EXHIBIT NO. 1.2
KEYCORP STUDENT LOAN TRUST [ ]
$[ ]
ASSET BACKED CERTIFICATES
KEY BANK USA, NATIONAL ASSOCIATION
KEY CONSUMER RECEIVABLES LLC
CERTIFICATE UNDERWRITING AGREEMENT
[ ], [ ]
[ ]
As Representative of the
several Underwriters
[ ]
[ ]
Dear Sirs:
1. Introductory. Key Consumer Receivables LLC, a Delaware limited
liability company, (the "Depositor"), proposes to cause KeyCorp Student Loan
Trust [ ] (the "Trust") to issue and sell $[ ] principal amount of its Class [ ]
Asset Backed Certificates (the "Certificates") to the underwriters named in
Schedule I hereto (the "Underwriters"), for whom you (the "Representative") are
acting as representative. Simultaneously with the issuance and sale of the
Certificates as contemplated herein, the Trust will issue $___________ principal
amount of its Floating Rate Class [ ] Asset Backed Notes (the "Class [ ] Notes")
and $___________ principal amount of its Floating Rate Class [ ] Asset Backed
Notes (the "Class [ ] Notes" and, with the Class [ ] Notes, the "Notes"). The
Notes will be sold pursuant to an underwriting agreement dated the date hereof
(the "Note Underwriting Agreement") between the Depositor, KBUSA and the
Representative.
The Trust was formed, and the Certificates will be issued, pursuant to the
Trust Agreement, dated as of [ ], [ ], as amended and restated by the Amended
and Restated Trust Agreement, dated as of [ ], [ ] (as further amended and
supplemented from time to time, collectively, the "Trust Agreement") among the
Depositor, [ ], as Eligible Lender Trustee (the "Eligible Lender Trustee") and [
], as Delaware trustee (the "Delaware Trustee"). The assets of the Trust include
certain graduate, undergraduate and career education student loans
(collectively, the "Initial Financed Student Loans"). Such Initial Financed
Student Loans will be acquired by the Trust from the Depositor on or about [ ],
[ ] (the "Closing Date"). The Initial Financed Student Loans will be divided
into two pools of student loans, the first group will consist of Financed
Student Loans that are reinsured by the United States Department of Education
(the "Department") (collectively, the "Financed Federal Loans"). The second
group will consist of (i) Financed Student Loans that are not guaranteed by any
party nor reinsured by the Department (collectively "Non-Guaranteed Private
Loans,") and (ii) Financed Student Loans that are not reinsured by the
Department or any other government agency but are guaranteed by a private
guarantor (collectively, "Guaranteed Private Loans" and together with the
Non-Guaranteed Private Loans, the "Financed Private Loans"). All Financed
Student Loans that are part of the first group described above are referred to
as the "Group I Student Loans" and all Financed Student Loans that are part of
the second group described above are referred to as the "Group II Student
Loans." The Depositor will purchase all of the Student Loans from Key Bank USA,
National Association, a national banking association ("KBUSA," and in such
capacity, the "Seller"), pursuant to the Student Loan Transfer Agreement, dated
as of [ ], [ ] (the "Student Loan Transfer Agreement") between KBUSA, the
Depositor and [ ], as eligible lender trustee on behalf of the Depositor (the
"Depositor Eligible Lender Trustee"). The Group I Notes will be entitled to
receive payments of interest and principal primarily from the cashflow on the
Group I Student Loans. The Group II Notes will be entitled to receive payments
of interest and principal from the cashflow on the Group II Student Loans.
The assets of the Trust will further include certain monies due under the
Initial Financed Student Loans on and after [ ], [ ], (the "Cutoff Date"), an
interest rate swap agreement for the Group I Notes (the "Group I Interest Rate
Swap"), in the form of a 1992 ISDA Master Agreement with a schedule and related
confirmation thereto, dated as of [ ], [ ], between the Trust and [KBUSA], as
the swap counterparty (in such capacity, the "Swap Counterparty"), an interest
rate cap agreement for the Group II Notes (the "Group II Cap Agreement"), in the
form of a 1992 ISDA Master Agreement with a schedule and related confirmation
thereto, dated as of [ ], [ ], between the Trust and [KBUSA], as the cap
counterparty (in such capacity, the "Cap Counterparty") and a note guaranty
insurance policy issued by [ ] (the "Securities Insurer") to [ ], a [ ] (the
"Indenture Trustee") for the benefit of the holders of the Class II-[ ] Notes,
the Class II-[ ] Notes and the Class II-[ ] Notes (collectively, the "Group II
Insured Notes") (the "Group II Insured Notes Guaranty Insurance Policy"). The
Initial Financed Student Loans will be sold to the Eligible Lender Trustee on
behalf of the Trust by the Depositor and the Depositor Eligible Lender Trustee
pursuant to the Sale and Servicing Agreement, dated as of [ ], [ ] (as amended
and supplemented from time to time, the "Sale and Servicing Agreement"), among
the Trust, the Eligible Lender Trustee, KBUSA, as master servicer (in such
capacity, the "Master Servicer"), the Depositor and KBUSA, as administrator (in
such capacity, the "Administrator"). The Master Servicer has also entered into
four certain sub-servicing agreements to have the Financed Student Loans
sub-serviced with each of [Pennsylvania Higher Education Assistance Agency, an
agency of the Commonwealth of Pennsylvania] ("[PHEAA]" and, in its capacity as a
sub-servicer, a "Sub-Servicer") and [Great Lakes Educational Loan Services,
Inc., a Wisconsin corporation] ("[Great Lakes]" or a "Sub-Servicer"), two
agreements with [PHEAA] regarding certain of the Group I and Group II Student
Loans and two agreements with [Great Lakes] regarding certain of the Group I and
Group II Student Loans. The Master Servicer will also directly service certain
of the Group II Student Loans, which will be held by [Deutsche Bank National
Trust Company], as custodian (the "Custodian"), pursuant to that certain
Custodial Agreement (the "Custodial Agreement") dated as of [ ], [ ], between
the Master Servicer and the Custodian. The Notes will be issued pursuant to the
Indenture to be dated as of [ ], [ ] (as amended and supplemented from time to
time, the "Indenture"), between the Indenture Trustee and the Trust. To provide
credit support to the Group II Insured Notes only, the Group II Insured Notes
Guaranty Insurance Policy will be issued pursuant to an Insurance Agreement (the
"Insurance Agreement") dated as of [ ], [ ] by and among the Securities Insurer,
the Depositor, KBUSA, (in its capacities as Seller, Master Servicer and
Administrator), the Trust, the Indenture Trustee and the Eligible Lender
Trustee. After the Closing Date (as defined below), the Eligible Lender Trustee,
acting on behalf of the Trust, will acquire certain additional student loans on
or prior to [ ], [ ] (the "Subsequent Student Loans") and on or prior to the end
of the Funding Period (the "Other Student Loans"; and together with the
Subsequent Student Loans and the Initial Financed Student Loans, the "Financed
Student Loans") using amounts in certain accounts owned by the Trust which have
been set aside for such purpose. In addition, the Administrator will perform
certain administrative duties on behalf of the Trust pursuant to the
Administration Agreement, dated as of [ ], [ ] (as amended and supplemented from
time to time, the "Administration Agreement"), among the Indenture Trustee, the
Trust and the Administrator. [KBUSA], as cap provider (in such capacity, the
"Cap Provider"), will enter into basis risk caps with the Trust, one for the
benefit of the holders of the Group I Notes (the "Group I Basis Risk Cap"), and
the other for the benefit of the Group II Notes (the "Group II Basis Risk Cap"
and
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together with the Group I Basis Risk Cap, the "Basis Risk Cap Agreements") each
in the form of a 1992 ISDA Master Agreement with schedules and related
confirmations thereto, each dated as of [ ], [ ], whereunder the related
Noteholders will be entitled, subject to the limitations of the Basis Risk Cap
Agreements, to receive payments from the Cap Provider in the amount of any of
any Noteholders' Interest Index Carryover for such Class of Notes and the Cap
Provider will receive reimbursement for such payments on subsequent Distribution
Dates, but only to the extent funds are available therefor on a subordinated
basis. Pursuant to the Group I Interest Rate Swap, on each Distribution Date the
Trust will be entitled to receive certain payments from the Swap Counterparty,
and/or the Trust will be required to make certain payments to the Swap
Counterparty, in each case on a net basis. [Key Bank National Association], a
national banking association, as put option provider ("[KBNA]" and in such
capacity, the "Put Option Provider") will enter into two put option agreements
with the Trust, one with respect to the Group I Student Loans (the "Group I Put
Option") for the benefit of the holders of the Group I Notes, and the other with
respect to the Group II Student Loans (the "Group II Put Option" and together
with the Group I Put Option, the "Put Options") for the benefit of the holders
of the Group II Notes. Pursuant to each of the Put Options, if the related Put
Option is exercised, the Put Option Provider is obligated to purchase the
related group of Financed Student Loans for the related Put Exercise Price on
the Distribution Date in [ ] [ ]. In addition, to and including [ ], [ ], if the
rate of three-month LIBOR increases to a level specified in the Group II Cap
Agreement, the Trust will be entitled to receive payments from the Cap
Counterparty in the amounts and on the dates set forth in the Group II Cap
Agreement. The Sale and Servicing Agreement, the Indenture, the Trust Agreement,
the Student Loan Transfer Agreements, the Insurance Agreement, the
Administration Agreement, the Custodial Agreement, the [Group I Interest Rate
Swap, the Group II Cap Agreement, the Basis Risk Cap Agreements and the Put
Options] are referred to herein as the "Basic Documents."
Simultaneously with the issuance and sale of the Certificates as
contemplated herein and the sale of the Notes as contemplated in the Note
Underwriting Agreement, and pursuant to the Trust Agreement, the Trust will
issue its Trust Certificate (the "Trust Certificate") representing a fractional
undivided residual ownership interest in the Trust to the Depositor or its
designated affiliate.
Capitalized terms used and not otherwise defined herein shall have the
meanings given them in Appendix A attached hereto.
2. Representations and Warranties of the Depositor and KBUSA. (a) The
Depositor and KBUSA, jointly and severally, represents and warrants to and
agrees with the several Underwriters that:
(i) A registration statement on Form S-3 (Registration No.
333-114367) has been filed with the Securities and Exchange Commission
(the "Commission"), including a related preliminary base prospectus and a
preliminary prospectus supplement, for the registration under the Act of
the offering and sale of the Certificates. KBUSA and the Depositor may
have filed one or more amendments thereto, each of which amendments has
previously been furnished to the Representative. KBUSA and the Depositor
will next file with the Commission (i) after effectiveness of such
registration statement, a final base
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prospectus and a final prospectus supplement relating to the Certificates
in accordance with Rules 430A and 424(b)(1) or (4) under the Securities
Act of 1933, as amended (the "Act"), or (ii) a final base prospectus and a
final prospectus supplement relating to the Notes in accordance with Rules
415 and 424(b)(2) or (5).
The Depositor and KBUSA have included in such registration
statement, as amended at the Effective Date, all information (other than
Rule 430A Information) required by the Act and the rules thereunder to be
included in the Prospectus with respect to the Certificates and the
offering thereof. As filed such final prospectus supplement shall include
all Rule 430A Information, together with all other such required
information, with respect to the Certificates and the offering thereof
and, except to the extent that the Representative shall agree in writing
to a modification, shall be in all substantive respects in the form
furnished to the Representative prior to the Execution Time or, to the
extent not completed at the Execution Time, shall contain only such
specific additional information and other changes (beyond that contained
in the latest preliminary base prospectus and preliminary prospectus
supplement, if any, that have previously been furnished to the
Representative) as KBUSA has advised the Representative, prior to the
Execution Time, will be included or made therein. If the Registration
Statement contains the undertaking specified by Regulation S-K Item
512(a), the Registration Statement, at the Execution Time, meets the
requirements set forth in Rule 415(a)(1)(x).
For purposes of this Certificate Underwriting Agreement (this
"Agreement"), "Effective Time" means the date and time as of which such
registration statement, or the most recent post-effective amendment
thereto, if any, was declared effective by the Commission, and "Effective
Date" means the date of the Effective Time. "Execution Time" shall mean
the date and time that this Agreement is executed and delivered by the
parties hereto. Such registration statement, as amended at the Effective
Time, including all information deemed to be a part of such registration
statement as of the Effective Time pursuant to Rule 430A(b) under the Act,
and including the exhibits thereto and any material incorporated by
reference therein, is hereinafter referred to as the "Registration
Statement." "Base Prospectus" shall mean any prospectus referred to above
contained in the Registration Statement at the Effective Date, including
any Preliminary Prospectus Supplement. "Preliminary Prospectus Supplement"
shall mean the preliminary prospectus supplement to the Base Prospectus
which describes the Certificates and the offering thereof and is used
prior to filing of the Prospectus. "Prospectus" shall mean the prospectus
supplement relating to the Notes that is first filed pursuant to Rule
424(b) after the Execution Time, together with the Base Prospectus or, if
no filing pursuant to Rule 424(b) is required, shall mean the prospectus
supplement relating to the Certificates, including the Base Prospectus,
included in the Registration Statement at the Effective Date. "Rule 430A
Information" means information with respect to the Certificates and the
offering of the Certificates permitted to be omitted from the Registration
Statement when it becomes effective pursuant to Rule 430A. "Rule 415,"
"Rule
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424," "Rule 430A" and "Regulation S-K" refer to such rules or regulations
under the Act. Any reference herein to the Registration Statement, a
Preliminary Prospectus Supplement or the Prospectus shall be deemed to
refer to and include the documents incorporated by reference therein, if
any, pursuant to Item 12 of Form S-3 which were filed under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), on or before the
Effective Date of the Registration Statement or the issue date of the Base
Prospectus, such Preliminary Prospectus Supplement or the Prospectus, as
the case may be; and any reference herein to the terms "amend,"
"amendment" or "supplement" with respect to the Registration Statement,
the Base Prospectus, any Preliminary Prospectus Supplement or the
Prospectus shall be deemed to refer to and include the filing of any
document under the Exchange Act after the Effective Date of the
Registration Statement, or the issue date of the Base Prospectus, to any
Preliminary Prospectus Supplement or the Prospectus, as the case may be,
deemed to be incorporated therein by reference.
(ii) As of the Closing Date (as defined below), KBUSA's
representations and warranties in the Basic Documents to which it is a
party and in the Guarantee Agreement to which [XXXX] is a party will be
true and correct in all material respects.
(iii) This Agreement has been duly authorized, executed and
delivered by KBUSA and the Depositor. The execution, delivery and
performance of this Agreement and the issuance and sale of the
Certificates and compliance with the terms and provisions hereof will not
result in a breach or violation of any of the terms and provisions of, or
constitute a default under, any agreement or instrument to which KBUSA or
the Depositor are a party or by which KBUSA or the Depositor are bound or
to which any of the properties of KBUSA or the Depositor are subject which
could reasonably be expected to have a material adverse effect on the
transactions contemplated herein. The Depositor has full corporate power
and authority to cause the Trust to authorize, issue and sell the
Certificates, all as contemplated by this Agreement.
(iv) Other than as contemplated by this Agreement or as disclosed in
the Prospectus, there is no broker, finder or other party that is entitled
to receive from KBUSA, the Depositor or any of their subsidiaries any
brokerage or finder's fee or other fee or commission as a result of any of
the transactions contemplated by this Agreement.
(v) All legal or governmental proceedings, contracts or documents of
a character required to be described in the Registration Statement or the
Prospectus or to be filed as an exhibit to the Registration Statement have
been so described or filed as required.
(vi) The assignment and delivery of the Initial Financed Student
Loans to the Depositor and the Depositor Eligible Lender Trustee by KBUSA,
pursuant to the Student Loan Transfer Agreement, will vest in the
Depositor and the
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Depositor Eligible Lender Trustee all of KBUSA's right, title and interest
therein, or will result in a first priority perfected security interest
therein, in either case subject to no prior lien, mortgage, security
interest, pledge, adverse claim, charge or other encumbrances.
(vii) [Reserved].
(viii) The Depositor's assignment and delivery of (x) the Initial
Financed Student Loans to the Eligible Lender Trustee on behalf of the
Trust as of the Closing Date, (y) the Subsequent Student Loans on the
related Transfer Date, and (z) the Other Student Loans on the related
Transfer Date, will vest in the Eligible Lender Trustee on behalf of the
Trust all the Depositor's right, title and interest therein, or will
result in a first priority perfected security interest therein, in either
case subject to no prior lien, mortgage, security interest, pledge,
adverse claim, charge or other encumbrance.
(ix) The Trust's assignment of (x) the Initial Financed Student
Loans to the Indenture Trustee as of the Closing Date, (y) the Subsequent
Student Loans on the related Subsequent Transfer Date, and (z) the Other
Student Loans on the related Subsequent Transfer Date, pursuant to the
Indenture, will vest in the Indenture Trustee, for the benefit of the
holders of the Notes, a first priority perfected security interest
therein, subject to no prior lien, mortgage, security interest, pledge,
adverse claim, charge or other encumbrance.
(x) The Depositor is not, and after giving effect to the offering
and sale of the Notes and the Certificates, will not be an "investment
company" or an entity "controlled" by an "investment company," as such
terms are defined in the United States Investment Company Act of 1940, as
amended (the "Investment Company Act"), [and the exemption provided under
Section 3(c)(5) of the Investment Company Act is applicable to the
Depositor with respect to the offering and sale of the Notes and the
Certificates].
(b) Each of KBUSA and the Depositor hereby agrees with the Underwriters
that, for all purposes of this Agreement, the only information furnished to the
Depositor by the Underwriters through the Representative specifically for use in
the Registration Statement, the Prospectus, or any amendment or supplement
thereto, or any related preliminary prospectus, are the statements relating to
stabilization on the inside cover page of, and the statements under the caption
"Underwriting" in, the preliminary prospectus and the Prospectus (the
"Underwriter Information").
3. Purchase, Sale and Delivery of the Certificates. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Depositor agrees to cause the Trust
to sell to the Underwriters, and the Underwriters agree, severally and not
jointly, to purchase from the Trust, at a purchase price of [ ]% of the
principal amount of the Certificates the respective principal amounts of the
Certificates set forth opposite the names of the Underwriters in Schedule I
hereto. In addition,
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the Depositor agrees to cause the Underwriters to be paid an aggregate
structuring fee in connection with the structuring of the Certificates of $[ ].
The Depositor will deliver the Certificates to the Representative for the
respective accounts of the Underwriters, against payment of the purchase price
to or upon the order of the Depositor or its designee by wire transfer or check
in Federal (same day) Funds, at the office of XxXxx Xxxxxx LLP, 0 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, on [ ], [ ], or at such other time not later than
seven full business days thereafter as the Representative and the Depositor
determine, such time being herein referred to as the "Closing Date." The
Certificates to be so delivered will be initially represented by one or more
Certificates of each class registered in the name of Cede & Co., the nominee of
The Depository Trust Company ("DTC"). The interests of beneficial owners of the
Certificates will be represented by book entries on the records of DTC and
participating members thereof. Definitive Certificates will be available only
under the limited circumstances specified in the Trust Agreement.
4. Offering by the Underwriters. It is understood that, provided that the
Registration Statement remains effective, the several Underwriters propose to
offer the Certificates for sale to the public (which may include selected
dealers) as set forth in the Prospectus.
5. Covenants of the Depositor and KBUSA. Each of KBUSA and the Depositor
agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Certificates, neither
the Depositor nor KBUSA will file any amendment of the Registration Statement or
supplement to the Prospectus unless the Depositor or KBUSA has furnished the
Representative a copy for its review prior to filing and will not file any such
proposed amendment or supplement to which the Representative reasonably objects.
Subject to the foregoing sentence, if the Registration Statement has become or
becomes effective pursuant to Rule 430A, or filing of the Prospectus is
otherwise required under Rule 424(b), KBUSA or the Depositor will file the
Prospectus, properly completed, and any supplement thereto, with the Commission
pursuant to and in accordance with the applicable paragraph of Rule 424(b)
within the time period prescribed and will provide evidence satisfactory to the
Representative of such timely filing.
(b) Either KBUSA or the Depositor will advise the Representative promptly
of any proposal to amend or supplement the registration statement as filed or
the related prospectus or the Registration Statement or the Prospectus and will
not effect such amendment or supplementation without the consent of the
Representative prior to the Closing Date, and thereafter will not effect any
such amendment or supplementation to which the Representative reasonably
objects; either KBUSA or the Depositor will also advise the Representative
promptly of any request by the Commission for any amendment of or supplement to
the Registration Statement or the Prospectus or for any additional information;
and either KBUSA or the Depositor will also advise the Representative promptly
of the effectiveness of the Registration Statement (if the Effective Time is
subsequent to the execution of this Agreement) and of any amendment or
supplement to the Registration Statement or the Prospectus and of the issuance
by the Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threat of any proceeding for that
purpose and each of KBUSA and the
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Depositor will use its best efforts to prevent the issuance of any such stop
order and to obtain as soon as possible the lifting of any issued stop order.
(c) If, at any time when a prospectus relating to the Certificates is
required to be delivered under the Act, any event occurs as a result of which
the Prospectus as then amended or supplemented would contain an untrue statement
of a material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, or if it is necessary at any time to amend or supplement
the Prospectus to comply with the Act or the Exchange Act, KBUSA or the
Depositor promptly will prepare and file, or cause to be prepared and filed,
with the Commission an amendment or supplement which will correct such statement
or omission, or an amendment or supplement which will effect such compliance.
Neither the consent of the Representative to, nor the delivery of the several
Underwriters of, any such amendment or supplement shall constitute a waiver of
any of the conditions set forth in Section 6 hereof.
(d) As soon as practicable, but not later than the Availability Date (as
defined below), either KBUSA or the Depositor will cause the Trust to make
generally available to the holders of the Certificates an earnings statement of
the Trust covering a period of at least twelve months beginning after the
Effective Date which will satisfy the provisions of Section 11(a) of the Act and
Rule 158 of the applicable Rules and Regulations thereunder. For the purpose of
the preceding sentence, "Availability Date" means the 45th day after the end of
the fourth fiscal quarter following the fiscal quarter that includes the
Effective Date, except that, if such fourth fiscal quarter is the last quarter
of the Trust's fiscal year, "Availability Date" means the 90th day after the end
of such fourth fiscal quarter.
(e) KBUSA will furnish to the Representative copies of the Registration
Statement (two of which will be signed and will include all exhibits), each
related preliminary prospectus, the Prospectus and all amendments and
supplements to such documents, in each case as soon as available and in such
quantities as the Representative reasonably requests.
(f) KBUSA will arrange for the qualification of the Certificates for sale
under the laws of the State of California and will continue such qualification
in effect so long as required for the distribution.
(g) For a period from the date of this Agreement until the retirement of
the Certificates, or until such time as the several Underwriters shall cease to
maintain a secondary market in the Certificates, whichever occurs first, KBUSA
will deliver to the Representative the annual statements of compliance and the
annual independent certified public accountants' reports furnished to the
Indenture Trustee or the Eligible Lender Trustee pursuant to the Sale and
Servicing Agreement, as soon as such statements and reports are furnished to the
Indenture Trustee or the Eligible Lender Trustee.
(h) So long as any of the Certificates are outstanding, either KBUSA or
the Depositor will furnish to the Representative (i) as soon as practicable
after the end of the fiscal year all documents required to be distributed to the
holders of the Certificates or filed with the Commission on behalf of the Trust
pursuant to the Exchange Act or any order of the Commission thereunder and (ii)
from time to time, any other information concerning KBUSA or
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the Depositor as the Representative may reasonably request only insofar as such
information reasonably relates to the Registration Statement or the transactions
contemplated by the Basic Documents.
(i) On or before the Closing Date, the Depositor shall xxxx its accounting
and other records, if any, relating to the Initial Financed Student Loans and
shall instruct the Master Servicer (which shall cause each Sub-Servicer and the
Custodian) to xxxx the computer records of the Master Servicer (or such
Sub-Servicer or Custodian) relating to the Financed Student Loans to show the
absolute ownership by the Eligible Lender Trustee on behalf of the Trust of the
Financed Student Loans, and from and after the Closing Date the Depositor shall
not and shall require that the Master Servicer (which shall ensure that any
Sub-Servicer and the Custodian) shall not take any action inconsistent with the
ownership by the Eligible Lender Trustee on behalf of the Trust of such Initial
Financed Student Loans, other than as permitted by the Sale and Servicing
Agreement.
(j) To the extent, if any, that the rating provided with respect to the
Certificates by the Rating Agencies that initially rate the Certificates is
conditional at the time of issuance of the Certificates upon the furnishing of
documents or the taking of any other actions by KBUSA or the Depositor agreed
upon on or prior to the Closing Date, KBUSA and the Depositor, as applicable,
shall furnish such documents and take any such other actions. A copy of any such
document shall be provided to the Representative at the time it is delivered to
the Rating Agencies.
(k) For the period beginning on the date of this Agreement and ending 90
days after the Closing Date, none of KBUSA, the Depositor or any trust
originated, directly or indirectly, by KBUSA or the Depositor will, without the
prior written consent of the Representative, offer to sell or sell notes (other
than the Notes) collateralized by, or certificates (other than the Certificates
and the Trust Certificate) evidencing an ownership interest in, student loans;
provided, however, that this shall not be construed to prevent the sale of
student loans by the Depositor.
(l) The Depositor will apply the net proceeds of the offering and the sale
of the Certificates that it receives in the manner set forth in the Prospectus
under the caption "Use of Proceeds."
(m) KBUSA will pay or cause to be paid all expenses incident to the
performance of its and the Depositor's obligations under this Agreement,
including (i) the printing and filing of the documents (including the
Registration Statement and Prospectus) (ii) the preparation, issuance and
delivery of the Certificates to the Representative, (iii) the fees and
disbursements of KBUSA's and the Depositor's counsels and accountants, (iv) the
qualification of the Certificates under securities laws in accordance with the
provisions of Section 5(f), including filing fees and the fees and disbursements
of counsel for the Representative in connection therewith and in connection with
the preparation of any blue sky or legal investment survey, if any is requested,
(v) the printing and delivery to the Representative of copies of the
Registration Statement as originally filed and of each amendment thereto, (vi)
the printing and delivery to the Representative of copies of any blue sky or
legal investment survey prepared in connection with the Certificates, (vii) any
fees charged by rating agencies for the
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rating of the Certificates, (viii) the fees and expenses, if any, incurred with
respect to any filing with the National Association of Securities Dealers, Inc.,
(x) the fees charged by the [Swap Counterparty, the Cap Counterparty and Cap
Provider (including attorneys fees and disbursements)], (xi) [the fees charged
by the Put Option Provider (including attorneys fees and disbursements]), (xii)
the fees charged by the Custodian, and (xiii) the fees and expenses of Xxxxxxxx
Xxxx LLP in its role as counsel to the Trust incurred as a result of providing
the opinions required by Section 6(i) hereof.
6. Conditions of the Obligations of the Underwriters. The obligations of
the several Underwriters to purchase and pay for the Certificates will be
subject to the accuracy of the representations and warranties on the part of
KBUSA and the Depositor herein, to the accuracy of the written statements of
officers of KBUSA and the Depositor made pursuant to the provisions of this
Section, to the performance by KBUSA and the Depositor of their obligations
hereunder and to the following additional conditions precedent:
(a) If the Effective Time is not prior to the execution and delivery of
this Agreement, the Effective Time shall have occurred not later than 6:00 p.m.,
New York City time, on the date of this Agreement or such later time or date as
shall have been consented to by the Representative.
(b) If the Effective Time is prior to the execution and delivery of this
Agreement, the Prospectus and any supplements thereto shall have been filed with
the Commission in accordance with the Rules and Regulations and Section 5(a)
hereof. Prior to the Closing Date, no stop order suspending the effectiveness of
the Registration Statement shall have been issued and no proceedings for that
purpose shall have been instituted or, to the knowledge of the Seller or the
Representative, shall be contemplated by the Commission.
(c) The Representative shall have received a letter, dated on or prior to
the Closing Date of Ernst & Young LLP on behalf of KBUSA confirming that such
accountants are independent public accountants within the meaning of the Act and
the applicable published Rules and Regulations thereunder, and substantially in
the form of the drafts to which the Representative has previously agreed and
otherwise in form and substance reasonably satisfactory to the Representative
and its counsel.
(d) Subsequent to the execution and delivery of this Agreement, there
shall not have occurred (i) any change, or any development involving a
prospective change, in or affecting particularly the business or properties of
the Trust, KBUSA, the Put Option Provider, KeyCorp or the Securities Insurer
which, in the judgment of the Representative, materially impairs the investment
quality of the Notes or makes it impractical or inadvisable to market the Notes;
(ii) any downgrading in the rating of any debt securities of KBUSA, the Put
Option Provider, KeyCorp or the Securities Insurer by any "nationally recognized
statistical rating organization" (as defined for purposes of Rule 436(g) under
the Act), or any public announcement that any such organization has under
surveillance or review its rating of any debt securities of KBUSA, the Put
Option Provider, the Cap Counterparty, KeyCorp or the Securities Insurer (other
than an announcement with positive implications of a possible upgrading, and no
implication of a possible downgrading, of such rating); (iii) any suspension or
limitation of trading in securities generally on the New York Stock Exchange, or
any setting of minimum
-10-
prices for trading on such exchange; (iv) any suspension of trading of any
securities of KBUSA, the Put Option Provider or KeyCorp on any exchange or in
the over-the-counter market; (v) any banking moratorium declared by Federal or
New York authorities; or (vi) any outbreak or escalation of hostilities
involving the United States or the declaration by the United States of a
national emergency or war, if the effect of any such event specified in this
clause (vi) in the judgment of the Representative makes it impracticable or
inadvisable to proceed with the public offering or the delivery of the Notes on
the terms and in the manner contemplated in the Prospectus.
(e) The Representative shall have received an opinion of Xxxxxxx X.
Xxxxxxx, Esq., Associate General Counsel and Senior Vice President of KBNA, as
counsel for (i) KBUSA, as the Seller, the Master Servicer, the Swap
Counterparty, the Cap Provider, the Cap Counterparty and the Administrator and
(ii) the Depositor, dated the Closing Date, in the form attached hereto as
Exhibit A, or as is otherwise satisfactory in form and substance to the
Representative and its counsel.
(f) The Representative shall have received one or more opinions of
Xxxxxxxx Xxxx LLP, counsel to the Depositor and the Seller, dated the Closing
Date, in the form attached hereto as Exhibit B, or as is otherwise satisfactory
in form and substance to the Representative and its counsel, regarding certain
true sale, bankruptcy, insolvency and perfection of security interest matters
regarding the Seller, the Depositor and the Trust.
(g) The Representative shall have received an opinion of [Xxxxxx X.
Xxxxxxx as counsel to Key Bank National Association, as the Put Option
Provider], dated the Closing Date, in the form attached hereto as Exhibit D, or
as is otherwise satisfactory in form and substance to the Representative and its
counsel.
(h) The Representative shall have received an opinion of [Xxxxxxxxxxx &
Xxxxxxxx LLP], counsel to KBUSA and the Depositor, dated the Closing Date and
satisfactory in form and substance to the Representative and its counsel, to the
effect that the statements in the Prospectus under the headings "Summary of
Terms -- Tax Status" and "Pennsylvania State Tax Consequences -- Pennsylvania
Income and Franchise Tax Consequences with Respect to the Notes" accurately
describe the material Pennsylvania tax consequences to holders of the
Certificates.
(i) The Representative shall have received an opinion addressed to the
several Underwriters of Xxxxxxxx Xxxx LLP, in its capacity as Federal tax and
ERISA counsel for the Trust, to the effect that the statements in the Prospectus
under the headings "Summary of Terms -- Tax Status" and "Federal Tax
Consequences for Trusts in which all Certificates are Retained by the Seller"
accurately describe the material Federal income tax consequences to holders of
the Notes, and the statements in the Prospectus under the headings "Summary of
Terms -- ERISA Considerations" and "ERISA Considerations" to the extent that
they constitute statements of matters of law or legal conclusions with respect
thereto, have been prepared or reviewed by such counsel and accurately describe
the material consequences to holders of the Certificates under ERISA. Xxxxxxxx
Xxxx LLP, in its capacity as special counsel to the Trust, shall have delivered
an opinion with respect to the characterization of the transfer of the Initial
Financed Student Loans.
-11-
(j) The Representative shall have received an opinion addressed to the
several Underwriters of XxXxx Xxxxxx LLP, in its capacity as special counsel to
the several Underwriters, dated the Closing Date, with respect to the validity
of the Certificates and such other related matters as the Representative shall
reasonably require and each of KBUSA and the Depositor shall have furnished or
caused to be furnished to such counsel such documents as they may reasonably
request for the purpose of enabling them to pass upon such matters.
(k) The Representative shall have received an opinion of [ ], special
student loan counsel to the Representative and, in the case of clause (iii)
below, special student loan counsel to the Eligible Lender Trustee, dated the
Closing Date, satisfactory in form and substance to the Representative, to the
effect that:
(i) the agreements implementing the Programs, (including the
Coordination Agreements) and the Relevant Documents (as defined in such
opinion), and the transactions contemplated by the Relevant Documents,
conform in all material respects to the applicable requirements of the
Higher Education Act, and that, upon the due authorization, execution and
delivery of the Relevant Documents and the consummation of such
transactions, the Financed Federal Loans, legal title to which will be
held by the Eligible Lender Trustee on behalf of the Trust, will qualify,
subject to compliance with all applicable origination and servicing
requirements, for all applicable federal assistance payments, including
federal reinsurance and federal interest subsidies and special allowance
payments;
(ii) such counsel has examined the Prospectus, and nothing has come
to such counsel's attention that would lead such counsel to believe that,
solely with respect to the Higher Education Act and the student loan
business, the Prospectus or any amendment or supplement thereto as of the
respective dates thereof or on the Closing Date contains an untrue
statement of a material fact or omits to state a material fact necessary
in order to make the statements therein not misleading; and
(iii) the Eligible Lender Trustee 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 Financed Federal Loans.
[SUB-SERVICERS AND GUARANTORS TO BE UPDATED IN EACH AGREEMENT]
(l) [The Representative shall have received an opinion of counsel to
[PHEAA], dated the Closing Date and satisfactory in form and substance to the
Representative and its counsel, to the effect that:
(i) [PHEAA] has been duly organized and is validly existing as an
agency of the Commonwealth of Pennsylvania in good standing under the laws
thereof with full power and authority (corporate and other) to own its
properties and conduct its business, as presently conducted by it, and to
enter into and perform its obligations under the [PHEAA] Sub-Servicing
Agreements and the
-12-
Guarantee Agreement (and the agreements with the Department under Section
428 of the Higher Education Act to the extent relevant to [PHEAA]'s
obligations under such Guarantee Agreement) to which it is a party, and
had at all relevant times, and now has, the power, authority and legal
right to service the Financed Student Loans it is servicing, to guarantee
the Financed Federal Loans covered by such Guarantee Agreement and to
receive, subject to compliance with all applicable conditions,
restrictions and limitations of the Higher Education Act, reinsurance
payments from the Department with respect to claims paid by it on such
Financed Federal Loans.
(ii) [PHEAA] is duly qualified to do business and is in good
standing, and has obtained all necessary licenses and approvals in each
jurisdiction in which failure to qualify or to obtain such license or
approval would render any Financed Student Loan or [PHEAA]'s obligation
under its Guarantee Agreement unenforceable by or on behalf of the Trust.
(iii) Each of the [PHEAA] Sub-Servicing Agreements and the Guarantee
Agreement (and the agreements with the Department under Section 428 of the
Higher Education Act to the extent relevant to [PHEAA]'s obligations under
such Guarantee Agreement) to which [PHEAA] is a party has been duly
authorized, executed and delivered by [PHEAA] and is the legal, valid and
binding obligation of [PHEAA] enforceable against [PHEAA] in accordance
with its terms, notwithstanding the existence of any doctrine of sovereign
immunity except (x) the enforceability thereof may be subject to
bankruptcy, insolvency, reorganization, moratorium or other similar laws
now or hereafter in effect relating to creditors' rights, and to the
termination powers granted the secretary of the Department under Section
4042 of the Student Loan Reform Act of 1993, amending Section 422 of the
Higher Education Act, and (y) the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to equitable
defenses and to the discretion of the court before which any proceeding
therefor may be brought.
(iv) Neither the execution and delivery by [PHEAA] of the [PHEAA]
Sub-Servicing Agreements or the Guarantee Agreement to which it is a
party, nor the consummation by [PHEAA] of the transactions contemplated
therein nor the fulfillment of the terms thereof by [PHEAA] will conflict
with, result in a breach, violation or acceleration of, or constitute a
default under, any term or provision of [PHEAA]'s authorizing legislation
or by-laws of [PHEAA] or of any indenture or other agreement or instrument
to which [PHEAA] is a party or by which [PHEAA] is bound, or result in a
violation of or contravene the terms of any statute, order or regulation
applicable to [PHEAA] of any court, regulatory body, administrative agency
or governmental body having jurisdiction over [PHEAA].
(v) There are no actions, proceedings or investigations pending or,
to the best of such counsel's knowledge after due inquiry, threatened
against [PHEAA] before or by any governmental authority that might
materially and adversely affect the performance by [PHEAA] of its
obligations under, or the
-13-
validity or enforceability of, the [PHEAA] Sub-Servicing Agreements or the
Guarantee Agreement (or the agreements with the Department under Section
428 of the Higher Education Act to the extent relevant to [PHEAA]'s
obligations under such Guarantee Agreement) to which it is a party.
(vi) Nothing has come to such counsel's attention that would lead
such counsel to believe that the representations and warranties of [PHEAA]
contained in the [PHEAA] Sub-Servicing Agreements are other than as stated
therein.]
(m) [The Representative shall have received an opinion of counsel to Great
Lakes in its capacity as a Sub-Servicer, dated the Closing Date and satisfactory
in form and substance to the Representative and its counsel, to the effect that:
(i) Great Lakes has been duly organized and is validly existing as a
Wisconsin corporation in good standing under the laws thereof with full
power and authority (corporate and other) to own its properties and
conduct its business, as presently conducted by it, and to enter into and
perform its obligations under the Great Lakes Sub-Servicing Agreement, and
had at all relevant times, and now has, the power, authority and legal
right to service the Financed Student Loans it is servicing.
(ii) The Great Lakes Sub-Servicing Agreement has been duly
authorized, executed and delivered by Great Lakes and is the legal, valid
and binding obligation of Great Lakes enforceable against Great Lakes in
accordance with its terms, except (x) the enforceability thereof may be
subject to bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect relating to creditors' rights and
(y) the remedy of specific performance and injunctive and other forms of
equitable relief may be subject to equitable defenses and to the
discretion of the court before which any proceeding therefor may be
brought.
(iii) Neither the execution and delivery by Great Lakes of the Great
Lakes Sub-Servicing Agreement, nor the consummation by Great Lakes of the
transactions contemplated therein nor the fulfillment of the terms thereof
by Great Lakes will conflict with, result in a breach, violation or
acceleration of, or constitute a default under, any term or provision of
the certificate of incorporation or by-laws of Great Lakes or of any
indenture or other agreement or instrument to which Great Lakes is a party
or by which Great Lakes is bound, or result in a violation of or
contravene the terms of any statute, order or regulation applicable to
Great Lakes of any court, regulatory body, administrative agency or
governmental body having jurisdiction over Great Lakes.
(iv) There are no actions, proceedings or investigations pending or,
to the best of such counsel's knowledge after due inquiry, threatened
against Great Lakes before or by any governmental authority that might
materially and adversely affect the performance by Great Lakes of its
obligations under, or the validity or enforceability of, the Great Lakes
Sub-Servicing Agreement.
-14-
(v) Nothing has come to such counsel's attention that would lead
such counsel to believe that the representations and warranties of Great
Lakes contained in the Great Lakes Sub-Servicing Agreement are other than
as stated therein.]
(n) [The Representative shall have received an opinion of counsel to the
Massachusetts Higher Education Assistance Corporation, now doing business as
American Student Assistance, a Massachusetts non-profit corporation ("ASA"),
dated the Closing Date and satisfactory in form and substance to the
Representative and its counsel, to the effect that:
(i) ASA has been duly incorporated and is validly existing as a
non-profit corporation in good standing under the laws of the Commonwealth
of Massachusetts with full power and authority (corporate and other) to
own its properties and conduct its business, as presently conducted by it,
and to enter into and perform its obligations under the Guarantee
Agreement (and the agreements with the Department under Section 428 of the
Higher Education Act to the extent relevant to ASA's obligations under
such Guarantee Agreement) to which it is a party, and had at all relevant
times, and now has, the power, authority and legal right to guarantee the
Financed Federal Loans covered by such Guarantee Agreement and to receive,
subject to compliance with all applicable conditions, restrictions and
limitations of the Higher Education Act, reinsurance payments from the
Department with respect to claims paid by it on such Financed Federal
Loans.
(ii) ASA is duly qualified to do business and is in good standing,
and has obtained all necessary licenses and approvals in each jurisdiction
in which failure to qualify or to obtain such license or approval would
render ASA's obligation under its Guarantee Agreement to guarantee the
Financed Federal Loans covered thereby unenforceable by or on behalf of
the Trust.
(iii) The Guarantee Agreement (and the agreements with the
Department under Section 428 of the Higher Education Act to the extent
relevant to ASA's obligations under such Guarantee Agreement) to which ASA
is a party has been duly authorized, executed and delivered by ASA and is
the legal, valid and binding obligation of ASA enforceable against ASA in
accordance with its terms, except (x) the enforceability thereof may be
subject to bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect relating to creditors' rights and
(y) the remedy of specific performance and injunctive and other forms of
equitable relief may be subject to equitable defenses and to the
discretion of the court before which any proceeding therefor may be
brought.
(iv) Neither the execution and delivery by ASA of the Guarantee
Agreement to which it is a party, nor the consummation by ASA of the
transactions contemplated therein nor the fulfillment of the terms thereof
by ASA will conflict with, result in a breach, violation or acceleration
of, or constitute a default under, any term or provision of the
certificate of incorporation or by-laws
-15-
of ASA or of any indenture or other agreement or instrument to which ASA
is a party or by which ASA is bound, or result in a violation of or
contravene the terms of any statute, order or regulation applicable to ASA
of any court, regulatory body, administrative agency or governmental body
having jurisdiction over ASA.
(v) There are no actions, proceedings or investigations pending or,
to the best of such counsel's knowledge after due inquiry, threatened
against ASA before or by any governmental authority that might materially
and adversely affect the performance by ASA of its obligations under, or
the validity or enforceability of, the Guarantee Agreement (or the
agreements with the Department under Section 428 of the Higher Education
Act to the extent relevant to ASA's obligations under such Guarantee
Agreement) to which it is a party.]
(o) [The Representative shall have received an opinion of counsel to the
National Student Loan Program ("NSLP"), dated the Closing Date and satisfactory
in form and substance to the Representative and its counsel, to the effect that:
(i) NSLP has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Nebraska with
full power and authority (corporate and other) to own its properties and
conduct its business, as presently conducted by it, and to enter into and
perform its obligations under the Guarantee Agreement (and the agreements
with the Department under Section 428 of the Higher Education Act to the
extent relevant to NSLP's obligations under such Guarantee Agreement) to
which it is a party, and had at all relevant times, and now has, the
power, authority and legal right to guarantee the Financed Federal Loans
covered by such Guarantee Agreement and to receive, subject to compliance
with all applicable conditions, restrictions and limitations of the Higher
Education Act, reinsurance payments from the Department with respect to
claims paid by it on such Financed Federal Loans.
(ii) NSLP is duly qualified to do business and is in good standing,
and has obtained all necessary licenses and approvals in each jurisdiction
in which failure to qualify or to obtain such license or approval would
render NSLP's obligation under its Guarantee Agreement to guarantee the
Financed Federal Loans covered thereby unenforceable by or on behalf of
the Trust.
(iii) The Guarantee Agreement (and the agreements with the
Department under Section 428 of the Higher Education Act to the extent
relevant to NSLP's obligations under such Guarantee Agreement) to which
NSLP is a party has been duly authorized, executed and delivered by NSLP
and is the legal, valid and binding obligation of NSLP enforceable against
NSLP in accordance with its terms, except (x) the enforceability thereof
may be subject to bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or hereafter in effect relating to creditors'
rights and (y) the remedy of specific performance and injunctive and other
forms of equitable relief may be subject to equitable defenses
-16-
and to the discretion of the court before which any proceeding therefor
may be brought.
(iv) Neither the execution and delivery by NSLP of the Guarantee
Agreement to which it is a party, nor the consummation by NSLP of the
transactions contemplated therein nor the fulfillment of the terms thereof
by NSLP will conflict with, result in a breach, violation or acceleration
of, or constitute a default under, any term or provision of the
certificate of incorporation or by-laws of NSLP or of any indenture or
other agreement or instrument to which NSLP is a party or by which NSLP is
bound, or result in a violation of or contravene the terms of any statute,
order or regulation applicable to NSLP of any court, regulatory body,
administrative agency or governmental body having jurisdiction over NSLP.
(v) There are no actions, proceedings or investigations pending or,
to the best of such counsel's knowledge after due inquiry, threatened
against NSLP before or by any governmental authority that might materially
and adversely affect the performance by NSLP of its obligations under, or
the validity or enforceability of, the Guarantee Agreement (or the
agreements with the Department under Section 428 of the Higher Education
Act to the extent relevant to NSLP's obligations under such Guarantee
Agreement) to which it is a party.]
(p) [The Representative shall have received an opinion of counsel to the
California Student Aid Commission ("CSAC"), dated the Closing Date and
reasonably satisfactory in form and substance to the Representative and its
counsel.]
(q) [The Representative shall have received an opinion of counsel to the
Connecticut Student Loan Foundation ("CSLF"), dated the Closing Date and
reasonably satisfactory in form and substance to the Representative and its
counsel.]
(r) [The Representative shall have received an officer's certificate from
the New York State Higher Education Services Corporation ("NYHESC"), dated the
Closing Date and reasonably satisfactory in form and substance to the
Representative and its counsel.]
(s) [The Representative shall have received an officer's certificate from
the Educational Credit Management Corporation ("ECMC"), dated the Closing Date
and reasonably satisfactory in form and substance to the Representative and its
counsel.]
(t) [The Representative shall have received an opinion of counsel to
United Student Aid Funds, Inc. ("USAF"), dated the Closing Date and reasonably
satisfactory in form and substance to the Representative and its counsel.]
(u) [The Representative shall have received an officer's certificate from
the Michigan Higher Education Assistance Agency ("MHEAA"), dated the Closing
Date and reasonably satisfactory in form and substance to the Representative and
its counsel.]
-17-
(v) [The Representative shall have received an opinion of counsel to Great
Lakes Higher Education Guaranty Corporation ("GLHEGC"), dated the Closing Date
and satisfactory in form and substance to the Representative and its counsel, to
the effect that:
(i) GLHEGC has been duly organized and is validly existing as a
nonstock corporation pursuant to Chapter 181 of the Wisconsin Statutes.
(ii) GLHEGC, and its officers acting on its behalf, had full legal
authority to execute and deliver the Contract of Guarantee with the Trust
and the Guarantor Documents (each as defined in such opinion) as of the
respective dates of their execution.
(iii) GLHEGC had authority to engage in the transaction agreed to in
the Contract of Guarantee. The Contract of Guarantee was duly executed and
delivered by officers acting on valid authority and with the approval of
GLHEGC.
(iv) GLHEGC has lawful authority to perform its obligations under
the Guarantor Documents, and the Guarantor Documents have been lawfully
executed and delivered by GLHEGC, and constitute legal, valid and binding
agreements of GLHEGC in accordance with their terms, subject to the
limitations hereinafter set forth.
(v) Except as otherwise qualified herein, GLHEGC is in compliance
with all material provisions of the Guarantor Documents, and is in
substantial compliance with the Higher Education Act and the current Title
IV Regulations with respect to GLHEGC's guarantee program insofar as the
same pertain to the Guarantor Documents.
(vi) The federal reinsurance, special allowances and interest
benefits on student loans guaranteed by GLHEGC are in full force and
effect to the fullest extent permitted by the Higher Education Act.
(vii) Subject to the limitations of the Higher Education Act, GLHEGC
has full power and authority to execute and deliver, and has authorized,
executed and delivered, the Guarantor Documents, and the Guarantor
Documents constitute legal, valid and binding obligations of GLHEGC
enforceable against GLHEGC in accordance with their terms, except as
limited by applicable insolvency, reorganization, moratorium, liquidation,
readjustment of debt or similar laws affecting the enforcement of the
rights of creditors generally and subject to general equity principles.
Subject to the limitations of the Higher Education Act, the execution and
delivery by GLHEGC of the Guarantor Documents did not and will not and the
consummation of the transactions contemplated thereby and the satisfaction
of the terms thereof will not, conflict with or result in a breach of any
of the terms, conditions or provisions of the articles or bylaws or to the
knowledge of such counsel, any decree, order, statute, rule or
governmental regulation applicable to GLHEGC or any restriction contained
in any contract,
-18-
agreement or instrument to which GLHEGC is a party or by which it is bound
or constitute a default under any of the foregoing.
(viii) To the best of such counsel's knowledge, except with
reference to certain litigation, and other actions alleging borrower
and/or school based defenses that could result in denial of reinsurance
under the Guarantor Documents based on various state law theories causing
material losses to lenders and/or guarantors, and except as otherwise
described in the Prospectus Supplement, there is no litigation pending or
threatened in any court (a) in any way contesting or affecting the
validity or enforceability of the Guarantor Documents or (b) against
GLHEGC which may materially adversely affect the security for the Notes or
materially adversely affect GLHEGC or GLHEGC's student loan program.]
(w) [The Representative shall have received an opinion of counsel to
Colorado Student Loan Program ("CSLP"), dated the Closing Date and reasonably
satisfactory in form and substance to the Representative and its counsel.]
(x) [The Representative shall have received an opinion of counsel to
Illinois Student Assistance Commission ("ISAC"), dated the Closing Date and
reasonably satisfactory in form and substance to the Representative and its
counsel.]
(y) [The Representative shall have received an opinion of counsel to
Kentucky Higher Education Assistance Authority ("KHEAA"), dated the Closing Date
and reasonably satisfactory in form and substance to the Representative and its
counsel.]
(z) [The Representative shall have received an opinion of counsel to
Oregon Student Assistance Commission ("OSAC"), dated the Closing Date and
reasonably satisfactory in form and substance to the Representative and its
counsel.]
(aa) [The Representative shall have received an officer's certificate from
the Tennessee Student Assistance Corporation ("TSAC"), dated the Closing Date
and reasonably satisfactory in form and substance to the Representative and its
counsel.]
(bb) [The Representative shall have received an opinion of counsel to
Texas Guaranteed Student Loan Corporation ("TGSLC"), dated the Closing Date and
reasonably satisfactory in form and substance to the Representative and its
counsel.]
(cc) [The Representative shall have received an opinion of counsel to
HEMAR Insurance Company of America, an indirect subsidiary of SLM Holding
Corporation ("HICA"), dated the Closing Date and satisfactory in form and
substance to the Representative and its counsel, to the effect that:
(i) HICA is duly incorporated and is validly existing as a for
profit insurance corporation in good standing under the laws of the State
of South Dakota with full power and authority (corporate and other) to own
its properties and conduct its business, as presently conducted by it, and
to enter into and perform its obligations under the Surety Bonds and the
Endorsement described in the Prospectus Supplement and had at all relevant
times, and now has, the power,
-19-
authority and legal right to insure the Financed Private Loans covered by
such Surety Bonds and the Endorsement thereto. The Financed Private Loans
are subject to the terms and conditions of the Surety Bonds and the
Endorsement under which they have been insured.
(ii) HICA is duly qualified to do business and is in good standing,
and has obtained all necessary licenses and approvals in each jurisdiction
in which failure to qualify or to obtain such license or approval would
render HICA's obligation under the Surety Bonds and the Endorsement
thereto to insure the Financed Private Loans unenforceable by or on behalf
of the Trust.
(iii) The Surety Bonds and the Endorsement thereto to which HICA is
a party have been duly authorized, executed and delivered by HICA and are
the legal, valid and binding obligations of HICA enforceable against HICA
in accordance with their respective terms, except (x) the enforceability
thereof may be subject to bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights and (y) the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to equitable
defenses and to the discretion of the court before which any proceeding
therefor may be brought.
(iv) Neither the execution and delivery by HICA of the Surety Bonds
and the Endorsement thereto to which it is a party, nor the consummation
by HICA of the transactions contemplated therein nor the fulfillment of
the terms thereof by HICA will conflict with, result in a breach,
violation or acceleration of, or constitute a default under, any term or
provision of the certificate of incorporation or by-laws of HICA or of any
indenture or other agreement or instrument to which HICA is a party or by
which HICA is bound, or result in a violation of or contravene the terms
of any statute, order or regulation applicable to HICA of any court,
regulatory body, administrative agency or governmental body having
jurisdiction over HICA.
(v) There are no actions, proceedings or investigations pending or,
to the best of such counsel's knowledge after due inquiry, threatened
against HICA before or by any governmental authority that might materially
and adversely affect the performance by HICA of its obligations under, or
the validity or enforceability of, the Surety Bonds and the Endorsement
thereto to which it is a party.]
(dd) [The Representative shall have received an opinion of [Xxxxx,
Xxxxxxxx & Strong, LLP], counsel to The Education Resources Institute, Inc., a
Massachusetts non-profit corporation ("XXXX"), dated the Closing Date and
satisfactory in form and substance to the Representative and its counsel, to the
effect that:
(i) XXXX has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the Commonwealth of
Massachusetts with full power and authority (corporate and other) to own
its
-20-
properties and conduct its business, as presently conducted by it, and to
enter into and perform its obligations under the Guarantee Agreement to
which it is a party, and had at all relevant times, and now has, the
power, authority and legal right to guarantee the Financed Private Loans
covered by such Guarantee Agreement.
(ii) XXXX is duly qualified to do business and is in good standing,
and has obtained all necessary licenses and approvals in each jurisdiction
in which failure to qualify or to obtain such license or approval would
render TERI's obligation under its Guarantee Agreement to guarantee the
Financed Private Loans unenforceable by or on behalf of the Trust.
(iii) The Guarantee Agreement to which XXXX is a party has been duly
authorized, executed and delivered by XXXX and is the legal, valid and
binding obligation of XXXX enforceable against XXXX in accordance with its
terms, except (x) the enforceability thereof may be subject to bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights and (y) the remedy of
specific performance and injunctive and other forms of equitable relief
may be subject to equitable defenses and to the discretion of the court
before which any proceeding therefor may be brought.
(iv) Neither the execution and delivery by XXXX of the Guarantee
Agreement to which it is a party, nor the consummation by XXXX of the
transactions contemplated therein nor the fulfillment of the terms thereof
by XXXX will conflict with, result in a breach, violation or acceleration
of, or constitute a default under, any term or provision of the
certificate of incorporation or by-laws of XXXX or of any indenture or
other agreement or instrument to which XXXX is a party or by which XXXX is
bound, or result in a violation of or contravene the terms of any statute,
order or regulation applicable to XXXX of any court, regulatory body,
administrative agency or governmental body having jurisdiction over XXXX.
(v) There are no actions, proceedings or investigations pending or,
to the best of such counsel's knowledge after due inquiry, threatened
against XXXX before or by any governmental authority that might materially
and adversely affect the performance by XXXX of its obligations under, or
the validity or enforceability of, the Guarantee Agreement to which it is
a party.]
(ee) The Representative shall have received an opinion of [Xxxxxx &
Xxxxxx], counsel to the Indenture Trustee, dated the Closing Date and
satisfactory in form and substance to the Representative and its counsel, to the
effect that:
(i) [The Indenture Trustee is a banking corporation validly exiting
under the laws of the State of New York and is duly authorized and
empowered to exercise trust powers under applicable law].
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(ii) The Indenture Trustee has the requisite power and authority to
execute, deliver and perform its obligations under the Indenture, the Sale
and Servicing Agreement and the Administration Agreement, and has taken
all necessary action to authorize the execution and delivery of and
performance of it obligations by it under, the Indenture, the Sale and
Servicing Agreement and the Administration Agreement.
(iii) Each of the Indenture, the Sale and Servicing Agreement and
the Administration Agreement, has been duly executed and delivered by the
Indenture Trustee and constitutes a legal, valid and binding obligation of
the Indenture Trustee, enforceable against the Indenture Trustee in
accordance with its respective terms, except that certain of such
obligations may be enforceable solely against the Indenture Trust Estate
and except that such enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium, liquidation, or other similar laws applicable
to banking corporations affecting the enforcement of creditors' rights
generally, and by general principles of equity, including, without
limitation, concepts of materiality, reasonableness, good faith and fair
dealing (regardless of whether such enforceability is considered in a
proceeding in equity or at law).
(iv) The Notes delivered on the date hereof have been duly
authenticated by the Indenture Trustee in accordance with the terms of the
Indenture.
(ff) The Representative shall have received an opinion of counsel to the
Eligible Lender Trustee, dated the Closing Date and satisfactory in form and
substance to the Representative and its counsel, to the effect that:
(i) [The Eligible Lender Trustee is a national banking association
duly incorporated or organized and validly existing under the laws of the
United States].
(ii) The Eligible Lender Trustee has the full corporate trust power
to accept the office of eligible lender trustee under the Trust Agreement
and to enter into and perform its obligations under the Trust Agreement,
the Sale and Servicing Agreement and, on behalf of the Trust, under the
Indenture, the Sale and Servicing Agreement, the Administration Agreement,
the Group I Interest Rate Swap, the Group II Cap Agreement, the Insurance
Agreement, the Basis Risk Cap Agreements, the Put Options and the
Guarantee Agreements.
(iii) The execution and delivery of the Trust Agreement and the Sale
and Servicing Agreement and, on behalf of the Trust, of the Indenture, the
Sale and Servicing Agreement, the Administration Agreement, the Group I
Interest Rate Swap, the Group II Cap Agreement, the Insurance Agreement,
the Basis Risk Cap Agreements, the Put Options and the Guarantee
Agreements, and the performance by the Eligible Lender Trustee of its
obligations under the Trust Agreement, the Indenture, the Sale and
Servicing Agreement, the Administration
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Agreement, the Group I Interest Rate Swap, the Group II Cap Agreement, the
Insurance Agreement, the Basis Risk Cap Agreements, the Put Options and
the Guarantee Agreements have been duly authorized by all necessary action
of the Eligible Lender Trustee and each has been duly executed and
delivered by the Eligible Lender Trustee.
(iv) The Trust Agreement, the Sale and Servicing Agreement and the
Administration Agreement constitute valid and binding obligations of the
Eligible Lender Trustee enforceable against the Eligible Lender Trustee in
accordance with their terms.
(v) The execution and delivery by the Eligible Lender Trustee of the
Trust Agreement and the Sale and Servicing Agreement and, on behalf of the
Trust, of the Indenture, the Sale and Servicing Agreement, the
Administration Agreement, the Group I Interest Rate Swap, the Group II Cap
Agreement, the Insurance Agreement, the Basis Risk Cap Agreements, the Put
Options and the Guarantee Agreements do not require any consent, approval
or authorization of, or any registration or filing with, any applicable
governmental authority.
(vi) The Certificates and the Trust Certificate have been duly
executed and delivered by the Eligible Lender Trustee, as eligible lender
trustee and authenticating agent. Each of the Notes has been duly executed
and delivered by the Eligible Lender Trustee, on behalf of the Trust.
(vii) Neither the consummation by the Eligible Lender Trustee of the
transactions contemplated in the Sale and Servicing Agreement, the
Indenture, the Trust Agreement or the Administration Agreement nor the
fulfillment of the terms thereof by the Eligible Lender Trustee will
conflict with, result in a breach or violation of, or constitute a default
under any law or the charter, by-laws or other organizational documents of
the Eligible Lender Trustee or the terms of any indenture or other
agreement or instrument known to such counsel and to which the Eligible
Lender Trustee or any of its subsidiaries is a party or is bound or any
judgment, order or decree known to such counsel to be applicable to the
Eligible Lender Trustee or any of its subsidiaries of any court,
regulatory body, administrative agency, governmental body or arbitrator
having jurisdiction over the Eligible Lender Trustee or any of its
subsidiaries.
(viii) There are no actions, suits or proceedings pending or, to the
best of such counsel's knowledge after due inquiry, threatened against the
Eligible Lender Trustee (as eligible lender trustee under the Trust
Agreement or in its individual capacity) before or by any governmental
authority that might materially and adversely affect the performance by
the Eligible Lender Trustee of its obligations under, or the validity or
enforceability of, the Trust Agreement or the Sale and Servicing
Agreement.
(ix) The execution, delivery and performance by the Eligible Lender
Trustee of the Sale and Servicing Agreement, the Indenture, the Trust
Agreement,
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the Administration Agreement, [the Group I Interest Rate Swap, the Group
II Cap Agreement, the Insurance Agreement, the Basis Risk Cap Agreements,
the Put Options] or any Guarantee Agreement will not subject any of the
property or assets of the Trust or any portion thereof, to any lien
created by or arising under the Eligible Lender Trustee that are unrelated
to the transactions contemplated in such agreements.
(gg) The Representative shall have received an opinion of counsel to the
Custodian, dated the Closing Date and satisfactory in form and substance to the
Representative and its counsel, to the effect that:
(i) [The Custodian is a national banking association, duly
organized, validly existing and in good standing under the laws of the
United States of America.]
(ii) The Custodian has the requisite power and authority to execute,
deliver and perform its obligations under the Custodial Agreement, and has
taken all necessary action to authorize the execution, delivery and
performance by it under the Custodial Agreement.
(iii) The Custodial Agreement, has been duly authorized by all
necessary action on the part of the Custodian and has been duly executed
and delivered by the Custodian, and constitutes a legal, valid and binding
obligation, enforceable against the Custodian in accordance with its
terms, subject to bankruptcy, insolvency, reorganization, moratorium and
other similar laws affecting creditors' rights generally, and by general
principles of equity, including, without limitation, concepts of
materiality, reasonableness, good faith and fair dealing (regardless of
whether such enforceability is considered in a proceeding in equity or at
law).
(hh) The Representative shall have received an opinion of Xxxxxx Xxxxxxxx
LLP, Delaware counsel to the Trust, dated the Closing Date, in form and
substance satisfactory to the Representative and its counsel.
(ii) The Representative shall have received an opinion of Xxxxxx Xxxxxxxx
LLP, counsel to [ ] in its capacity as Delaware Trustee under the Trust
Agreement, dated the Closing Date, in form and substance satisfactory to the
Representative and its counsel.
(jj) The Representative shall have received certificates dated the Closing
Date of any two of the Chairman of the Board, the President, any Executive Vice
President, Senior Vice President or Vice President, the Secretary, any Assistant
Secretary, the Treasurer, any Assistant Treasurer, the principal financial
officer or the principal accounting officer of KBUSA in which such officers
shall state that, to the best of their knowledge after reasonable investigation,
(i) the representations and warranties of KBUSA, contained in each Basic
Document to which it is a party, are true and correct in all material respects,
that KBUSA has complied with all agreements and satisfied all conditions on its
part to be performed or satisfied under such agreements, in whatever capacity it
is a party to such agreements, at or prior to the
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Closing Date, and that no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose have
been instituted or are contemplated by the Commission, and (ii) since [ ], [ ],
except as may be disclosed in the Prospectus or in such certificate, no material
adverse change, or any development involving a prospective material adverse
change, in or affecting particularly the business or properties of the Trust or
KBUSA, as applicable, has occurred.
(kk) The Representative shall have received certificates dated the Closing
Date of any two of the Chairman of the Board, the President, any Executive Vice
President, Senior Vice President or Vice President, the Secretary, any Assistant
Secretary, the Treasurer, any Assistant Treasurer, the principal financial
officer or the principal accounting officer of KBNA in which such officers shall
state that, to the best of their knowledge after reasonable investigation, (i)
the representations and warranties of KBNA contained in the Put Options are true
and correct in all material respects, that KBNA has complied with all agreements
and satisfied all conditions on its part to be performed or satisfied under such
agreements, in whatever capacity it is a party to such agreements, at or prior
to the Closing Date, and (ii) since [ ], [ ], except as may be disclosed in the
Prospectus or in such certificate, no material adverse change, or any
development involving a prospective material adverse change, in or affecting
particularly the business or properties of KBNA, has occurred.
(ll) The Representative shall have received certificates dated the Closing
Date of any two of the Chairman of the Board, the President, any Executive Vice
President, Senior Vice President or Vice President, the Secretary, any Assistant
Secretary, the Treasurer, any Assistant Treasurer, the principal financial
officer or the principal accounting officer of each of the Sub-Servicers in
which such officers shall state that, to the best of their knowledge after
reasonable investigation, (i) the representations and warranties of such
Sub-Servicer contained in the related Subservicing Agreement(s) are true and
correct in all material respects, and that such Sub-Servicer has complied with
all agreements and satisfied all conditions on its part to be performed or
satisfied under such agreements at or prior to the Closing Date, and (ii) since
[ ], [ ] except as may be disclosed in the Prospectus or in such certificate, no
material adverse change, or any development involving a prospective material
adverse change, in or affecting particularly the business or properties of such
Sub-Servicer, as applicable, has occurred.
(mm) The Representative shall have received evidence satisfactory to it
that, on or before the Closing Date, UCC-1 financing statements have been or are
being filed in the office of the Secretary of State of the States of Ohio,
Delaware, and Illinois, and in the District of Columbia, as applicable,
reflecting the following:
(i) transfer of the interest of the Seller in the Financed Student
Loans to the Depositor and the Depositor Eligible Lender Trustee; and
(ii) [reserved]; and
(iii) transfer of the interest of the Depositor (and the Depositor
Eligible Lender Trustee) in the Financed Student Loans and the proceeds
thereof to the Trust; and
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(iv) transfer of the interest of the Trust (and the Eligible Lender
trustee) in the Financed Student Loans and the proceeds thereof to the
Indenture Trustee; and the grant of the security interest by the Trust
(and the Eligible lender trustee) in the Financed Student Loans of the
rights of the Trust under the Group I Interest Rate Swap, the Group II Cap
Agreement and the Basis Risk Cap Agreements and the proceeds thereof to
the Indenture Trustee.
(nn) Each Class of Notes has been given at least the following ratings
from [Xxxxx'x Investors Service, Inc. ("Moody's"), and Standard & Poor's Ratings
Services, a division of The XxXxxx-Xxxx Companies, Inc. ("S&P" and each a
"Rating Agency")], the Certificates have been given ratings of at least [ ] from
Moody's and [ ] from S&P, and no Rating Agency shall have placed any class of
Notes or the Certificates under surveillance or review with possible negative
implications:
Class of Notes Moody's S&P
-------------- ------- -----
Class [ ] [Aaa] [AAA]
Class [ ] [Aaa] [AAA]
(oo) The issuance of the Notes and the Certificates shall not have
resulted in a reduction or withdrawal by any Rating Agency of the current rating
of any outstanding securities issued or originated by KBUSA.
(pp) [XXXX shall have furnished to the Representative a certificate of
XXXX, signed by the President or any Executive Vice President, dated the Closing
Date, to the effect that the signer of such certificate has carefully examined
the Prospectus (excluding any documents incorporated by reference therein) and
this Agreement and that, to the best of his knowledge any information with
respect to XXXX in the Prospectus, as of its date, did not contain any untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading.
(qq) [[PHEAA] shall have furnished to the Representative a certificate of
[PHEAA], signed by the President or any Senior Vice President, dated the Closing
Date, to the effect that the signer of such certificate has carefully examined
the Prospectus (excluding any documents incorporated by reference therein) and
this Agreement and that, to the best of his knowledge any information with
respect to [PHEAA] in the Prospectus, as of its date, did not contain any untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading.]
(rr) [ASA shall have furnished to the Representative a certificate of ASA,
signed by the President or any Senior Vice President, dated the Closing Date, to
the effect that the signer of such certificate has carefully examined the
Prospectus (excluding any documents incorporated by reference therein) and this
Agreement and that, to the best of his knowledge any information with respect to
ASA in the Prospectus, as of its date, did not contain any untrue
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statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading.]
(ss) [Each of Great Lakes and GLHEGC shall have furnished to the
Representative a certificate of each of Great Lakes and GLHEGC, signed by its
respective President or any Executive Vice President, dated the Closing Date, to
the effect that the signer of such certificate has carefully examined the
Prospectus (excluding any documents incorporated by reference therein) and this
Agreement and that, to the best of his knowledge any information with respect to
Great Lakes or GLHEGC, as applicable, in the Prospectus, as of its date, did not
contain any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. ]
(tt) [CSAC shall have furnished to the Representative a certificate of
CSAC, signed by the President or any Senior Vice President, dated the Closing
Date, to the effect that the signer of such certificate has carefully examined
the Prospectus (excluding any documents incorporated by reference therein) and
this Agreement and that, to the best of his knowledge any information with
respect to CSAC in the Prospectus, as of its date, did not contain any untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading.]
(uu) [HICA shall have furnished to the Representative a certificate of
HICA, signed by the President or any Senior Vice President, dated the Closing
Date, to the effect that the signer of such certificate has carefully examined
the Prospectus (excluding any documents incorporated by reference therein) and
this Agreement and that, to the best of his knowledge any information with
respect to HICA in the Prospectus, as of its date, did not contain any untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading.]
(vv) [NSLP shall have furnished to the Representative a certificate of
NSLP, signed by the President or any Senior Vice President, dated the Closing
Date, to the effect that the signer of such certificate has carefully examined
the Prospectus (excluding any documents incorporated by reference therein) and
this Agreement and that, to the best of his knowledge any information with
respect to NSLP in the Prospectus, as of its date, did not contain any untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading.]
(ww) [CSLP shall have furnished to the Representative a certificate of
CSLP, signed by the President or any Senior Vice President, dated the Closing
Date, to the effect that the signer of such certificate has carefully examined
the Prospectus (excluding any documents incorporated by reference therein) and
this Agreement and that, to the best of his knowledge any information with
respect to CSLP in the Prospectus, as of its date, did not contain any untrue
statement of a material fact or omit to state a material fact necessary in order
to make the
-27-
statements therein, in the light of the circumstances under which they were
made, not misleading.]
(xx) [ISAC shall have furnished to the Representative a certificate of
ISAC, signed by the President or any Senior Vice President, dated the Closing
Date, to the effect that the signer of such certificate has carefully examined
the Prospectus (excluding any documents incorporated by reference therein) and
this Agreement and that, to the best of his knowledge any information with
respect to ISAC in the Prospectus, as of its date, did not contain any untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading.]
(yy) [KHEAA shall have furnished to the Representative a certificate of
KHEAA, signed by the President or any Senior Vice President, dated the Closing
Date, to the effect that the signer of such certificate has carefully examined
the Prospectus (excluding any documents incorporated by reference therein) and
this Agreement and that, to the best of his knowledge any information with
respect to KHEAA in the Prospectus, as of its date, did not contain any untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading.]
(zz) [OSAC shall have furnished to the Representative a certificate of
OSAC, signed by the President or any Senior Vice President, dated the Closing
Date, to the effect that the signer of such certificate has carefully examined
the Prospectus (excluding any documents incorporated by reference therein) and
this Agreement and that, to the best of his knowledge any information with
respect to OSAC in the Prospectus, as of its date, did not contain any untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading.]
(aaa) [TSAC shall have furnished to the Representative a certificate of
TSAC, signed by the President or any Senior Vice President, dated the Closing
Date, to the effect that the signer of such certificate has carefully examined
the Prospectus (excluding any documents incorporated by reference therein) and
this Agreement and that, to the best of his knowledge any information with
respect to TSAC in the Prospectus, as of its date, did not contain any untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading.]
(bbb) [TGSLC shall have furnished to the Representative a certificate of
TGSLC, signed by the President or any Senior Vice President, dated the Closing
Date, to the effect that the signer of such certificate has carefully examined
the Prospectus (excluding any documents incorporated by reference therein) and
this Agreement and that, to the best of his knowledge any information with
respect to TGSLC in the Prospectus, as of its date, did not contain any untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading.]
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(ccc) The Representative shall have received a certificate signed by one
or more duly authorized officers of the Securities Insurer, dated the Closing
Date, to the effect that the information contained under the caption "The Group
II Insured Notes Guaranty Insurance Policy and the Securities Insurer" in the
Prospectus Supplement and the information incorporated by reference therein is
true and accurate in all material respects, and such other matters as the
Representative shall request.
(ddd) Each of the Basic Documents shall have been executed and delivered
by the parties thereto. Each of the Sub-Servicers shall have executed and
delivered the related Sub-Servicing Agreement. Each of the Guarantors shall have
executed and delivered the related Guarantee Agreement.
(eee) The Group II Insured Notes Guaranty Insurance Policy shall have been
issued and be validly existing as of the Closing Date.
(fff) The Notes shall have been issued and sold pursuant to the Note
Underwriting Agreement on the Closing Date.
KBUSA will provide or cause to be provided to the Representative copies of
each opinion delivered to the Securities Insurer and/or any Rating Agency
addressed to the Representative and such conformed copies of such of the
foregoing opinions, certificates, letters and documents as the Representative
reasonably requests.
7. Indemnification and Contribution. (a) The Depositor and KBUSA will
jointly and severally indemnify and hold each Underwriter harmless against any
losses, claims, damages or liabilities, joint or several, to which such
Underwriter may become subject under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in (x) the Registration Statement, the Preliminary
Prospectus Supplement, the Prospectus or any amendment or supplement thereto, or
arise out of or are based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading, and (y) the Prospectus or any amendment or
supplement thereto or any related Preliminary Prospectus Supplement, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading and will reimburse each
Underwriter for any legal or other expenses reasonably incurred by such
Underwriter in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred; provided, however,
that neither the Depositor nor KBUSA will be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement in or omission or alleged
omission from any of such documents in reliance upon and in conformity with the
Underwriter Information furnished to the Depositor or KBUSA by any Underwriter
through the Representative specifically for use therein.
(b) Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Depositor and KBUSA against any losses, claims, damages or
liabilities to which the Depositor or KBUSA may become subject, under the Act or
otherwise, insofar as such
-29-
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in (x) the Registration Statement, the Preliminary
Prospectus Supplement, the Prospectus or any amendment or supplement thereto, or
arise out of or are based upon the omission or the alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, and (y) the Prospectus or any amendment or
supplement thereto or any related Preliminary Prospectus Supplement, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading and in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with the Underwriter Information relating to such Underwriter
furnished to the Depositor or KBUSA by such Underwriter through the
Representative specifically for use therein, and will reimburse any legal or
other expenses reasonably incurred by the Depositor and KBUSA in connection with
investigating or defending any such loss, claim, damage, liability or action as
such expenses are incurred.
(c) Promptly after receipt by an indemnified party under this Section of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
subsection (a) or (b) above, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
such indemnifying party from any liability which it may have to any indemnified
party otherwise than under subsection (a) or (b) above, except, and only to the
extent, that the indemnifying party is materially prejudiced as a result of such
failure to receive notice. In case any such action is brought against any
indemnified party and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein and, to
the extent that it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party), and after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof and approval by the indemnified party of the counsel appointed
by the indemnifying party, the indemnifying party will not be liable to such
indemnified party under this Section for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation. In no event shall the
indemnifying party be liable for fees and expenses for more than one counsel
separate from their own counsel for all indemnified parties in connection with
any one action or related actions in the same jurisdiction arising out of the
same general allegations or circumstances unless any such indemnified party
shall have been advised by such counsel that there may be one or more legal
defenses available to it which are different from or additional to or in
conflict with those available to the other indemnified parties and in the
judgment of such counsel it is advisable for such indemnified party to employ
separate counsel. An indemnifying party will not, without the prior written
consent of the indemnified party, settle or compromise or consent to the entry
of any judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
(i) includes an unconditional release of each indemnified party from all
liability arising out of such action or claim and (ii)
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does not include a statement as to or an admission of fault, culpability or a
failure to act, by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section is unavailable or
insufficient to hold harmless an indemnified party under subsection (a) or (b)
above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnifying party as a result of the losses, claims, damages or
liabilities referred to in subsection (a) or (b) above (i) in such proportion as
is appropriate to reflect the relative benefits received by the Depositor and
KBUSA on the one hand and the Underwriters on the other from the offering of the
Certificates or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Depositor and KBUSA on the one hand and the Underwriters on the
other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities as well as any other relevant equitable
considerations. The relative benefits received by the Depositor and KBUSA on the
one hand and the Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering (before deducting
expenses) received by the Depositor and KBUSA bear to the total underwriting
discounts and commissions received by the Underwriters. The relative fault shall
be determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Depositor and KBUSA or by
the Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission. Each of the Depositor, KBUSA and the Underwriters agree that it would
not be just and equitable if contribution pursuant to this subsection (d) were
determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above in this
subsection (d). The amount paid or payable by an indemnified party as a result
of the losses, claims, damages or liabilities referred to in the first sentence
of this subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any action or claim which is the subject of this subsection (d).
Notwithstanding the provisions of this subsection (d), no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Certificates underwritten by it and offered and distributed
to the public exceeds the amount of any damages which such Underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission, except as may be provided in any
agreement among the Underwriters relating to the offering of the Certificates.
No person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The obligations of the Underwriters
in this subsection (d) to contribute are several in proportion their respective
underwriting obligations and not joint.
(e) The obligations of the Depositor and KBUSA under this Section shall be
in addition to any liability which the Depositor or KBUSA may otherwise have and
shall extend, upon the same terms and conditions, to each person, if any, who
controls any Underwriter within the meaning of the Act; and the obligations of
the Underwriters under this Section shall be in addition to any liability which
the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each director of the Depositor or KBUSA to each officer
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of the Depositor or KBUSA who has signed the Registration Statement and to each
person, if any, who controls the Depositor and KBUSA within the meaning of the
Act.
8. Survival of Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Depositor and KBUSA or its officers and of the several Underwriters set forth in
or made pursuant to this Agreement or contained in certificates of officers of
the Underwriters or officers of the Depositor and KBUSA submitted pursuant
hereto shall remain operative and in full force and effect, regardless of any
investigation or statement as to the results thereof, made by or on behalf of
any Underwriter, the Depositor and KBUSA or any of their respective
representatives, officers or directors or any controlling person, and will
survive delivery of and payment for the Certificates. If for any reason the
purchase of the Certificates by the Underwriters is not consummated, the
Depositor and KBUSA shall remain responsible for the expenses to be paid or
reimbursed by the Depositor and KBUSA pursuant to Section 5 and the respective
obligations of the Depositor and KBUSA and the Underwriters pursuant to Section
7 shall remain in effect. If for any reason the purchase of the Certificates by
the Underwriters is not consummated (other than pursuant to Section 9), the
Depositor and KBUSA will reimburse the Underwriters for all out-of-pocket
expenses (including fees and disbursements of counsel) reasonably incurred by
them in connection with the offering of the Certificates.
9. Failure to Purchase the Certificates. If any Underwriter or
Underwriters default in their obligations to purchase its portion of the
Certificates hereunder and the aggregate principal amount of the Certificates
that such defaulting Underwriter or Underwriters agreed but failed to purchase
does not exceed 10% of the total principal amount of the Certificates, the
Representative may make arrangements satisfactory to the Depositor and KBUSA for
the purchase of such Certificates by other persons, including any of the
Underwriters, but if no such arrangements are made by the Closing Date, the
non-defaulting Underwriters shall be obligated severally, in proportion to their
respective commitments hereunder, to purchase the Certificates that such
defaulting Underwriters agreed but failed to purchase. If any Underwriter or
Underwriters so default and the aggregate principal amount of the Certificates
with respect to such default or defaults exceeds 10% of the total principal
amount of the Certificates and arrangements satisfactory to the Representative
and the Depositor and KBUSA for the purchase of such Certificates by other
persons are not made within 36 hours after such default, this Agreement will
terminate without liability on the part of any non-defaulting Underwriter or the
Depositor and KBUSA except as provided in Section 7. As used in this Agreement,
the term "Underwriter" includes any person substituted for an Underwriter under
this Section. Nothing herein will relieve a defaulting Underwriter or
Underwriters from liability for its default.
10. Notices. All communications hereunder will be in writing and, if sent
to the Underwriters, will be mailed, delivered or telegraphed and confirmed to
the Representative at [ ], Attention: [ ]; if sent to KBUSA, will be mailed,
delivered or telegraphed and confirmed to it at Key Bank USA, National
Association, 000 Xxxxxxxx Xxxxxx, Xxxxxxxxx, XX 00000, Attention: Senior Vice
President, Education Lending; if sent to the Depositor, will be mailed,
delivered or telegraphed and confirmed to it at Key Consumer Receivables LLC,
000 Xxxxxx Xxxxxx, Xxxxxxxxx, XX 00000, Attention: [ ]; provided, however, that
any notice to an Underwriter pursuant to Section 7 will be mailed, delivered or
telegraphed and confirmed to such Underwriter. Any such notice will take effect
at the time of receipt.
-32-
11. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the officers and
directors and controlling persons referred to in Section 7, and no other person
will have any right or obligations hereunder.
12. Representation of Underwriters. The Representative shall act for the
several Underwriters in connection with this financing, and any action under
this Agreement taken by the Representative will be binding upon all the
Underwriters.
13. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
14. Applicable Law. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAWS
PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS; IN ADDITION EACH PARTY HERETO
IRREVOCABLY WAIVES ANY RIGHTS IT MIGHT HAVE TO TRIAL BY JURY.
-33-
If the foregoing is in accordance with the understanding of the
Representative of our agreement, kindly sign and return to us one of the
counterparts hereof, whereupon it will become a binding agreement between the
Depositor and KBUSA and the several Underwriters in accordance with its terms.
Very truly yours,
KEY BANK USA, NATIONAL
ASSOCIATION
By: _________________________
Name:
Title:
Very truly yours,
KEY CONSUMER RECEIVABLES LLC
By: _________________________
Name:
Title:
-34-
The foregoing Certificate Underwriting
Agreement is hereby confirmed
and accepted as of the date
first written above.
[ ]
Acting on behalf of itself and as
Representative of the several Underwriters.
By: _____________________________
Name:
Title:
By: _____________________________
Name:
Title:
-35-
SCHEDULE I
[ ]................................................................... $[ ]
[KeyBanc Capital Markets, a Division of McDonald Investments Inc.]...... $[ ]
Total................................................................... $[ ]
APPENDIX A
[See Appendix A to Sale and Servicing Agreement]
EXHIBIT A
[Form of Opinion of Counsel
to Key Bank USA, National Association]
EXHIBIT B
[Form of Opinion of Xxxxxxxx Xxxx LLP]
