schedule of KBUSA Initial Student Loans on the
Closing Date.
"KBUSA OTHER STUDENT LOANS" means the KBUSA Serial Loans (including
KBUSA Consolidation Loans), KBUSA Guarantee Fee Advances and the funding of
accrued interest to be capitalized made by the Seller to an eligible borrower
who has one or more existing loans under the Programs that are Financed Student
Loans and are transferred or to be transferred to the Purchaser during the
Funding Period pursuant to Section 2.02 of this Agreement.
"KBUSA PRIVATE CONSOLIDATION LOAN" means all loans made by the Seller
to an eligible borrower that represents the refinancing of KBUSA Financed
Private Loans of such borrower in accordance with the terms of the Programs.
"KBUSA SERIAL LOANS" means additional loans, including KBUSA
Consolidation Loans, which are made under the Programs to a borrower who is also
a borrower under at least one Financed Student Loan.
"KBUSA GROUP I STUDENT LOANS" means those KBUSA Financed Student Loans
that are Group I Student Loans.
"KBUSA GROUP II STUDENT LOANS" means those KBUSA Financed Student
Loans that are Group II Student Loans.
"KBUSA STUDENT LOAN TRANSFER AGREEMENT" OR "AGREEMENT" means this
KBUSA Student Loan Transfer Agreement, dated as of September 1, 2001, among the
Purchaser, the Seller and the Depositor Eligible Lender Trustee.
"KBUSA SUBSEQUENT TRANSFER AGREEMENT" has the meaning given to such
term in Section 2.02(b) below.
"PURCHASER" means the Depositor, as purchaser of KBUSA Financed
Student Loans pursuant to this Agreement.
"SCHEDULE OF ADDITIONAL KBUSA STUDENT LOANS" means Schedule B of the
KBUSA Subsequent Transfer Agreement (which schedule may be in the form of
microfiche or computer tape), as such schedule may be amended or supplemented.
"SCHEDULE OF KBUSA INITIAL STUDENT LOANS" means Schedule A to this
Agreement (which schedule may be in the form of microfiche or computer tape)
delivered on the Closing Date.
"SELLER" means KBUSA, as seller of KBUSA Student Loans pursuant to
this Agreement.
ARTICLE II
CONVEYANCE OF KBUSA FINANCED STUDENT LOANS
SECTION 2.01. CONVEYANCE OF KBUSA INITIAL FINANCED STUDENT LOANS. In
consideration of the Purchaser's delivery to or upon the order of the Seller on
the Closing Date of $533,857,417 and the other amounts to be distributed from
time to time to the Seller in accordance with the terms of this Agreement, the
Seller does hereby, as evidenced by a duly executed written assignment in the
form of Exhibit A, sell, transfer, assign, set over and otherwise convey to the
Purchaser and, with respect to legal title to the KBUSA Initial Financed Student
Loans, to the Depositor Eligible Lender Trustee without recourse (subject to the
obligations herein):
(i) all right, title and interest of the Seller in and to the KBUSA
Initial Student Loans and all obligations of the Obligors thereunder,
including all moneys paid thereunder, and all written communications
received by the Seller with respect thereto (including borrower
correspondence, notices of death, disability or bankruptcy and requests for
deferrals or forbearances), on or after the Cutoff Date;
(ii) all right, title and interest of the Seller under the applicable
Assigned Agreements insofar as they relate to the KBUSA Financed Guaranteed
Private Loans but not with respect to any other loans covered thereby; and
(iii) the proceeds of any and all of the foregoing.
SECTION 2.02. CONVEYANCE OF KBUSA OTHER STUDENT LOANS. (a) Subject to
the conditions set forth in paragraph (b) below, in consideration of the
Purchaser's delivery on the related Subsequent Transfer Date to or upon the
order of the Seller of the amount described in Section 5.08(a) of the Sale and
Servicing Agreement to be delivered to the Depositor for further distribution to
the Seller, the Seller does hereby sell, transfer, assign, set over and
otherwise convey to the Purchaser (and, with respect to legal title to each
KBUSA Other Student Loan, to the Depositor Eligible Lender Trustee,) without
recourse (subject to the obligations herein) all right, title and interest of
the Seller in and to each KBUSA Other Student Loan, and all obligations of the
Obligors thereunder including all moneys paid thereunder, and all written
communications received by the Seller with respect thereto (including borrower
correspondence, notices of death, disability or bankruptcy and requests for
deferrals or forbearances), on and after the related Subsequent Cutoff Date,
made from time to time during the Funding Period.
(b) The Seller shall transfer to the Purchaser the KBUSA Other Student
Loans for a given Subsequent Transfer Date and the other property and rights
related thereto described in paragraph (a) above, and with respect to legal
title to such KBUSA Other Student Loans, to the Depositor Eligible Lender
Trustee, only upon the satisfaction of each of the following conditions on or
prior to such Subsequent Transfer Date:
(i) the Seller shall have delivered to the Purchaser and the Depositor
Eligible Lender Trustee a duly executed written assignment (including an
acceptance by the Depositor Eligible Lender Trustee on behalf of the
Purchaser) in substantially the form of Exhibit B (each, a "KBUSA
Subsequent Transfer Agreement"), which shall include supplements to the
Schedule of KBUSA Additional Student Loans listing such KBUSA Other Student
Loans;
(ii) except any of the KBUSA Additional Student Loans transferred on
the day immediately following the Closing Date, the Seller shall have
delivered, at least two days prior to such Subsequent Transfer Date, notice
of such transfer to the Purchaser, the Depositor Eligible Lender Trustee,
the Securities Insurer and the Indenture Trustee, including a listing of
the designation and the aggregate principal balance of such KBUSA Other
Student Loans;
(iii) the Seller shall, to the extent required by Section 5.02 of the
Sale and Servicing Agreement, have delivered for deposit in the applicable
subaccounts of the Collection Account all collections in respect of the
KBUSA Other Student Loans on and after each applicable Subsequent Cutoff
Date;
(iv) as of each Subsequent Transfer Date, the Seller was not insolvent
nor will it have been made insolvent by such transfer nor is it aware of
any pending insolvency;
(v) such addition will not result in a material adverse Federal or
State tax consequence to the Purchaser;
(vi) with respect to KBUSA Group I Student Loans, the Group I Funding
Period shall not have terminated and, with respect to KBUSA Group II
Student Loans, the Group II Funding Period shall not have terminated;
(vii) the Seller shall have delivered to the Purchaser, the Depositor
Eligible Lender Trustee the Securities Insurer and the Indenture Trustee an
Officers' Certificate confirming the satisfaction of each condition
precedent specified in this paragraph (b);
(viii) the Seller shall have delivered (A) to the Rating Agencies,
with copies to the Purchaser, the Depositor Eligible Lender Trustee, the
Securities Insurer and the Indenture Trustee, an Opinion of Counsel with
respect to the transfer of KBUSA Other Student Loans transferred on such
Subsequent Transfer Date, substantially in the form of the Opinion of
Counsel delivered to the Rating Agencies, the Depositor Eligible Lender
Trustee, the Securities Insurer and the Indenture Trustee on the Closing
Date, and (B) to the Indenture Trustee, the Securities Insurer and the
Eligible Lender Trustee the Opinion of Counsel required by Section
7.02(d)(1);
(ix) the Seller shall have taken any action required to maintain the
first perfected ownership interest of the Purchaser in the in the KBUSA
Financed Student Loans and the KBUSA Assets;
(x) no selection procedures believed by the Seller to be adverse to
the interests of the Purchaser shall have been utilized in selecting the
KBUSA Other Student Loans;
(xi) no interest in a KBUSA Consolidation Loan will be transferred to
the Purchaser unless at least one underlying student loan to be
consolidated is a Financed Student Loan already held by Purchaser or
transferred by the Purchaser to the Eligible Lender Trustee on behalf of
the Issuer pursuant to the Sale and Servicing Agreement; and
(xii) with respect to each KBUSA Other Student Loan that is also an
MPN Loan, the representations and warranties of the Seller contained in
Section 2.06 hereof, will be true and correct on the related Subsequent
Transfer Date, and the Seller will adhere to the covenants set forth in
Section 2.06 with respect to such Transferred MPN Loan.
PROVIDED, HOWEVER, that the Seller shall not incur any liability as a result of
transferring KBUSA Other Student Loans on any Subsequent Transfer Date at a time
when the condition set forth in clause (v) was not satisfied, if at the time of
such transfer the Authorized Officers of the Seller, after reasonable inquiry of
in-house counsel to the Seller, were not aware of any fact that would reasonably
suggest that such condition would not be satisfied as of such date.
(c) The Seller covenants to transfer during each of the Group I and
Group II Funding Periods, as applicable, to Purchaser (with respect to
beneficial ownership) and the Depositor Eligible Lender Trustee (with respect to
legal title) on behalf of the Purchaser pursuant to paragraph (a) above (i)
KBUSA Other Student Loans that are Group I Student Loans having an aggregate
principal balance of not less than $20,000,000 (less amounts withdrawn from the
Group I Pre-Funding Account pursuant to Section 5.08(d) of the Sale and
Servicing Agreement) and (ii) KBUSA Other Student Loans that are Group II
Student Loans having an aggregate principal balance of not less than $28,000,000
(less amounts withdrawn from the Group II Pre-Funding Account pursuant to
Section 5.08(d) of the Sale and Servicing Agreement); PROVIDED, HOWEVER, that
the Seller shall have no liability for a breach of the foregoing covenant as a
result of the Seller not having made or owned prior to the date hereof KBUSA
Other Student Loans that are Group I Student Loans or Group II Student Loans, as
applicable, equal to the amount specified above during the Group I or Group II
Funding Period, respectively, or there being insufficient funds available to the
Depositor to consummate such acquisitions.
SECTION 2.03. CONVEYANCE OF KBUSA FINANCED STUDENT LOANS BY THE
PURCHASER TO THE SELLER IN CONNECTION WITH KBUSA CONSOLIDATION LOANS. On any
date, upon receipt of written notice (or telephonic or facsimile notice followed
by written notice) from the Seller, the Depositor (or the Depositor Eligible
Lender Trustee on its behalf) will convey to the Seller the Financed Student
Loans identified in such notice, which are to be repaid pursuant to the KBUSA
Consolidation Loans to be made by the Seller.
SECTION 2.04. ENDORSEMENT. The Seller hereby appoints the Depositor
Eligible Lender Trustee as the Seller's true and lawful attorney-in-fact with
full power of substitution to endorse the Seller's name on any promissory note
evidencing the KBUSA Initial Financed Student Loans and any KBUSA Additional
Student Loans transferred to the Depositor Eligible Lender Trustee on behalf of
the Purchaser pursuant to Sections 2.01 and 2.02. The Seller acknowledges and
agrees that this power of attorney shall be construed as a power coupled with an
interest and shall be irrevocable as long as the Trust Agreement remains in
effect and shall continue in effect until the Trust Agreement terminates.
SECTION 2.05. SALE NOT SECURED FINANCING. It is the express intent of
the parties hereto that each conveyance of the KBUSA Financed Student Loans by
the Seller to the Purchaser (and, with respect to legal title to such KBUSA
Financed Student Loans, to the Depositor Eligible Lender Trustee,) as
contemplated by this Agreement be (and be treated as) a sale. It is, further,
not the intention of the parties that such conveyance be deemed a pledge of any
such KBUSA Financed Student Loans by the Seller to the Depositor Eligible Lender
Trustee on behalf of the Purchaser to secure a debt or other obligation of the
Seller. However, in the event that, notwithstanding the intent of the parties,
any of the KBUSA Financed Student Loans are held by a court to continue to be
property of the Seller, then (a) this Agreement shall also be deemed to be a
security agreement within the meaning of Articles 8 and 9 of the applicable
Uniform Commercial Code; (b) the transfer of such KBUSA Financed Student Loans
provided for herein shall be deemed to be a grant by the Seller to the of a
security interest in all of the Seller's right, title and interest in and to
such KBUSA Financed Student Loans and all amounts payable to the holders of such
KBUSA Financed Student Loans in accordance with the terms thereof and all
proceeds of the conversion, voluntary or involuntary, of the foregoing into
cash, instruments, securities or other property, to the extent the Purchaser or
the Depositor Eligible Lender Trustee would otherwise be entitled to own such
KBUSA Financed Student Loans and proceeds pursuant to Article II hereof; (c) the
possession by the Sub-Servicers of each KBUSA Financed Student Loan File, and
such other items of property as constitute instruments, money, negotiable
documents or chattel paper shall be deemed to be "possession by the secured
party" for purposes of perfecting the security interest pursuant to Section
9-305 (or comparable provision) of the applicable Uniform Commercial Code; and
(d) notifications to persons holding such property, and acknowledgments,
receipts or confirmations from persons holding such property, shall be deemed
notifications to, or acknowledgments, receipts or confirmations from, financial
intermediaries, bailees or agents (as applicable) of the Depositor Eligible
Lender Trustee and the Purchaser for the purpose of perfecting such security
interest under applicable law. Any assignment of the interest of the Eligible
Lender Trustee on behalf of the Purchaser or by the Purchaser pursuant to any
provision hereof shall also be deemed to be an assignment of any security
interest created hereby. The Seller, the Depositor Eligible Lender Trustee and
the Purchaser shall, to the extent consistent with this Agreement, take such
actions as may be reasonably necessary to ensure that, if this Agreement were
deemed to create a security interest in the KBUSA Financed Student Loans, such
security interest would be deemed to be a perfected security interest of first
priority under applicable law and will be maintained as such throughout the term
of the this Agreement.
SECTION 2.06. MPN LOANS. With respect to each KBUSA Group I Student
Loan that is a Transferred MPN Loan and each related Master Note, the Seller, as
MPN Holder, hereby represents and warrants, and, on an on-going basis, hereby
covenants as follows:
(A) TRANSFER OF BENEFICIAL INTEREST IN MPN LOAN. Each such Transferred
MPN Loan represents a 100% beneficial interest in the related MPN Loan, and
is being transferred to the Purchaser and, with respect to legal title
thereto, to the Depositor Eligible Lender Trustee pursuant to this
Agreement. The MPN Holder shall hold bare legal title to the Master Note
solely for the benefit of all MPN Loan Holders; PROVIDED, HOWEVER, that the
MPN Holder may be also be an MPN Loan Holder. The sale of a Transferred MPN
Loan excludes an assignment of the Seller's right to offer future MPN Loans
under a Master Note. The MPN Holder shall not provide to MPN Loan Holders
more than one copy of the Master Note for each MPN Loan, to be marked
"Official Copy" in red ink.
(B) CUSTODY OF MASTER NOTE. The MPN Holder shall hold, or cause the
Master Servicer or a Sub-Servicer to hold, the Master Note relating to each
such Transferred MPN Loan for the use and benefit of all present and future
MPN Loan Holders. The MPN Holder shall maintain, or cause the Master
Servicer or a Sub-Servicer to maintain, continuous and exclusive
possession, dominion and control over the Master Note and related
documents. The MPN Holder shall not sell, transfer, assign or pledge any
such Master Note except as is otherwise agreed to between the MPN Holder.
(C) MPN LOAN TRANSFERS. The MPN Holder shall maintain book-entry
records with respect to the identity of present and future MPN Loan
Holders. The MPN Holder shall not transfer or register the transfer of any
MPN Loan to any other person except in accordance with the instructions of
the person identified on its books and records as the MPN Loan Holder.
(D) MPN LOAN MODIFICATION; SUBSEQUENT ADVANCES; COPIES OF MASTER NOTE.
The MPN Holder shall not agree to any modification, waiver, forbearance or
amendment of any term of any such Transferred MPN Loan other than as
provided in Section 4.01 of the Sale and Servicing Agreement. The MPN
Holder shall make no subsequent advances to a borrower under the related
Master Note except pursuant to a separate MPN Loan. The MPN Holder shall
not provide to any person other than an MPN Loan Holder any copy of a
Master Note except to the Master Servicer or a Sub-Servicer for
administrative purposes or for the MPN Holder's internal administrative
purposes.
(E) ACCESS TO INFORMATION. The MPN Holder shall furnish to the
Depositor Eligible Lender Trustee, the Purchaser, the Eligible Lender
Trustee, or the Indenture Trustee from time to time upon written request of
the Depositor Eligible Lender Trustee, the Purchaser, the Eligible Lender
Trustee, or the Indenture Trustee (i) a list of the names and addresses of
all MPN Loan Holders, (ii) a list containing the names and social security
numbers of the borrowers under the related Master Notes, (iii) access to
inspect the Master Notes and related records upon reasonable advance
notice, and (iv) such other information with respect to the Master Notes
which is reasonably requested by the Depositor Eligible Lender Trustee, the
Purchaser, the Eligible Lender Trustee, or the Indenture Trustee.
(F) RESIGNATION OR REMOVAL OF MPN HOLDER. The MPN Holder may at any
time resign by giving written notice thereof to the Depositor Eligible
Lender Trustee, the Purchaser, the Eligible Lender Trustee, and the
Indenture Trustee and delivering all related Master Notes to a successor
MPN Holder, which agrees to the terms of this Agreement, or to the
Indenture Trustee at the direction of the Depositor Eligible Lender Trustee
(on behalf of the Eligible Lender Trustee). If at any time the MPN Holder
shall fail to perform its duties hereunder, or shall be adjudged bankrupt
or insolvent, then the Indenture Trustee, at the direction of the Group I
Controlling Noteholders holding at least a majority in interest of the
Outstanding Amount of the related Group I Notes, may remove the MPN Holder
and appoint a successor MPN Holder, which agrees to the terms of this
Agreement by written instrument, a copy of which instrument shall be
delivered to the MPN Holder so removed, or may require the MPN Holder to
deliver the related Master Notes to the Indenture Trustee at the direction
of the Depositor Eligible Lender Trustee (on behalf of the Eligible Lender
Trustee).
(G) MPN HOLDER OTHER THAN SELLER. So long as the Seller has not
transferred all of its right, title and interest in a related Master Note,
if the Seller is not the MPN Holder, the Seller shall cause such other MPN
Holder to perform all covenants of the MPN Holder set forth in this
Agreement.
(H) FINANCING STATEMENTS AND FURTHER ASSURANCES. The Seller will cause
to be filed all necessary financing statements or other instruments, and
any amendments or continuation statements relating thereto, necessary to be
kept and filed in such manner and in such places as may be required by law
to give to and maintain with the Depositor Eligible Lender Trustee on
behalf of the Purchaser a first priority perfected security interest in
such MPN Loans. The Seller shall upon the request of the Depositor Eligible
Lender Trustee, from time to time, execute, acknowledge and deliver, or
cause to be executed, acknowledged and delivered, within 10 days of such
request, such amendments to this Agreement and such further instruments and
take such further action as may be reasonably necessary to maintain such
first priority perfected ownership and security interests.
ARTICLE III
THE KBUSA FINANCED STUDENT LOANS
SECTION 3.01. REPRESENTATIONS AND WARRANTIES OF SELLER WITH RESPECT TO
THE KBUSA FINANCED STUDENT LOANS. The Seller makes the following representations
and warranties as to the KBUSA Financed Student Loans on which each of the
Depositor Eligible Lender Trustee and the Purchaser is deemed to have relied in
acquiring the KBUSA Financed Student Loans. Such representations and warranties
speak as of the execution and delivery of this Agreement and as of the Closing
Date, in the case of the KBUSA Initial Student Loans, and as of the applicable
Subsequent Transfer Date, in the case of the KBUSA Other Student Loans, but
shall survive the sale, transfer and assignment of the KBUSA Financed Student
Loans to the Depositor Eligible Lender Trustee on behalf of the Purchaser.
(i) CHARACTERISTICS OF KBUSA FINANCED STUDENT LOANS. Each KBUSA
Financed Student Loan (A) was originated in the United States of America,
its territories, its possessions or other areas subject to its jurisdiction
by the Seller (or originated by another lender in the United States of
America and purchased by the Seller) in the ordinary course of its business
to an eligible borrower under applicable law and agreements and was fully
and properly executed by the parties thereto and (B) provides or, when the
payment schedule with respect thereto is determined, will provide for
payments on a periodic basis that fully amortize the principal amount of
such KBUSA Financed Student Loan by its maturity and yield interest at the
rate applicable thereto, as such maturity may be modified in accordance
with any applicable deferral or forbearance periods granted in accordance
with applicable laws and restrictions, including those of the Higher
Education Act, any Guarantee Agreement or the Programs. Each KBUSA Financed
Student Loan that is a KBUSA Financed Federal Loan qualifies the holder
thereof to receive Interest Subsidy Payments (other than SLS Loans,
unsubsidized Xxxxxxxx Loans and certain KBUSA Consolidation Loans) and
Special Allowance Payments from the Department and Guarantee Payments from
the applicable Guarantor and qualifies the applicable Guarantor to receive
reinsurance payments thereon from the Department. Each KBUSA Financed
Student Loan that is KBUSA Financed Guaranteed Private Loan qualifies the
holder thereof to receive Guarantee Payments from the applicable Guarantor
pursuant to the related Guarantee Agreement.
(ii) SCHEDULES OF KBUSA FINANCED STUDENT LOANS. The information set
forth in Schedules A and B to this Agreement and Schedule A to the related
KBUSA Subsequent Transfer Agreement is true and correct in all material
respects as of the opening of business on the Cutoff Date (with respect to
Schedules A and B to this Agreement) or each applicable Subsequent Cutoff
Date, as applicable, and no selection procedures believed to be adverse to
the Eligible Lender Trustee, the Issuer, the holders of Notes, the
Securities Insurer (in respect of the KBUSA Group II Student Loans only) or
the Swap Counterparty were utilized in selecting the KBUSA Initial Student
Loans or the KBUSA Additional Student Loans, as applicable. The computer
tape regarding the KBUSA Initial Student Loans made available to the
Depositor Eligible Lender Trustee, the Purchaser, its assigns, the Eligible
Lender Trustee, the Issuer, the Securities Insurer (with respect to the
KBUSA Financed Student Loans that are KBUSA Group II Student Loans) and the
Swap Counterparty is true and correct in all respects as of the Cutoff
Date. There will be no material changes made to Schedule A to this
Agreement without the acknowledgement of the Rating Agencies that such
material change will not affect the ratings assigned to any Class of the
Notes (and with respect to the Group II Notes, without regard to the Group
II Notes Guaranty Insurance Policy).
(iii) COMPLIANCE WITH LAW. Each KBUSA Financed Student Loan complied
at the time it was originated or made and at the execution of this
Agreement or the applicable KBUSA Subsequent Transfer Agreement, as the
case may be, complies, and the Seller and its agents, with respect to each
such KBUSA Financed Student Loan, have at all times complied, in all
material respects with all requirements of applicable Federal, state and
local laws and regulations thereunder, including the Higher Education Act,
usury law, the Federal Truth-in-Lending Act, the Equal Credit Opportunity
Act, the Federal Reserve Board's Regulation B and other consumer credit
laws and equal credit opportunity and disclosure laws and all applicable
requirements of any Guarantee Agreements.
(iv) BINDING OBLIGATION. Each KBUSA Financed Student Loan represents
the genuine, legal, valid and binding payment obligation in writing of the
borrower thereof, enforceable by or on behalf of the holder thereof in
accordance with its terms, and no KBUSA Financed Student Loan has been
satisfied, subordinated or rescinded, subject to clause (xiii) below.
(v) NO DEFENSES. No right of rescission, setoff, counterclaim or
defense has been asserted or threatened or exists with respect to any KBUSA
Financed Student Loan.
(vi) NO DEFAULT. No KBUSA Initial Student Loan has a payment that is
more than 180 days overdue as of the Cutoff Date or, with respect to the
KBUSA Other Student Loans, more than 90 days overdue as of the applicable
Subsequent Cutoff Date, as the case may be, and, except as permitted in
this paragraph, no default, breach, violation or event permitting
acceleration under the terms of any KBUSA Financed Student Loan has
occurred; and, except for payment defaults continuing for a period of not
more than 150 days or 90 days, as applicable, no continuing condition that
with notice or the lapse of time or both would constitute a default,
breach, violation or event permitting acceleration under the terms of any
KBUSA Financed Student Loan has arisen; and the Seller has not waived and
shall not waive any of the foregoing other than as permitted by the Basic
Documents.
(vii) TITLE. It is the intention of the Seller that the transfer and
assignment herein contemplated constitute a sale of the KBUSA Financed
Student Loans from the Seller to the Depositor Eligible Lender Trustee on
behalf of the Purchaser and that the beneficial interest in and title to
such KBUSA Financed Student Loans not be part of the debtor's estate in the
event of the appointment of a receiver with respect to the Seller. No KBUSA
Financed Student Loan has been sold, transferred, assigned or pledged by
the Seller to any Person other than Depositor Eligible Lender Trustee on
behalf of the Purchaser. Immediately prior to the transfer and assignment
herein contemplated, the Seller had good title to each KBUSA Financed
Student Loan, free and clear of all Liens and, immediately upon the
transfer thereof, the Depositor Eligible Lender Trustee on behalf of the
Purchaser shall have good title to each such KBUSA Financed Student Loan,
free and clear of all Liens or the transfer shall have been perfected under
the UCC.
(viii) LAWFUL ASSIGNMENT. No KBUSA Financed Student Loan has been
originated in, or is subject to the laws of, any jurisdiction under which
the sale, transfer and assignment of such KBUSA Financed Student Loan or
any KBUSA Financed Student Loan under this Agreement, the Sale and
Servicing Agreement each KBUSA Subsequent Transfer Agreement or the
Indenture is unlawful, void or voidable.
(ix) SECURITY INTEREST PERFECTED; DELIVERY OF LOAN FILES. All filings
(including UCC filings) and/or delivery requirements necessary in any
jurisdiction to give the Depositor Eligible Lender Trustee on behalf of the
Purchaser a first perfected ownership interest in the KBUSA Financed
Student Loans have been made or satisfied, as the case may be. A KBUSA
Financed Student Loan File has been delivered to the Master Servicer (or a
Sub-Servicer) for each KBUSA Financed Student Loan and each such file
contains the original fully executed note (or a copy of a fully executed
master promissory note) evidencing such KBUSA Financed Student Loan.
(x) ONE ORIGINAL. There is only one original executed copy of the
promissory note evidencing each KBUSA Financed Student Loan.
(xi) PRINCIPAL BALANCE. The aggregate principal balance of the KBUSA
Initial Student Loans, plus accrued interest to be capitalized with respect
thereto, as of the Statistical Cutoff Date, is $525,936,835.
(xii) NO CLAIMS. As of the Cutoff Date, no claim for payment with
respect to an KBUSA Initial Student Loan has been made to a Guarantor, and
as of the related Subsequent Cutoff Date no claim for payment with respect
to an KBUSA Additional Student Loan will have been made.
(xiii) NO BANKRUPTCIES OR DEATHS. No borrower of any KBUSA Financed
Student Loan as of September 1, 2001 (in the case of the KBUSA Initial
Financed Student Loans), or the applicable Subsequent Cutoff Date (in the
case of KBUSA Additional Student Loans) was noted in the related KBUSA
Financed Student Loan File as being currently involved in a bankruptcy
proceeding or as having died.
(xiv) INTEREST ACCRUING. Each KBUSA Financed Student Loan is accruing
interest (whether or not such interest is being paid currently, by the
borrower or by the Department, or is being capitalized), except as
otherwise expressly permitted by the Basic Documents.
(xv) NO GOVERNMENT BORROWER. No borrower of a KBUSA Financed Student
Loan is the United States of America or any State or any agency,
department, subdivision or instrumentality thereof.
(xvi) ORIGINATION. Each KBUSA Financed Student Loan was originated in
the United States of America, its territories, its possessions or other
areas subject to its jurisdiction, and was originated or purchased for
value by the Seller in the ordinary course of its business. The Seller had
all necessary licenses and permits to originate or purchase the KBUSA
Financed Student Loan at the time of its origination or purchase of such
KBUSA Financed Student Loan.
(xvii) ORIGINATION PRACTICES. The origination practices used by the
originator or the Seller with respect to the KBUSA Financed Student Loans
have been in all respects in compliance with all applicable laws and
regulations.
(xviii) CONFORMANCE WITH UNDERWRITING GUIDELINES. Each KBUSA Financed
Student Loan constituting a KBUSA Financed Private Loan was underwritten in
accordance with the guidelines in existence as of the Closing Date and made
available to the Underwriters, the Securities Insurer and the Rating
Agencies.
(xix) NO SUB-PRIME STUDENT LOANS. The KBUSA Financed Student Loans do
not and will not include any KBUSA Financed Student Loans originated to
individuals who have previously defaulted on their student loans.
(xx) NO NON-PERFORMING LOANS. No KBUSA Financed Student Loan, as of
the Statistical Cutoff Date, is in default nor does the Seller expect to
write-off any amount thereof as a loss.
(xxi) COHORT DEFAULT RATES. With respect to the KBUSA Initial Financed
Student Loans only, and based on the most recently published Cohort Default
Rates available on the Closing Date, no KBUSA Group I Student Loans or
KBUSA Group II Student Loans made to borrowers attending educational
institutions with published Cohort Default Rates greater than twenty
percent (20%) have been sold by the Seller to the Purchaser if, and to the
extent that, such acquisition would cause the aggregate principal amount of
either the KBUSA Group I Student Loans or KBUSA Group II Student Loans
included in the Trust Estate made to borrowers attending educational
institutions with published Cohort Default Rates greater than twenty
percent (20%) to exceed eight percent (8%) of the aggregate principal
amount of the KBUSA Group I Student Loans or KBUSA Group II Student Loans,
respectively, sold to the Issuer pursuant to this Agreement.
(xxii) INSTRUMENT. Each promissory note executed by a borrower
evidencing a KBUSA Financed Student Loan (other than any master promissory
note) constitutes an "instrument" within the meaning of the UCC as in
effect in the states in which each such borrower resides at origination.
(xxiii) SELLER'S REPRESENTATIONS. The representations and warranties
of the Seller contained in Section 4.01 hereof are true and correct.
(xxiv) MPN LOANS. With respect to each KBUSA Financed Student Loan
that is also an MPN Loan, the representations and warranties of the Seller
contained in Section 2.06 hereof are true and correct, and the Seller will
adhere to the covenants set forth in Section 2.06 with respect to such
Transferred MPN Loans.
SECTION 3.02. REPURCHASE UPON BREACH; REIMBURSEMENT. The Seller, the
Depositor Eligible Lender Trustee, the Securities Insurer or the Purchaser, as
the case may be, shall inform the other parties to this Agreement, promptly, in
writing, with a copy to each of the Issuer, the Master Servicer, the Eligible
Lender Trustee, the Indenture Trustee, the Swap Counterparty and the Securities
Insurer, upon the discovery of any breach of the Seller's representations,
warranties or covenants made pursuant to Section 3.01 or Section 4.01. Unless
any such breach shall have been cured within 60 days following the discovery
thereof by the Seller or receipt by the Seller of written notice from the
Depositor Eligible Lender Trustee, the Securities Insurer or the Purchaser of
such breach, the Seller shall be obligated to repurchase any KBUSA Financed
Student Loan in which the interests of the Eligible Lender Trustee, the Issuer,
the holders of Notes, the Swap Counterparty or, in respect of the KBUSA Group II
Student Loans only, the Securities Insurer, are materially and adversely
affected, as determined by (i) in respect of the KBUSA Group I Student Loans,
the Administrator and (ii) in respect of the KBUSA Group II Student Loans, the
Securities Insurer, or, if a Securities Insurer Default has occurred and is
continuing, the Administrator, as of the first day succeeding the end of such
60-day period that is the last day of a Collection Period; provided that it is
understood that any such breach that does not affect any Guarantor's obligation
to guarantee payment of each KBUSA Financed Student Loan that is a KBUSA
Financed Guaranteed Loan to the Eligible Lender Trustee in accordance with the
related Guarantee Agreements will not be considered to have a material adverse
effect for this purpose. In consideration of and simultaneously with the
repurchase of the KBUSA Financed Student Loan, the Seller shall remit the
Purchase Amount to the Depositor Eligible Lender Trustee on behalf of the
Purchaser, and the Depositor Eligible Lender Trustee shall execute such
assignments and other documents reasonably requested by the Seller in order to
effect such transfer. Upon any such transfer of a KBUSA Financed Student Loan,
legal title to, and beneficial ownership and control of, the related KBUSA
Financed Student Loan File will thereafter belong to the Seller. In addition, if
any such breach by the Seller does not trigger such a repurchase obligation but
does result in the refusal by a Federal Guarantor to guarantee all or a portion
of the accrued interest, or the loss (including any obligation of the Depositor
Eligible Lender Trustee on behalf of the Purchaser to repay to the Department)
of certain Interest Subsidy Payments and Special Allowance Payments, with
respect to a KBUSA Financed Federal Loan, then, unless such breach, if curable,
is cured within 60 days, the Seller shall reimburse the Depositor Eligible
Lender Trustee on behalf of the Purchaser by remitting to the Depositor Eligible
Lender Trustee an amount equal to the sum of all such non-guaranteed interest
amounts and such forfeited Interest Subsidy Payments and Special Allowance
Payments. Subject to the provisions of Section 4.03 hereof, and Section
[3.04(b)] of the Insurance Agreement, the sole remedy of the Depositor Eligible
Lender Trustee or the Purchaser with respect to a breach of representations and
warranties pursuant to Section 3.01 and the agreement contained in this Section
shall be to require the Seller to repurchase KBUSA Financed Student Loans or to
reimburse the Depositor Eligible Lender Trustee on behalf of the Purchaser as
provided above pursuant to this Section, subject to the conditions contained
herein.
ARTICLE IV
THE SELLER
SECTION 4.01. REPRESENTATIONS OF SELLER. Key Bank USA, National
Association, as Seller, makes the following representations on which the
Depositor Eligible Lender Trustee and the Purchaser is deemed to have relied in
acquiring the KBUSA Financed Student Loans. The representations speak as of the
execution and delivery of this Agreement and as of the Closing Date, in the case
of the KBUSA Initial Financed Student Loans, and as of the applicable Subsequent
Transfer Date, in the case of the KBUSA Additional Student Loans, and shall
survive the sale of the KBUSA Financed Student Loans to the Depositor Eligible
Lender Trustee on behalf of the Purchaser. As used below, references to Key Bank
USA, National Association shall mean Key Bank USA, National Association in its
capacity as the Seller.
(a) ORGANIZATION AND GOOD STANDING. Key Bank USA, National Association
is duly organized and validly existing as a national banking association in good
standing under the laws of the United States of America, with the power and
authority to own its properties and to conduct its business as such properties
are currently owned and such business is presently conducted, and had at all
relevant times, and has, the power, authority and legal right to acquire and own
the KBUSA Financed Student Loans.
(b) POWER AND AUTHORITY OF THE SELLER. The Seller has the corporate
power and authority to execute and deliver this Agreement and to carry out its
terms; the Seller has full corporate power and authority to sell and assign the
property to be sold and assigned to the Depositor Eligible Lender Trustee and
the Purchaser and the Seller has duly authorized such sale and assignment to the
Depositor Eligible Lender Trustee, with respect to legal title to the KBUSA
Financed Student Loans, and the Purchaser by all necessary corporate action; and
the execution, delivery and performance of this Agreement have been duly
authorized by the Seller by all necessary corporate action.
(c) BINDING OBLIGATION. This Agreement constitutes a legal, valid and
binding obligation of Key Bank USA, National Association, enforceable in
accordance with its terms, subject to applicable bankruptcy, insolvency,
reorganization and similar laws relating to creditors' rights generally or the
rights of creditors of banks the deposit accounts of which are insured by the
FDIC and subject to general principles of equity.
(d) NO VIOLATION. The consummation of the transactions contemplated by
this Agreement and the fulfillment of the terms hereof or thereof do not
conflict with, result in any breach of any of the terms and provisions of, nor
constitute (with or without notice or lapse of time or both) a default under,
the articles of association or by-laws of Key Bank USA, National Association, or
any indenture, agreement or other instrument to which Key Bank USA, National
Association is a party or by which it shall be bound, which breach or default
would reasonably be expected to have a material adverse effect on the condition
of Key Bank USA, National Association, financial or otherwise, or adversely
affect the transactions contemplated by this Agreement; nor result in the
creation or imposition of any Lien upon any of its properties pursuant to the
terms of any such indenture, agreement or other instrument (other than pursuant
to the Basic Documents); nor violate any law or, to the knowledge of Key Bank
USA, National Association, any order, rule or regulation applicable to Key Bank
USA, National Association of any court or of any Federal or state regulatory
body, administrative agency or other governmental instrumentality having
jurisdiction over Key Bank USA, National Association or its properties.
(e) NO PROCEEDINGS. There are no proceedings or, to its best
knowledge, investigations pending against Key Bank USA, National Association or,
to its best knowledge, threatened against Key Bank USA, National Association
before any court, regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over Key Bank USA, National Association or
its properties: (i) asserting the invalidity of this Agreement, (ii) seeking to
prevent the consummation of any of the transactions contemplated by this
Agreement or (iii) seeking any determination or ruling that could reasonably be
expected to have a material and adverse effect on the performance by Key Bank
USA, National Association of its obligations under, or the validity or
enforceability of, this Agreement.
(f) ALL CONSENTS. All authorizations, consents, orders or approvals of
or registrations or declarations with any court, regulatory body, administrative
agency or other government instrumentality required to be obtained, effected or
given by Key Bank USA, National Association in connection with the execution and
delivery by Key Bank USA, National Association of this Agreement and the
performance by Key Bank USA, National Association of the transactions
contemplated by this Agreement, and have been duly obtained, effected or given
and are in full force and effect.
(g) RESOLUTIONS. The resolutions of the Board of Directors of Key Bank
USA, National Association approving this Agreement and all documents relating
thereto are and shall be continuously reflected in the minutes of the Board of
Directors of Key Bank USA, National Association. This Agreement and all
documents relating thereto are and shall be, continuously from the time of their
respective execution by Key Bank USA, National Association, official records of
Key Bank USA, National Association.
SECTION 4.02. EXISTENCE. During the term of this Agreement, the Seller
will keep in full force and effect its existence, rights and franchises as a
national banking association under the laws of the jurisdiction of its
organization, subject, however, to Section 4.05 hereof.
SECTION 4.03. LIABILITY OF SELLER; INDEMNITIES. The Seller shall be
liable in accordance herewith only to the extent of the obligations specifically
undertaken by the Seller under this Agreement.
(a) The Seller shall indemnify, defend and hold harmless each of the
Depositor Eligible Lender Trustee and the Purchaser and its officers, directors,
employees and agents from and against any taxes that may at any time be asserted
against any such Person with respect to the transactions contemplated herein
including any sales, gross receipts, general corporation, tangible personal
property, privilege or license taxes and costs and expenses in defending against
the same (but not including any taxes imposed with respect to (i) the subsequent
sale of the KBUSA Financed Student Loans by the Purchaser and the Depositor
Eligible Lender Trustee to the Trust and the Eligible Lender Trustee; (ii)
ownership of such student loans; and/or (iii) distributions on the Notes).
(b) The Seller shall indemnify, defend and hold harmless each of the
Depositor Eligible Lender Trustee and the Purchaser, and its officers,
directors, employees and agents from and against any and all costs, expenses,
losses, claims, damages and liabilities arising out of, or imposed upon such
Person through the Seller's willful misfeasance, bad faith or negligence in the
performance of its duties under this Agreement, or by reason of reckless
disregard of its obligations and duties under this Agreement.
(c) The Seller shall be liable as primary obligor for, and shall
indemnify, defend and hold harmless each of the Depositor Eligible Lender
Trustee and the Purchaser and its officers, directors, employees and agents from
and against, all costs, expenses, losses, claims, damages, obligations and
liabilities arising out of, incurred in connection with or relating to this
Agreement, except to the extent that such cost, expense, loss, claim, damage,
obligation or liability (i) shall be due to the willful misfeasance, bad faith
or negligence of the Purchaser or the Depositor Eligible Lender Trustee, as
applicable, or (ii) shall arise from the breach by the Depositor Eligible Lender
Trustee of any of its representations and warranties as set forth in Section
7.15 of this Agreement. In the event of any claim, action or proceeding for
which indemnity will be sought pursuant to this paragraph, the Depositor
Eligible Lender Trustee's or Purchaser's choice of legal counsel, as applicable,
shall be subject to the approval of the Seller, which approval shall not be
unreasonably withheld.
(d) The Seller shall pay any and all taxes levied or assessed upon all
or any part of the KBUSA Assets (other than those taxes expressly excluded from
the Seller's responsibilities pursuant to Section 4.03(a) above).
Indemnification under this Section shall survive the termination of
this Agreement, and shall include reasonable fees and expenses of counsel and
expenses of litigation. If the Seller shall have made any indemnity payments
pursuant to this Section and the Person to or on behalf of whom such payments
are made thereafter shall collect any of such amounts from others, such Person
shall promptly repay such amounts to the Seller, without interest.
SECTION 4.04. [Reserved.]
SECTION 4.05. MERGER OR CONSOLIDATION OF, OR ASSUMPTION OF THE
OBLIGATIONS OF, SELLER. Any Person (a) into which the Seller may be merged or
consolidated, (b) which may result from any merger or consolidation to which the
Seller shall be a party or (c) which may succeed to the properties and assets of
the Seller substantially as a whole, shall be the successor to the Seller
without the execution or filing of any document or any further act by the
Depositor Eligible Lender Trustee or the Purchaser; PROVIDED, HOWEVER, that the
Seller hereby covenants that it will not consummate any of the foregoing
transactions except upon satisfaction of the following: (i) the surviving
Seller, if other than Key Bank USA, National Association (or an affiliate
thereof), executes an agreement of assumption to perform every obligation of the
Seller under this Agreement, (ii) immediately after giving effect to such
transaction, no representation or warranty made pursuant to Section 3.01 or 4.01
shall have been breached, (iii) the surviving Seller, if other than Key Bank
USA, National Association (or an affiliate thereof), shall have delivered to the
Depositor Eligible Lender Trustee, the Securities Insurer, the Indenture Trustee
and the Purchaser an Officers' Certificate and an Opinion of Counsel each
stating that such consolidation, merger or succession and such agreement of
assumption comply with this Section and that all conditions precedent, if any,
provided for in this Agreement relating to such transaction have been complied
with, and that the Rating Agency Condition shall have been satisfied with
respect to such transaction, (iv) the surviving Seller shall have a consolidated
net worth at least equal to that of the predecessor Seller, (v) such transaction
will not result in a material adverse federal or state tax consequence to the
Issuer or the holders of the Notes and (vi) unless Key Bank USA, National
Association (or an affiliate thereof) is the surviving entity, the Seller shall
have delivered to the Depositor Eligible Lender Trustee an Opinion of Counsel
either (A) stating that, in the opinion of such counsel, all financing
statements and continuation statements and amendments thereto have been executed
and filed that are necessary fully to preserve and protect the interests of the
Depositor Eligible Lender Trustee and the Purchaser in the KBUSA Financed
Student Loans and reciting the details of such filings, or (B) stating that, in
the opinion of such counsel, no such action shall be necessary to preserve and
protect such interests.
SECTION 4.06. LIMITATION ON LIABILITY OF SELLER AND OTHERS. The Seller
and any director or officer or employee or agent of the Seller may rely in good
faith on the advice of counsel or on any document of any kind, prima facie
properly executed and submitted by any Person respecting any matters arising
hereunder (provided that such reliance shall not limit in any way the Seller's
obligations under Section 3.02). The Seller shall not be under any obligation to
appear in, prosecute or defend any legal action that shall not be incidental to
its obligations under this Agreement, and that in its opinion may involve it in
any expense or liability.
ARTICLE V
THE PURCHASER
SECTION 5.01. REPRESENTATIONS OF PURCHASER. The Purchaser makes the
following representations on which the Seller is deemed to have relied in
selling the KBUSA Financed Student Loans to Depositor Eligible Lender Trustee on
behalf of the Purchaser hereunder. The representations speak as of the execution
and delivery of this Agreement and as of the Closing Date, in the case of the
KBUSA Initial Financed Student Loans, and as of the applicable Subsequent
Transfer Date, in the case of the KBUSA Additional Student Loans, but shall
survive the sale of the KBUSA Financed Student Loans to the Depositor Eligible
Lender Trustee on behalf of the Purchaser and the subsequent transfer of such
Student Loans to the Issuer and the Eligible Lender Trustee.
(a) ORGANIZATION AND GOOD STANDING. The Purchaser is duly organized
and validly existing as a limited liability company in good standing under the
laws of the State of Delaware with the power and authority to own its properties
and to conduct its business as such properties are currently owned and such
business is presently conducted, and to execute, deliver and perform its
obligations under this Agreement.
(b) DUE QUALIFICATION. The Purchaser is duly qualified to do business
and has obtained all necessary licenses and approvals in all jurisdictions in
which the ownership or lease of property or the conduct of its business shall
require such qualifications.
(c) POWER AND AUTHORITY OF THE PURCHASER. The Purchaser has the
corporate power and authority to execute and deliver this Agreement and to carry
out its terms; and the execution, delivery and performance of this Agreement
have been duly authorized by the Purchaser by all necessary corporate action.
(d) BINDING OBLIGATION. This Agreement constitutes a legal, valid and
binding obligation of the Depositor, enforceable in accordance with its terms,
subject to applicable bankruptcy, insolvency, reorganization and similar laws
relating to creditors' rights generally and subject to general principles of
equity.
(e) NO VIOLATION. The consummation of the transactions contemplated by
this Agreement and the fulfillment of the terms hereof shall not conflict with,
result in any breach of any of the terms and provisions of, nor constitute (with
or without notice or lapse of time or both) a default under the limited
liability company agreement or other organizational document of the Purchaser,
or any indenture, agreement or other instrument to which the Purchaser is a
party or by which it shall be bound nor result in the creation or imposition of
any Lien upon any of its properties pursuant to the terms of any such indenture,
agreement or other instrument (other than this Agreement); which breach or
default would reasonably be expected to have a material adverse effect on the
condition of the Purchaser, financial or otherwise, or adversely affect the
transactions contemplated by this Agreement; nor violate any law or, to the
knowledge of the Purchaser, any order, rule or regulation applicable to the
Purchaser of any court or of any Federal or state regulatory body,
administrative agency or other governmental instrumentality having jurisdiction
over the Purchaser or its properties.
(f) NO PROCEEDINGS. There are no proceedings, or, to the Purchaser's
best knowledge, investigations pending, or, to the Purchaser's best knowledge,
threatened against the Purchaser, before any court, regulatory body,
administrative agency or other governmental instrumentality having jurisdiction
over the Purchaser or its properties: (i) asserting the invalidity of this
Agreement, (ii) seeking to prevent the consummation of any of the transactions
contemplated by this Agreement or (iii) seeking any determination or ruling that
could reasonably be expected to have a material and adverse effect on the
performance by the Purchaser of its obligations under, or the validity or
enforceability of, this Agreement.
ARTICLE VI
PURCHASE TERMINATION EVENTS
SECTION 6.01. PURCHASE TERMINATION. If an Insolvency Event occurs with
respect to either the Seller or the Purchaser, the Seller shall immediately, on
the day it receives notice of such Insolvency Event, cease transferring KBUSA
Financed Student Loans to the Depositor Eligible Lender Trustee on behalf of the
Purchaser, and, in the case of an Insolvency Event of the Seller, shall give
prompt notice thereof to the Depositor Eligible Lender Trustee and the
Purchaser. The Purchaser shall give prompt notice to the Depositor Eligible
Lender Trustee and the Seller of the occurrence of an Insolvency Event of the
Purchaser.
ARTICLE VII
MISCELLANEOUS
SECTION 7.01. AMENDMENT. This Agreement may be amended by the parties
hereto, with the consent of Eligible Lender Trustee on behalf of the Issuer, the
Indenture Trustee and, with respect to any amendment affecting the KBUSA Group
II Student Loan or the Group II Notes or the Securities Insurer, as evidenced by
an Opinion of Counsel of the Seller (who shall not be an employee of KBUSA or
any of its Affiliates) regarding the lack of changes to any legal rights and
remedies of the Group II Noteholders or the Securities Insurer, and a
confirmation from each Rating Agency that such amendment will not result in the
downgrading of the then current ratings of any of the Group II Notes (without
regard to the Group II Notes Guaranty Insurance Policy), and so long as no
Securities Insurer Default has occurred and is continuing, the Securities
Insurer, but without the consent of the Swap Counterparty or any of the holders
of Notes, 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 of modifying in
any manner the rights of the holders of Notes; PROVIDED, HOWEVER, that such
action shall not, as evidenced by an Opinion of Counsel delivered to the
Eligible Lender Trustee on behalf of the Issuer, the Indenture Trustee, the
Securities Insurer (if consent by such party is required) and the Swap
Counterparty, adversely affect in any material respect the interests of any
holder of Notes, the Securities Insurer or the Swap Counterparty.
This Agreement may also be amended from time to time by the parties
hereto, with the consent of the Eligible Lender Trustee on behalf of the Issuer,
the Indenture Trustee, the Swap Counterparty (which shall not be unreasonably
withheld), a majority in interest of the Group I Controlling Parties (but only
with respect to any amendment affecting the KBUSA Group I Student Loans or the
Group I Notes, as evidenced by an Opinion of Counsel) and a majority in interest
of the Group II Controlling Parties (but only with respect to any amendment
affecting the KBUSA Group II Student Loans or the Group II Notes or the
Securities Insurer, as evidenced by an Opinion of Counsel of the Seller (who
shall not be an employee of KBUSA or any of its Affiliates) regarding the lack
of changes to any legal rights and remedies of the Group II Noteholders or the
Securities Insurer, and a confirmation from each Rating Agency that such
amendment will not result in the downgrading of the then current ratings of any
of the Group II Notes (without regard to the Group II Notes Guaranty Insurance
Policy), 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 holders of any Class of Notes; 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 with respect to KBUSA
Financed Student Loans or distributions that shall be required to be made for
the benefit of the holders of Notes or (b) reduce the aforesaid percentage of
the Outstanding Amount of the related Class or Classes of Notes, which are
required to consent to any such amendment, without the consent of all
outstanding holders of all Classes of Notes affected by such amendment
(notwithstanding anything to the contrary contained in the Indenture or the
Trust Agreement, such rights of consent granted to the holders of the Notes
contained in clauses (a) and (b) of this proviso shall not be exercisable by the
Group I Controlling Noteholders on behalf of all of the Group I Noteholders or
by the Securities Insurer on behalf of all of the Group II Noteholders).
Promptly after the execution of any such amendment or consent (or, in
the case of the Rating Agencies, five Business Days prior thereto), the Seller
shall furnish written notification of the substance of such amendment or consent
to each holder of Certificates (if not the Purchaser), the Eligible Lender
Trustee, the Issuer, the Indenture Trustee, the Securities Insurer, the Swap
Counterparty and each of the Rating Agencies.
It shall not be necessary for the consent of holders of Notes 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.
Prior to the execution of any amendment to this Agreement, the
Depositor Eligible Lender Trustee, the Indenture Trustee and the Purchaser shall
each 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 and the
Opinion of Counsel referred to in Section 7.02(d)(1). Neither the Purchaser nor
the Depositor Eligible Lender Trustee shall be obligated to enter into any such
amendment which affects the Purchaser's or the Depositor Eligible Lender
Trustee's own rights, duties or immunities under this Agreement or otherwise.
SECTION 7.02. PROTECTION OF INTERESTS IN KBUSA ASSETS. (a) The Seller
shall execute and file such financing statements and cause to be executed and
filed such continuation statements, all in such manner and in such places as may
be required by law fully to preserve, maintain, and protect the interest of the
Depositor Eligible Lender Trustee, the Indenture Trustee, the Securities Insurer
and the Purchaser in the KBUSA Financed Student Loans and in the proceeds
thereof. The Seller shall deliver (or cause to be delivered) to the Depositor
Eligible Lender Trustee, the Indenture Trustee and the Securities Insurer
file-stamped copies of, or filing receipts for, any document filed as provided
above, as soon as available following such filing.
(b) The Seller shall not change its name, identity or corporate
structure in any manner that would, could or might make any financing statement
or continuation statement filed in accordance with paragraph (a) above seriously
misleading within the meaning of Section 9-402(7) (or a comparable section) of
the UCC, unless it shall have given the Depositor Eligible Lender Trustee, the
Indenture Trustee and the Securities Insurer at least five days' prior written
notice thereof and shall have promptly filed (or cause to be filed) appropriate
amendments to all previously filed financing statements or continuation
statements.
(c) The Seller shall have an obligation to give the Depositor Eligible
Lender Trustee, the Indenture Trustee and the Securities Insurer at least 60
days' prior written notice of any relocation of its principal executive office
or change in the jurisdiction of organization if, as a result of such relocation
or change, the applicable provisions of the UCC would require the filing of any
amendment of any previously filed financing or continuation statement or of any
new financing statement and shall promptly file (or cause to be filed) any such
amendment.
(d) The Seller shall deliver to the Depositor Eligible Lender Trustee
on behalf of the Purchaser, the Indenture Trustee and the Securities Insurer:
(1) promptly after the execution and delivery of this Agreement and of
each amendment thereto and on each Subsequent Transfer Date, an Opinion of
Counsel either (A) stating that, in the opinion of such counsel, all financing
statements and continuation statements have been executed and filed that are
necessary fully to preserve and protect the interest of the Depositor Eligible
Lender Trustee on behalf of the Purchaser, the Indenture Trustee and the
Securities Insurer in the KBUSA Financed Student Loans, and reciting the details
of such filings or referring to prior Opinions of Counsel in which such details
are given, or (B) stating that, in the opinion of such counsel, no such action
shall be necessary to preserve and protect such interest; and
(2) within 120 days after the beginning of each calendar year
commencing April 30, 2002, an Opinion of Counsel, dated as of a date during such
120-day period, either (A) stating that, in the opinion of such counsel, all
financing statements and continuation statements have been executed and filed
that are necessary fully to preserve and protect the interest of the Depositor
Eligible Lender Trustee on behalf of the Purchaser in the KBUSA Financed Student
Loans, and reciting the details of such filings or referring to prior Opinions
of Counsel in which such details are given, or (B) stating that, in the opinion
of such counsel, no such action shall be necessary to preserve and protect such
interest; PROVIDED that a single Opinion of Counsel may be delivered in
satisfaction of the foregoing requirement and that of Section 3.06(b) of the
Indenture.
Each Opinion of Counsel referred to in clause (1) or (2) above shall
specify (as of the date of such opinion and given all applicable laws as in
effect on such date) any action necessary to be taken in the following year to
preserve and protect such interest.
SECTION 7.03. NOTICES. All demands, notices, instructions, directions
and communications upon or to the Seller, the Purchaser, the Depositor Eligible
Lender Trustee, the Indenture Trustee, the Securities Insurer or the Rating
Agencies under this Agreement shall be in writing, personally delivered or
mailed by certified mail, return receipt requested, (or in the form of telex or
facsimile notice, followed by written notice delivered as aforesaid) and shall
be deemed to have been duly given upon receipt (a) in the case of the Seller, to
Key Bank USA, National Association, 000 Xxxxxxxx Xxxxxx, Xxxxxx Xxxxx,
Xxxxxxxxx, Xxxx 00000, Attention: Key Education Resources, KeyCorp Student Loan
Trust 2001-A (telephone: (000) 000-0000; facsimile: (000) 000-0000), (b) in the
case of the Purchaser, to Key Consumer Receivables LLC, c/o Key Bank USA,
National Association, 000 Xxxxxxxx Xxxxxx, Xxxxxx Xxxxx, Xxxxxxxxx, Xxxx 00000,
Attention: Key Education Resources, KeyCorp Student Loan Trust 2001-A
(telephone: (000) 000-0000; facsimile: (000) 000-0000), (c) in the case of the
Depositor Eligible Lender Trustee, to Bank One, National Association, 0 Xxxx Xxx
Xxxxx, Xxxxx XX0-0000, Xxxxxxx, Xxxxxxxx, 00000, Attention: Corporate Trust
Administration (telephone: (000) 000-0000; facsimile: (000) 000-0000, (d) in the
case of Moody's, to Xxxxx'x Investors Service, Inc., 00 Xxxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: ABS Monitoring Department (telephone: (000) 000-0000;
facsimile: (000) 000-0000), (e) in the case of Fitch, to Fitch, Inc., Xxx Xxxxx
Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, (telephone: (000) 000-0000; facsimile:
(000) 000-0000), (f) in the case of S&P to Standard & Poor's, 00 Xxxxx Xxxxxx,
Xxxxxxxxx: Asset Backed Surveillance Department (telephone (000) 000-0000;
facsimile (000) 000-0000), (g) in the case of the Indenture Trustee, at its
Corporate Trust Office, and (h) in the case of the Securities Insurer, to MBIA
Insurance Corporation, 000 Xxxx Xxxxxx, Xxxxxx, Xxx Xxxx 00000, Attention:
Insured Portfolio Management--SF (telephone (000) 000-0000; facsimile (914)
765-3810) as to each of the foregoing, at such other address as shall be
designated by written notice to the other parties.
SECTION 7.04. ASSIGNMENT OF AGREEMENT. This Agreement may not be
assigned by the Seller. This Agreement may only be assigned by the Purchaser
pursuant to the Sale and Servicing Agreement. This Agreement may be assigned by
the Depositor Eligible Lender Trustee only to any permitted successors and
assigns or otherwise in accordance with Section 7.10.
SECTION 7.05. LIMITATIONS ON RIGHTS OF OTHERS. The provisions of this
Agreement are solely for the benefit of (i) the parties hereto and (ii) the
Issuer, the Eligible Lender Trustee, the Indenture Trustee, the Securities
Insurer, the Swap Counterparty and the holders of the Notes, as intended third
party beneficiaries, and nothing in this Agreement, whether express or implied,
shall be construed to give to any other Person any legal or equitable right,
remedy or claim in the KBUSA Assets or under or in respect of this Agreement or
any covenants, conditions or provisions contained herein.
SECTION 7.06. SEVERABILITY. Any provision of this Agreement that 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.
SECTION 7.07. 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 7.08. 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 7.09. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 7.10. ASSIGNMENT. The Seller hereby acknowledges and consents
to any mortgage, pledge, assignment and grant by the Purchaser to the Issuer and
by the Issuer to the Indenture Trustee pursuant to the Indenture for the benefit
of the holders of the Notes of a security interest in all right, title and
interest of the Purchaser in, to and under the KBUSA Financed Student Loans
and/or the assignment of any or all of the Purchaser's rights and obligations
hereunder to the Issuer and by the Issuer to the Indenture Trustee.
SECTION 7.11. NONPETITION COVENANTS. (a) Notwithstanding any prior
termination of this Agreement, neither the Seller nor the Depositor Eligible
Lender Trustee shall, prior to the date which is one year and one day after the
termination of this Agreement with respect to the Purchaser, acquiesce, petition
or otherwise invoke or cause the Purchaser to invoke the process of any court or
government authority for the purpose of commencing or sustaining a case against
the Purchaser under any Federal or state bankruptcy, insolvency or similar law
or appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator
or other similar official of the Purchaser or any substantial part of its
property, or ordering the winding up or liquidation of the affairs of the
Purchaser.
(b) Notwithstanding any prior termination of this Agreement, neither
the Purchaser nor the Depositor Eligible Lender Trustee shall, prior to the date
which is one year and one day after the termination of this Agreement with
respect to the Seller, acquiesce, petition or otherwise invoke or cause the
Seller to invoke the process of any court or government authority for the
purpose of commencing or sustaining a case against the Seller under any
insolvency or similar law or appointing a receiver, liquidator, assignee,
trustee, custodian, sequestrator or other similar official of the Seller or any
substantial part of its property, or ordering the winding up or liquidation of
the affairs of the Seller.
SECTION 7.12. LIMITATION OF LIABILITY OF DEPOSITOR ELIGIBLE LENDER
TRUSTEE. (a) Notwithstanding anything contained herein to the contrary, this
Agreement has been signed by Bank One, National Association, not in its
individual capacity but solely in its capacity as Depositor Eligible Lender
Trustee of the Purchaser and, subject to paragraph (b) below, in no event shall
Bank One, National Association, in its individual capacity have any liability
for the representations, warranties, covenants, agreements or other obligations
of the Purchaser hereunder or in any of the certificates, notices or agreements
delivered pursuant hereto as to all of which recourse shall be had solely to the
assets of the Purchaser.
(b) Notwithstanding any other provision in this Agreement, nothing in
this Agreement shall be construed to limit the legal responsibility of the
Depositor Eligible Lender Trustee to the U.S. Secretary of Education or a
Guarantor for any violations of statutory or regulatory requirements that may
occur with respect to loans held by the Depositor Eligible Lender Trustee
pursuant to, or to otherwise comply with their obligations under, the Higher
Education Act or implementing regulations.
SECTION 7.13. CONSENT OF THE SECURITIES INSURER. Whenever the consent
or approval of the Securities Insurer is required under this Agreement, such
consent or approval shall be reasonably given.
SECTION 7.14. INTENDED THIRD PARTY BENEFICIARIES. The Seller and the
Purchaser hereby acknowledge, consent and agree that each of the Issuer, the
Securities Insurer, the Swap Counterparty and the Indenture Trustee are intended
third party beneficiaries of this Agreement. The Seller hereby acknowledge,
consent and agree that all of the rights and remedies of the Purchaser under
this Agreement will be assigned to the Issuer and by the Issuer to the Indenture
Trustee (on behalf of the Issuer) pursuant to the Sale and Servicing Agreement
and the Indenture. The Seller hereby acknowledges, consents and agrees that,
subsequent to such assignments, all of the rights and remedies of the Purchaser
may be exercised directly by the Indenture Trustee (on behalf of the Issuer)
against the Seller.
SECTION 7.15. REPRESENTATIONS AND WARRANTIES. The Depositor Eligible
Lender Trustee hereby represents and warrants to the Seller, the Depositor, for
the benefit of the holder of the Trust Certificate, the Securities Insurer and
the Swap Counterparty, that:
(a) It is a national banking association duly organized and validly
existing in good standing under the laws of the United States and having an
office located within the State of Delaware. It has all requisite corporate
power and authority to execute, deliver and perform its obligations under this
Agreement.
(b) It has taken all corporate action necessary to authorize the
execution and delivery by it of this Agreement, and this Agreement will be
executed and delivered by one of its officers who is duly authorized to execute
and deliver this Agreement on its behalf.
(c) Neither the execution nor the delivery by it of this Agreement,
nor the consummation by it of the transactions contemplated hereby nor
compliance by it with any of the terms or provisions hereof will contravene any
Federal or Delaware state law, governmental rule or regulation governing the
banking or trust powers of the Depositor Eligible Lender Trustee or any judgment
or order binding on it, or constitute any default under its charter documents or
by-laws or any indenture, mortgage, contract, agreement or instrument to which
it is a party or by which any of its properties may be bound.
(d) It is an "eligible lender" as such term is defined in Section
435(d) of the Higher Education Act, for purposes of holding legal title to the
KBUSA Financed Student Loans as contemplated by this Agreement, has obtained a
lender identification number in connection therewith from the Department and has
in effect a Guarantee Agreement with each of the Guarantors with respect to the
KBUSA Financed Student Loans.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective officers as of the day and year first above
written.
KEY BANK USA, NATIONAL ASSOCIATION,
as Seller,
By: /s/ Xxxxx X. Xxxxx
-----------------------------------
Name: Xxxxx X. Xxxxx
Title: Senior Vice President
KEY CONSUMER RECEIVABLES LLC,
as Purchaser,
By: /s/ Xxxxx X. Xxxxx
-----------------------------------
Name: Xxxxx X. Xxxxx
Title: President
BANK ONE, NATIONAL ASSOCIATION,
as Depositor Eligible Lender Trustee,
By: /s/ Xxxxx X. Xxxxxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Authorized Officer
APPENDIX A
DEFINITIONS AND USAGE
[SEE APPENDIX A OF THE
SALE AND SERVICING AGREEMENT]
SCHEDULE A
PART I:
Schedule of KBUSA Initial Financed Student Loans
that are KBUSA Group I Student Loans:
Delivered to the Indenture Trustee.
PART II:
Schedule of KBUSA Initial Financed Student Loans
that are KBUSA Group II Student Loans:
Delivered to the Indenture Trustee.
SCHEDULE B
PART I:
Schedule of KBUSA Additional Student Loans
that are KBUSA Group I Student Loans:
To be included on Schedule A to each related
KBUSA Subsequent Transfer Agreement
PART II:
Schedule of KBUSA Additional Student Loans
that are KBUSA Group II Student Loans:
To be included on Schedule A to each related
KBUSA Subsequent Transfer Agreement
EXHIBIT A
ASSIGNMENT
For value received, in accordance with the KBUSA Student Loan Transfer
Agreement (the "KBUSA Student Loan Transfer Agreement") dated as of September 1,
2001, among Key Bank USA, National Association, as seller (the "Seller"), Key
Consumer Receivables LLC, as purchaser (the "Purchaser" or "Depositor"), and
Bank One, National Association, not in its individual capacity but solely as
eligible lender trustee for the Depositor (the "Depositor Eligible Lender
Trustee"), the undersigned does hereby sell, assign, transfer and otherwise
convey unto the Purchaser (with respect to the beneficial ownership interest),
and the Depositor Eligible Lender Trustee on behalf of the Depositor (with
respect to legal title), without recourse (subject to the obligations set forth
in the KBUSA Student Loan Transfer Agreement), all right, title and interest of
the undersigned in and to (i) the KBUSA Initial Financed Student Loans and all
obligations of the Obligors thereunder including all moneys paid thereunder on
or after the Cutoff Date, (ii) the rights of the Seller set forth in Section
2.01(ii) of the KBUSA Student Loan Transfer Agreement, and (iii) the proceeds of
any and all of the foregoing (including proceeds derived from the voluntary or
involuntary conversion of any of the KBUSA Initial Financed Student Loans into
cash or other liquidated property, such as proceeds from the applicable
Guarantee Agreement. The foregoing sale does not constitute and is not intended
to result in any assumption by the Purchaser or the Depositor Eligible Lender
Trustee of any obligation of the Seller to the Obligors with respect to the
KBUSA Initial Financed Student Loans or any other person in connection with the
KBUSA Initial Financed Student Loans or any agreement or instrument relating to
any of them.
In addition, the undersigned, by execution of this instrument, hereby
endorses the promissory notes evidencing each KBUSA Initial Financed Student
Loan described in Schedule A to the KBUSA Student Loan Transfer Agreement in
favor of the Depositor Eligible Lender Trustee on behalf of the Purchaser,
without recourse (subject to the obligations set forth in the KBUSA Student Loan
Transfer Agreement ) against the undersigned. This endorsement may be effected
by attaching a facsimile hereof to each or any of such promissory notes.
This Assignment is made pursuant to and upon the representations,
warranties and agreements on the part of the undersigned contained in the KBUSA
Student Loan Transfer Agreement and is to be governed by the KBUSA Student Loan
Transfer Agreement .
Capitalized terms used but not defined herein shall have the meaning
assigned to them in Appendix A to the KBUSA Student Loan Transfer Agreement ,
which also contains rules as to usage that shall be applicable herein.
IN WITNESS WHEREOF, the undersigned has caused this Assignment to be
duly executed as of September 14, 2001.
KEY BANK USA, NATIONAL ASSOCATION,
as Seller
By:
-----------------------------------
Name: Xxxxx X. Xxxxx
Title: Senior Vice President
BANK ONE, NATIONAL ASSOCIATION,
as Depositor eligible lender trustee for
the Purchaser
By:
-----------------------------------
Name:
Title:
EXHIBIT B
KBUSA SUBSEQUENT TRANSFER AGREEMENT
TRANSFER No. ____ OF KBUSA ADDITIONAL STUDENT LOANS dated as of
________ ___, 20___ among KEY BANK USA, NATIONAL ASSOCIATION, as seller (the
"Seller"), KEY CONSUMER RECEIVABLES LLC, as purchaser (the "Purchaser"), and
BANK ONE, NATIONAL ASSOCIATION, a national banking association, not in its
individual capacity but solely as eligible lender trustee of the Purchaser (the
"Depositor Eligible Lender Trustee").
W I T N E S S E T H:
WHEREAS the Seller, the Purchaser and the Depositor Eligible Lender
Trustee are parties to the KBUSA Student Loan Transfer Agreement dated as of
September 1, 2001 (as amended or supplemented, the "KBUSA Student Loan Transfer
Agreement");
WHEREAS pursuant to the KBUSA Student Loan Transfer Agreement, the
Seller wishes to convey the KBUSA Additional Student Loans referred to in
Section 2 of this Agreement (the "KBUSA Additional Student Loans") to the
Purchaser (with respect to the beneficial interest) and Depositor Eligible
Lender Trustee on behalf of the Purchaser (with respect to legal title); and
WHEREAS, the Depositor Eligible Lender Trustee and the Purchaser are
willing to accept such conveyance subject to the terms and conditions hereof.
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. DEFINITIONS AND USAGE. Unless otherwise defined herein, capitalized
terms used herein shall have the meanings ascribed to them in Appendix A to the
KBUSA Student Loan Transfer Agreement , which also contains rules of
construction and usage that shall be applicable herein.
In addition, the following terms have the following meanings:
"SUBSEQUENT CUTOFF DATE" means, with respect to each KBUSA Additional
Student Loan, the date specified as such on Schedule A hereto.
"SUBSEQUENT TRANSFER DATE" means, with respect to the KBUSA Additional
Student Loans, ______________, ____.
2. SCHEDULES OF FINANCED STUDENT LOANS. Attached hereto as Schedule A
is a supplement to Schedule B to the KBUSA Student Loan Transfer Agreement
listing the KBUSA Additional Student Loans to be conveyed on the Subsequent
Transfer Date to the Depositor Eligible Lender Trustee on behalf of the
Depositor pursuant to this Agreement.
3. CONVEYANCE OF KBUSA ADDITIONAL STUDENT LOANS. In consideration of
the Depositor's delivery to or upon the order of the Seller of $__________, the
Seller does hereby sell, transfer, assign, set over and otherwise convey,
without recourse (except as expressly provided in the KBUSA Student Loan
Transfer Agreement ), to the Depositor Eligible Lender Trustee on behalf of the
Purchaser:
(a) all right, title and interest of the Seller in and to each KBUSA
Additional Student Loan, and all moneys received thereon, on and after the
related Subsequent Cutoff Date; and
(b) the proceeds of any and all of the foregoing.
4. REPRESENTATIONS AND WARRANTIES OF THE SELLER . The Seller hereby
represents and warrants to the Issuer as of the date of this Agreement and as of
the Subsequent Transfer Date that:
(a) ORGANIZATION AND GOOD STANDING. The Seller is duly organized and
validly existing as a national banking association in good standing under
the laws of the United States of America, with the power and authority to
own its properties and to conduct its business as such properties are
currently owned and such business is presently conducted, and had at all
relevant times, and has, the power, authority and legal right to acquire
and own the KBUSA Additional Student Loans.
(b) POWER AND AUTHORITY. The Seller has the corporate power and
authority to execute and deliver this Agreement and to carry out its terms;
the Seller has full corporate power and corporate authority to sell and
assign the property to be sold and assigned to and deposited with the
Purchaser (or with the Depositor Eligible Lender Trustee on behalf of the
Purchaser) and the Seller has duly authorized such sale and assignment to
the Purchaser (or to the Depositor Eligible Lender Trustee on behalf of the
Purchaser) by all necessary corporate action; and the execution, delivery
and performance of this Agreement have been duly authorized by the Seller
by all necessary corporate action.
(c) BINDING OBLIGATION. This Agreement constitutes a legal, valid and
binding obligation of the Seller enforceable in accordance with its terms,
subject to applicable bankruptcy, insolvency, reorganization and similar
laws relating to creditors' rights generally or the rights of creditors of
banks, the deposit accounts of which are insured by the FDIC, and subject
to general principles of equity.
(d) NO VIOLATION. The consummation of the transactions contemplated by
this Agreement and the fulfillment of the terms hereof do not conflict
with, result in any breach of any of the terms and provisions of, nor
constitute (with or without notice or lapse of time or both) a default
under, the articles of association or by-laws of Seller, or any indenture,
agreement or other instrument to which the Seller is a party or by which it
shall be bound, which breach or default would reasonably be expected to
have a material adverse effect on the condition of the Seller, financial or
otherwise, or adversely affect the transactions contemplated by this
Agreement; nor result in the creation or imposition of any Lien upon any of
its properties pursuant to the terms of any such indenture, agreement or
other instrument (other than pursuant to the Basic Documents); nor violate
any law or, to the knowledge of the Seller, any order, rule or regulation
applicable to the Seller of any court or of any Federal or State regulatory
body, administrative agency or other governmental instrumentality having
jurisdiction over the Seller or its properties.
(e) NO PROCEEDINGS. There are no proceedings or to its best knowledge
investigations pending against the Seller or, to its best knowledge,
threatened against the Seller, before any court, regulatory body,
administrative agency or other governmental instrumentality having
jurisdiction over the Seller or its properties: (i) asserting the
invalidity of this Agreement or the KBUSA Student Loan Transfer Agreement,
(ii) seeking to prevent the consummation of any of the transactions
contemplated by this Agreement or the KBUSA Student Loan Transfer Agreement
or (iii) seeking any determination or ruling that could reasonably be
expected to have a material and adverse effect on the performance by the
Seller of its obligations under, or the validity or enforceability of, this
Agreement or the KBUSA Student Loan Transfer Agreement.
(f) ALL CONSENTS. All authorizations, consents, orders or approvals of
or registrations or declarations with any court, regulatory body,
administrative agency or other government instrumentality required to be
obtained, effected or given by the Seller in connection with the execution
and delivery by the Seller of this Agreement and the performance by the
Seller of the transactions contemplated by this Agreement have been duly
obtained, effected or given and are in full force and effect.
(g) PRINCIPAL BALANCE. The aggregate principal balance of the KBUSA
Additional Student Loans listed on Schedule A attached hereto and conveyed
to the Depositor Eligible Lender Trustee on behalf of the Purchaser
pursuant to this Agreement as of their respective Subsequent Cutoff Dates
is $___________.
5. CONDITIONS PRECEDENT. The obligation of the Purchaser to acquire
the KBUSA Additional Student Loans hereunder is subject to the satisfaction, on
or prior to the Subsequent Transfer Date, of the following conditions precedent:
(a) REPRESENTATIONS AND WARRANTIES. Each of the representations and
warranties made by the Seller in Section 4 of this Agreement, by the Seller
in Section 3.01 of the KBUSA Student Loan Transfer Agreement with respect
to such KBUSA Additional Student Loans, and by the Purchaser in Section
5.01 of KBUSA Student Loan Transfer Agreement, shall be true and correct as
of the date of this Agreement and as of the Subsequent Transfer Date.
(b) SALE AND SERVICING AGREEMENT CONDITIONS. Each of the conditions
set forth in Section 2.02(b) of the KBUSA Student Loan Transfer Agreement
shall have been satisfied.
(c) DELIVERY OF ASSIGNMENT. The Seller shall have delivered an
Assignment substantially in the form of Annex A hereto.
(d) ADDITIONAL INFORMATION. The Seller and the Master Servicer, as
applicable, shall have delivered to the Purchaser such information as was
reasonably requested by the Depositor to satisfy itself as to (i) the
accuracy of the representations and warranties set forth in Section 4 of
this Agreement and in Section 3.01 of the KBUSA Student Loan Transfer
Agreement and (ii) the satisfaction of the conditions set forth in this
Section 5.
6. RATIFICATION OF AGREEMENT. As supplemented by this Agreement, the
KBUSA Student Loan Transfer Agreement is in all respects ratified and confirmed
and KBUSA Student Loan Transfer Agreement as so supplemented by this Agreement
shall be read, taken and construed as one and the same instrument.
7. COUNTERPARTS. This Agreement may be executed in separate
counterparts, each of which when so executed and delivered shall be an original,
but all of which together shall constitute but one and the same instrument.
8. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW
PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
9. HEADINGS. The section headings hereof have been inserted for
convenience of reference only and shall not be construed to affect the meaning,
construction or effect of this Agreement.
10. INTENDED THIRD PARTY BENEFICIARIES. The Seller and the Purchaser
hereby acknowledge, consent and agree that each of the Issuer, the Securities
Insurer, the Swap Counterparty and the Indenture Trustee are intended third
party beneficiaries of this Agreement. The Seller hereby acknowledge, consent
and agree that all of the rights and remedies of the Purchaser under the KBUSA
Student Loan Transfer Agreement and this Agreement have been or will be assigned
to the Issuer and by the Issuer to the Indenture Trustee (on behalf of the
Issuer) pursuant to the Sale and Servicing Agreement and the Indenture. The
Seller hereby acknowledges, consents and agrees that, subsequent to such
assignments, all of the rights and remedies of the Purchaser may be exercised
directly by the Indenture Trustee (on behalf of the Issuer) against the Seller.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered by their respective duly authorized officers as
of the day and the year first above written.
KEY CONSUMER RECEIVABLES LLC,
as Purchaser
By:
-----------------------------------
Name:
Title:
KEY BANK USA, NATIONAL ASSOCIATION,
as Seller
By:
-----------------------------------
Name:
Title:
BANK ONE, NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Depositor Eligible Lender
Trustee,
By:
-----------------------------------
Name:
Title:
SCHEDULE A
TO THE
SUBSEQUENT TRANSFER AGREEMENT NO. ___
[List of KBUSA Additional Group I Student Loans and KBUSA Additional Group
II Student Loans and their related Subsequent Cutoff Dates]
ANNEX A
TO THE KBUSA SUBSEQUENT TRANSFER AGREEMENT
ASSIGNMENT
For value received, in accordance with KBUSA Student Loan Transfer
Agreement (the "KBUSA Student Loan Transfer Agreement") dated as of September 1,
2001, among Key Consumer Receivables LLC, as purchaser (the "Purchaser"), Key
Bank USA, National Association, as seller (the "Seller"), and Bank One, National
Association, not in its individual capacity but solely as eligible lender
trustee for the Purchaser (the "Depositor Eligible Lender Trustee"), and the
Subsequent Transfer Agreement No. dated as of ___, 20___ (the "Subsequent
Transfer Agreement") among the Purchaser, the Seller and the Depositor Eligible
Lender Trustee, the undersigned does hereby sell, assign, transfer and otherwise
convey unto the Purchaser (with respect to the beneficial ownership interest),
and the Depositor Eligible Lender Trustee on behalf of the Depositor (with
respect to legal title), does hereby sell, assign, transfer and otherwise convey
unto the Depositor Eligible Lender Trustee on behalf of the Purchaser, without
recourse (subject to the obligations set forth in the KBUSA Student Loan
Transfer Agreement), all right, title and interest of the undersigned in and to
(i) the KBUSA Additional Student Loans (as such term is defined in the KBUSA
Subsequent Transfer Agreement) and all moneys received thereon, on and after
each applicable Subsequent Cutoff Date (as such term is defined in the KBUSA
Subsequent Transfer Agreement) and (ii) the proceeds of any and all of the
foregoing (including but not limited to proceeds derived from the voluntary or
involuntary conversion of any of the KBUSA Additional Student Loans into cash or
other liquidated property, such as proceeds from the applicable Guarantee
Agreement (as such term is defined in the KBUSA Subsequent Transfer Agreement)).
The foregoing sale does not constitute and is not intended to result in any
assumption by the Depositor Eligible Lender Trustee or the Purchaser of any
obligation of the Seller to the borrowers of such KBUSA Additional Student Loans
or any other person in connection with the KBUSA Additional Student Loans or any
agreement or instrument relating to any of them.
In addition, the undersigned, by execution of this instrument, hereby
endorses the promissory notes evidencing each KBUSA Additional Student Loan
described in Schedule A to the KBUSA Subsequent Transfer Agreement in favor of
the Depositor Eligible Lender Trustee on behalf of the Purchaser, without
recourse (subject to the obligations set forth in the KBUSA Student Loan
Transfer Agreement) against the undersigned. This endorsement may be effected by
attaching a facsimile hereof to each or any of such promissory notes.
This Assignment is made pursuant to and upon the representations,
warranties and agreements on the part of the undersigned contained in the KBUSA
Student Loan Transfer Agreement and the KBUSA Subsequent Transfer Agreement and
is to be governed by the KBUSA Student Loan Transfer Agreement and the KBUSA
Subsequent Transfer Agreement.
Capitalized terms used but not defined herein shall have the meaning
assigned to them in the KBUSA Subsequent Transfer Agreement.
IN WITNESS WHEREOF, the undersigned has caused this Assignment to be
duly executed as of ___, 20___.
KEY BANK USA, NATIONAL ASSOCIATION,
as Seller
By:
-----------------------------------
Name:
Title:
BANK ONE, NATIONAL ASSOCIATION,
not in its individual capacity, but
solely as Depositor Eligible Lender
Trustee
By:
-----------------------------------
Name:
Title:
