EX.1.2
B&W Draft
12/10/96
SIGNET STUDENT LOAN TRUST 1996-A
$_________
FLOATING RATE ASSET BACKED CERTIFICATES
CERTIFICATE UNDERWRITING AGREEMENT
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[ ], 1996
CS First Boston Corporation
As Representative of the
several Underwriters
Xxxx Xxxxxx Xxxxx
Xxx Xxxx, XX 00000
Dear Sirs:
1. Introductory. Signet Bank, a Virginia banking corporation
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("Signet" or the "Seller"), proposes to cause Signet Student Loan Trust 1996-A
(the "Trust") to issue and sell $[ ] principal amount of its Floating
Rate Asset Backed Certificates (the "Certificates") to the underwriters
named in Schedule I hereto (the "Underwriters") for whom you (the
"Representative") are acting as representative. The assets of the Trust
include, among other things, a pool of student loans (the "Initial Financed
Student Loans") and certain monies due thereunder on and after [ ], 1996
(the "Cutoff Date"). Such Initial Financed Student Loans will be sold to the
Eligible Lender Trustee (as defined below) on behalf of the Trust by the Seller
pursuant to a sale agreement, dated as of [ ], 1996 (the "Loan Sale
Agreement") among the Trust, the Seller and The First National Bank of Chicago,
a national banking association, as eligible lender trustee (the "Eligible Lender
Trustee"). Under certain circumstances after the Closing Date (as defined
below), the Eligible Lender Trustee, acting on behalf of the Trust, may acquire
additional student loans ("Additional Acquired Student Loans", together with the
Initial Financed Student Loans, the "Financed Student Loans"). The Financed
Student Loans are to be serviced by Signet as master servicer (the "Master
Servicer") pursuant to a master servicing agreement, dated as of [ ],
1996 (the "Master Servicing Agreement") among the Trust, the Master Servicer and
the Eligible Lender Trustee. The Certificates will be issued pursuant to a
trust agreement to be dated as of [ ], 1996 (the "Trust Agreement"),
among the Seller, as Depositor, Signet Student Loan
Corporation, a Virginia corporation (the "Company"), and the Eligible Lender
Trustee. An individual residing in Delaware will be appointed as a co-trustee
under the Trust Agreement pursuant to a co-trustee agreement, dated as of
[ ], 1996 (the "Co-Trustee Agreement"), between such individual and the
Eligible Lender Trustee.
Simultaneously with the issuance and sale of the Certificates as
contemplated herein, the Trust will issue $[ ] principal amount of
its Floating Rate Class A-1 Asset Backed Notes and $[ ] principal
amount of its Floating Rate Class A-2 Asset Backed Notes (collectively, the
"Notes"). The Notes will be sold pursuant to an underwriting agreement dated
the date hereof (the "Note Underwriting Agreement") between the Seller and the
Underwriters. The Notes and the Certificates are hereinafter referred to
collectively as the "Securities."
Capitalized terms used and not otherwise defined herein shall have the
meanings given to them in Appendix A hereto.
2. Representations and Warranties of the Seller. (a) The Seller
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represents and warrants to and agrees with the several Underwriters that:
(i) The Seller meets the requirements for use of Form S-3 under
the Securities Act of 1933, as amended (the "Act"), and has filed with the
Securities and Exchange Commission (the "Commission") a registration
statement (Registration No. 33-94846) on such Form, including a related
preliminary basic prospectus and a preliminary prospectus supplement, for
the registration under the Act of the offering and sale of the Securities.
The Seller may have filed one or more amendments thereto, each of which
amendments has previously been furnished to the Representative. The Seller
will next file with the Commission (i) prior to the effectiveness of such
registration statement, an amendment thereto (including the form of final
basic prospectus and the form of final prospectus supplement relating to
the Securities), (ii) after effectiveness of such registration statement, a
final basic prospectus and a final prospectus supplement relating to the
Securities in accordance with Rules 430A and 424(b)(1) or (4) under the
Act, or (iii) a final basic prospectus and a final prospectus supplement
relating to the Securities in accordance with Rules 415 and 424(b)(2) or
(5).
In the case of clauses (ii) and (iii), the Seller has 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
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be included in the Prospectus with respect to the Certificates and the
offering thereof. As filed, such amendment and form of final prospectus
supplement, or 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 basic prospectus and preliminary prospectus supplement, if any,
that have previously been furnished to the Representative) as the Seller
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 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". "Basic 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 Basic 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 Securities that is first
filed pursuant to Rule 424(b) after the Execution Time, together with the
Basic Prospectus or, if no filing pursuant to Rule 424(b) is required,
shall mean the prospectus supplement relating to the Certificates,
including the Basic 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 Securities permitted to be
omitted from the Registration Statement when it becomes
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effective pursuant to Rule 430A. "Rule 415", "Rule 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 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 Basic 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 Basic 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 Basic Prospectus, to any Preliminary Prospectus Supplement or the
Prospectus, as the case may be, deemed to be incorporated therein by
reference.
(ii) On the Effective Date and on the date of this Agreement, the
Registration Statement did or will, and, when the Prospectus is first filed
(if required) in accordance with Rule 424(b) and on the Closing Date (as
defined below), the Prospectus (and any supplements thereto) will, comply
in all material respects with the applicable requirements of the Act, the
Exchange Act and the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"), and the respective rules and regulations of the Commission
thereunder (the "Rules and Regulations"); on the Effective Date, the
Registration Statement did not or will not contain any untrue statement of
a material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein not
misleading; and, on the Effective Date, the Prospectus (together with any
supplement thereto) will not, include 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; provided, however, that the Seller makes no
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representations or warranties as to the information contained in or omitted
from the Registration Statement or the Prospectus (or any supplement
thereto) in reliance upon and in conformity with information furnished in
writing to the Seller by any Underwriter through the Representative
specifically for use in the Registration Statement or the Prospectus (or
any supplement thereto).
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(iii) The Seller's representations and warranties in the Loan
Sale Agreement, the Administration Agreement and the Trust Agreement will
be true and correct in all material respects as of the Closing Date and
each such representation and warranty will be true and correct in all
material respects on each date thereafter if and to the extent that on such
date such representation and warranty is made again by the Seller pursuant
to the terms of the related agreement.
(iv) This Agreement has been duly authorized, executed and
delivered by the Seller. 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 the Seller is a party or by which the
Seller is bound or to which any of the properties of the Seller is subject
which could reasonably be expected to have a material adverse effect on the
transactions contemplated herein. The Seller has full power (corporate and
other) and authority to cause the Trust to authorize, issue and sell the
Certificates, all as contemplated by this Agreement.
(v) 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 the Seller or any of its affiliates or an
underwriter any brokerage or finder's fee or other fee or commission as a
result of any of the transactions contemplated by this Agreement.
(vi) 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.
(vii) The Seller's assignment and delivery of the Initial
Financed Student Loans to the Eligible Lender Trustee on behalf of the
Trust as of the Closing Date and of the Additional Acquired Student Loans
from time to time thereafter pursuant to the Loan Sale Agreement will vest
in the Eligible Lender Trustee on behalf of the Trust all the Seller's
right, title and interest therein, subject to no prior lien, mortgage,
security interest, pledge, adverse claim, charge or other encumbrance.
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(viii) The Trust's assignment of the Financed Student Loans to
the Indenture Trustee pursuant to the Indenture will vest in the Indenture
Trustee, for the benefit of the Noteholders, a first priority perfected
security interest therein, subject to no prior lien, mortgage, security
interest, pledge, adverse claim, charge or other encumbrance.
(b) The Seller hereby agrees with the Underwriters that, for all
purposes of this Agreement, the only information furnished to the Seller 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 with respect to stabilization
on the second page of, and the statements under the caption "Underwriting" in,
the preliminary prospectus and the Prospectus.
3. Purchase, Sale and Delivery of the Certificates. On the basis
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of the representations, warranties and agreements herein contained, but subject
to the terms and conditions herein set forth, the Seller 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 thereof, the respective principal amounts of the Certificates
set forth opposite the names of the Underwriters in Schedule I hereto.
The Seller will deliver the Certificates to the Representative for the
accounts of the Underwriters, against payment of the purchase price to or upon
the order of the Seller by wire transfer or check in Federal (same day) Funds,
at the office of Xxxxx & Xxxx llp, Xxx Xxxxx Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000-0000, at 10:00 A.M., New York time, on [ ], 1996, or at such
other time not later than seven full business days thereafter as the
Representative and the Seller 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 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, after the
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Registration Statement becomes 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.
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5. Covenants of the Seller. The Seller covenants and agrees with the
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several Underwriters that:
(a) The Seller will use its best efforts to cause the Registration
Statement, and any amendment thereto, if not effective at the Execution Time, to
become effective. Prior to the termination of the offering of the Certificates,
the Seller will not file any amendment of the Registration Statement or
supplement to the Prospectus unless the Seller 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), the Seller 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) The Seller 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; the Seller 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 the Seller will also advise the
Representative promptly of the effectiveness of the Registration Statement 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 the Seller 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 the
Registration Statement or supplement the Prospectus to comply with the Act or
the Exchange Act, the Seller promptly will prepare and file, or cause to be
prepared and filed, with the Commission an amendment or supplement which will
correct such
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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.
(d) As soon as practicable, but not later than the Availability Date
(as defined below), the Seller will cause the Trust to make generally available
to Certificateholders 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 original effective date
of the Registration Statement, 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) The Seller 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) The Seller will arrange for the qualification of the Certificates
for sale under the laws of such states as the several Underwriters may require
and will continue such qualifications 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, the
Seller 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 Master
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, the Seller
will furnish to the Representative (i) as soon as practicable after the end of
the fiscal year all documents required to be distributed to Certificateholders
or filed with the Commission on behalf of the Trust pursuant to the Exchange
Act, or any order of the Commission thereunder and (ii)
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from time to time, any other information concerning the Seller as the
Representative may reasonably request.
(i) On or before the Closing Date, the Seller shall xxxx its
accounting and other records, if any, relating to the Initial Financed Student
Loans and shall cause the Master Servicer to xxxx the computer records of the
Master Servicer relating to the Initial Financed Student Loans to show the
absolute ownership by the Eligible Lender Trustee on behalf of the Trust of the
Initial Financed Student Loans, and from and after the Closing Date the Seller
will take, and cause the Master Servicer to take, such actions with regard to
any Additional Acquired Student Loans at the time of the conveyance thereof to
the Trust, and neither the Seller nor the Master Servicer shall take any action
inconsistent with the ownership by the Eligible Lender Trustee on behalf of the
Trust of the Financed Student Loans, other than as permitted by the Loan Sale
Agreement or the Master Servicing Agreement.
(j) To the extent, if any, that the rating provided with respect to
the Certificates by the rating agency or agencies that initially rate the
Certificates is conditional upon the furnishing of documents or the taking of
any other actions by the Seller agreed upon on or prior to the Closing Date, the
Seller shall furnish or shall cause to be furnished 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 the Seller and any trust originated,
directly or indirectly, by the Seller 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) evidencing an
ownership interest in, student loans; provided, however, that this shall not be
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construed to prevent the sale of student loans by the Seller.
(l) The Seller will apply the net proceeds of the offering and the
sale of the Certificates and the Notes that it receives in the manner set forth
in the Prospectus under the caption "Use of Proceeds".
(m) The Seller will pay all expenses incident to the performance of
its 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 the Seller's counsel and accountants, (iv)
the qualification of the Certificates under securities laws in accordance with
the provisions of Section
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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 rating of the Certificates and (viii) the fees and expenses, if
any, incurred with respect to any filing with the National Association of
Securities Dealers, Inc.
6. Conditions of the Obligations of the Underwriters. The
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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 the Seller herein, to the accuracy of the written statements of officers
of the Seller made pursuant to the provisions of this Section, to the
performance by the Seller of its 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) On or prior to the Closing Date, you shall have received a letter
dated the Closing Date, in form and substance satisfactory to the Representative
and its counsel, from [ ] with respect to certain agreed-upon
procedures 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, the Seller, the Master Servicer or the Company which, in the judgment
of the Representative, materially impairs the investment quality of the
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Certificates or makes it impractical or inadvisable to market the Certificates;
(ii) any downgrading in the rating of any debt securities of the Seller or the
Master Servicer 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 the Seller or the Master Servicer (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 prices for trading on such exchange; (iv) any suspension
of trading of any securities of the Seller or the Master Servicer 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 major
hostilities in which the United States is involved, any declaration of war by
Congress, or any other substantial national or international calamity or
emergency if, in the judgment of the Representative, the effect of any such
outbreak, escalation, declaration, calamity or emergency makes it impractical or
inadvisable to proceed with completion of the sale of and payment for the
Certificates.
(e) The Representative shall have received an opinion of [ ],
General Counsel of Signet Bank, as counsel for the Seller, 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 an opinion of McGuire,
Woods, Battle & Xxxxxx, L.L.P., counsel to the Seller and the Trust, 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.
(g) The Representative shall have received an opinion addressed to the
several Underwriters of McGuire, Woods, Battle & Xxxxxx, L.L.P., in its capacity
as counsel for the Seller and the Trust, dated the Closing Date, in form and
substance satisfactory to the Representative and its counsel, to the effect that
the statements in the Prospectus under the headings "Certain Federal Income Tax
Consequences", "Certain State Tax Consequences" 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 Virginia law and ERISA.
(h) The Representative shall have received an opinion addressed to the
several Underwriters of McGuire, Woods, Battle & Xxxxxx, L.L.P., in its capacity
as counsel for the Seller, the
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Company and the Trust, dated the Closing Date, in form and substance
satisfactory to the Representative and its counsel, concerning (i) the true sale
of the Financed Student Loans from the Seller to the Trust and (ii) the
nonconsolidation of the Company with the Seller and the Seller's other
affiliates in the event of a bankruptcy or insolvency of the Seller or the
Seller's other affiliates.
(i) The Representative shall have received an opinion of Xxxxxxxx,
Xxxxxx & Finger, special Delaware counsel for the Trust, dated the Closing Date,
in form and substance satisfactory to the Representative and its counsel, to the
effect that:
(i) The Trust Agreement constitutes the valid and binding
obligation of the Eligible Lender Trustee, the Delaware Trustee, the
Depositor and the Company, enforceable against the Eligible Lender Trustee,
the Delaware Trustee, the Depositor and the Company, in accordance with its
terms subject to (i) applicable bankruptcy, insolvency, moratorium,
receivership, reorganization, fraudulent conveyance and similar laws
relating to and affecting the rights and remedies of creditors generally,
and (ii) principles of equity (regardless of whether considered and applied
in a proceeding in equity or at law).
(ii) The Trust has been duly formed and is validly existing as
a business trust under the Business Trust Statute. The Trust Agreement
authorizes the Trust to execute and deliver the Trust Agreement, the
Indenture, the Master Servicing Agreement, the Loan Sale Agreement and the
Administration Agreement to issue the Certificates and the Notes and to
grant the Trust Estate to the Indenture Trustee as security for the Notes.
(iii) Assuming that the Certificates have been duly executed
and issued by the Trust and duly authenticated by the Eligible Lender
Trustee in accordance with the Trust Agreement and delivered to and paid
for by the purchaser thereof pursuant to the Certificate Underwriting
Agreement, the Certificates have been validly issued and are entitled to
the benefits of the Trust Agreement.
(iv) Except for the timely filing in the future of continuation
statements with respect to the financing statements, no other filing is
required in the State of Delaware in order to make effective the lien of
the Indenture. Insofar as Article 9 of the Delaware Uniform Commercial
Code, 6 Del. C. (S)9-101 et seq. (the "UCC"), applies (without regard to
-- ---
conflict of laws principles) and assuming that the security interest in
that portion of the
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Collateral that consists of general intangibles and accounts, as defined
under the UCC, has been duly created and has attached, the Indenture
Trustee has a perfected security interest in such general intangibles and
accounts and the proceeds thereof and, assuming that the UCC search
accurately lists all of the financing statements filed naming the Trust as
debtor and describing any portion of the Collateral consisting of such
general intangibles and accounts and the proceeds thereof, such security
interest of the Indenture Trustee will be prior to the security interest of
all other creditors of the Trust whose security interests are perfected
solely by filing UCC financing statements in the State of Delaware,
excluding purchase money security interests under (S)9-312 of the UCC and
temporarily perfected security interests in proceeds under (S) 9-306 of the
UCC.
(v) Under (S)3805(b) of the Business Trust Statute, no creditor
of any Certificateholder shall have any right to obtain possession of, or
otherwise exercise legal or equitable remedies with respect to, the
property of the Trust except in accordance with the terms of the Trust
Agreement.
(vi) Under (S) 3805(c) of the Business Trust Statute, and
assuming that the Loan Sale Agreement conveys good title to the Initial
Financed Student Loans to the Trust as a true sale and not as a security
arrangement, the Trust rather than the Certificateholders is the owner of
the Initial Financed Student Loans.
(vii) The Delaware Trustee is not required to hold legal title
to the Trust Estate in order for the Trust to qualify as a business trust
under the Act.
(viii) The execution and delivery by the Eligible Lender
Trustee or the Delaware Trustee of the Trust Agreement and, on behalf of
the Trust, of the Trust Agreement, the Indenture, the Master Servicing
Agreement, the Loan Sale Agreement and the Administration Agreement do not
require any consent, approval or authorization of, or any registration of
filing with, any governmental authority of the State of Delaware, except
for the filing of the Certificate of Trust with the Secretary of State.
(ix) Neither the consummation by the Eligible Lender Trustee or
the Delaware Trustee of the transactions contemplated in the Trust
Agreement or, on behalf of the Trust, the transactions contemplated in the
Trust Agreement, the Indenture, the Master Servicing Agreement, the Loan
Sale Agreement and the Administration Agreement nor the fulfillment of the
terms thereof by the Eligible Lender Trustee or the Delaware Trustee will
conflict with or result
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in a breach or violation of any law of the State of Delaware.
(j) The Representative shall have received an opinion of the Law
Department of The First National Bank of Chicago, 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 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 Master Servicing Agreement, the Loan Sale Agreement and the
Co-Trustee Agreement and, on behalf of the Trust, under the Indenture, the
Master Servicing Agreement, the Loan Sale Agreement, the Administration
Agreement and the Guarantee Agreements.
(iii) The execution and delivery of the Trust Agreement, the
Master Servicing Agreement, the Loan Sale Agreement and the Co-Trustee
Agreement by the Eligible Lender Trustee and the Indenture, the Master
Servicing Agreement, the Loan Sale Agreement, the Administration Agreement
and the Guarantee Agreements by the Eligible Lender Trustee on behalf of
the Trust, and the performance by the Eligible Lender Trustee of its
obligations under the Trust Agreement, the Master Servicing Agreement, the
Loan Sale Agreement and the Co-Trustee Agreement, as well as the
performance by the Eligible Lender Trustee of its obligations on behalf of
the Trust under the Indenture, the Master Servicing Agreement, the Loan
Sale Agreement, the Administration Agreement 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 Master Servicing Agreement, the
Loan Sale Agreement and the Co-Trustee Agreement constitute valid and
binding obligations of the Eligible Lender Trustee enforceable against the
Eligible Lender Trustee in accordance with their terms, and the Indenture,
the Master Servicing Agreement, the Loan Sale Agreement, the Administration
Agreement and the Guarantee Agreements constitute the valid and binding
obligations of the Trust enforceable against the Trust in accordance with
their terms, except as the
14
enforceability thereof may be (a) limited by bankruptcy, insolvency,
reorganization, moratorium, liquidation or other similar laws affecting the
rights of creditors generally, and (b) subject to general principals of
equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law).
(v) The execution and delivery by the Eligible Lender Trustee of
the Trust Agreement, the Master Servicing Agreement, the Loan Sale
Agreement and the Co-Trustee Agreement and by the Eligible Lender Trustee
on behalf of the Trust of the Indenture, the Master Servicing Agreement,
the Loan Sale Agreement, the Administration Agreement and the Guarantee
Agreements do not require any consent, approval or authorization of, or any
registration or filing with, any applicable governmental authority which
has not been obtained or done.
(vi) Each of the Certificates has 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 Trust Agreement, the Master
Servicing Agreement, the Loan Sale Agreement or the Co-Trustee Agreement,
the consummation by the Trust of the transactions contemplated in the
Indenture or the Administration Agreement nor the fulfillment of the terms
thereof by the Eligible Lender Trustee or the Trust, as the case may be,
will conflict with, result in a breach or violation of, or constitute a
default under any law or the Articles of Association, 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 us 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
15
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, the Master Servicing
Agreement, the Loan Sale Agreement or the Co-Trustee Agreement.
(ix) The execution, delivery and performance by the Eligible
Lender Trustee of the Trust Agreement, the Master Servicing Agreement, the
Loan Sale Agreement and the Co-Trustee Agreement, and the execution,
delivery and performance by the Eligible Lender Trustee on behalf of the
Trust of the Indenture, the Master Servicing Agreement, the Loan Sale
Agreement, the Administration Agreement and any Guarantee Agreement will
not subject any of the property or assets of the Trust, or any portion
thereof, to any liens created by or arising under the Eligible Lender
Trustee that are unrelated to the transactions contemplated in such
agreements.
(k) The Representative shall have received an opinion of counsel
acceptable to it of each of [ ,
, , ,
and ], each dated the Closing Date, and satisfactory in
form and substance to the Representative and its counsel, to the effect that:
(i) The Guarantor has been duly incorporated and is validly
existing as a non-profit corporation in good standing under the laws of the
State of its incorporation 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 the Guarantor's
obligations under such Guarantee Agreement), and had at all relevant times,
and now has, the power, authority and legal right to guarantee the Financed
Student Loans covered by such Guarantee Agreement and to receive, subject
to compliance with all applicable conditions, restrictions and limitations
of the Higher Education Act and any rules, regulations and interpretations
thereunder, reinsurance payments from the Department with respect to claims
paid by it on such Financed Student Loans.
(ii) The Guarantor 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
16
to qualify or to obtain such license or approval would render the
Guarantor's obligation under the Guarantee Agreement to guarantee the
Financed Student 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 the Guarantor's obligations under such Guarantee Agreement)
have been duly authorized, executed and delivered by the Guarantor and are
the legal, valid and binding obligation of the Guarantor enforceable
against the Guarantor in accordance with their terms, except that (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 the Guarantor of the
Guarantee Agreement, nor the consummation by the Guarantor of the
transactions contemplated therein nor the fulfillment of the terms thereof
by the Guarantor will conflict with, result in a breach, violation or
acceleration of, or constitute a default under, any terms or provision of
the charter or by-laws of the Guarantor or of any indenture or other
agreement or instrument to which the Guarantor is a party or by which the
Guarantor is bound, or result in a violation of or contravene the terms of
any statute, order or regulation applicable to the Guarantor of any court,
regulatory body, administrative agency or governmental body having
jurisdiction over the Guarantor.
(v) There are no actions, proceedings or investigations pending
or, to the best of such counsel's knowledge after due inquiry, threatened
against the Guarantor before or by any governmental authority that might
materially and adversely affect the performance by the Guarantor of its
obligations under, or the validity or enforceability of, the Guarantee
Agreement.
(vi) The Guarantor is a "guarantor" covered by the provisions of
Section 432(o) of the Higher Education Act.
(l) The Representative shall have received an opinion addressed to
the several Underwriters of Xxxxx & Xxxx llp, in its capacity as special counsel
to the several Underwriters, dated the Closing Date, with respect to the
validity of the Certificates and the Notes and such other related matters as the
Representative shall reasonably require and the Seller and the
17
Company 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.
(m) The Representative shall have received an opinion of Xxxx, Xxxxxx
& Xxxxxxxxx, special student loan counsel to the several Underwriters, or in the
case of (iii) below, special student loan counsel to the Seller and 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 Basic Documents, and the transactions contemplated by the
Basic 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 Basic Documents and the
consummation of such transactions, the Financed Student 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 with respect thereto, to receive all applicable
federal assistance payments, including federal reinsurance and federal
interest subsidies and special allowance payments, with respect thereto.
(ii) To the extent that the statements in the Prospectus purport
to summarize or describe provisions of the Higher Education Act, or
constitute statements of matters of law or legal conclusions with respect
to the Higher Education Act, such statements have been prepared or reviewed
by such counsel and accurately describe the material consequences to
holders of Certificates under the Higher Education Act.
(iii) Such counsel has examined the Registration Statement and
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 Registration Statement or
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.
(iv) Each of the Seller and 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 Student
Loans.
18
(v) [ ] is a private non-profit Family
Federal Education Loan Program ("FFELP") guaranty agency (a "Guaranty
Agency") covered by the provisions of Section 432(o) of the Higher
Education Act. In the event that the United States Secretary of Education
(the "Secretary") determines that a Guaranty Agency is unable to meet its
insurance obligations under Title IV-B of the Higher Education Act of 1965,
as amended (the "Act"), the Secretary is required by Section 432(o) of the
Act to pay otherwise valid insurance claims submitted directly to the
Secretary by FFELP lenders on loans insured by such Guaranty Agency in the
full amount of the Guaranty Agency's insurance obligation thereon and in
accordance with insurance requirements no more stringent than those of the
Guaranty Agency.
(n) 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
Treasurer, any Assistant Treasurer, the Secretary, any Assistant Secretary, the
principal financial officer or the principal accounting officer of each of the
Seller and the Master Servicer in which such officers shall state that, to the
best of their knowledge after reasonable investigation, (i) the representations
and warranties of the Seller or the Master Servicer, as the case may be,
contained in the Trust Agreement, the Loan Sale Agreement, the Administration
Agreement and the Master Servicing Agreement, as applicable, are true and
correct in all material respects, that each of the Seller and the Master
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, in the case of the certificate from the Seller only, 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 December 31, 1995, 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, the Company, the Seller or
the Master Servicer, as applicable, has occurred.
(o) 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
Delaware and Illinois and the Commonwealth of Virginia reflecting the transfer
of the interest of the Seller in the Financed Student Loans to the Eligible
Lender Trustee on behalf of the Trust and the proceeds thereof to the Trust and
the grant of the security interest by
19
the Trust in the Financed Student Loans and the proceeds thereof to the
Indenture Trustee.
(p) The Representative shall have received a certificate, dated
the Closing Date, from a responsible officer acceptable to it of each Guarantor,
to the effect that such officer has reviewed the Prospectus Supplement and that
the information therein regarding the Guarantor is fair and accurate in all
material respects.
(q) The Certificates shall be rated at least "A" by Fitch
Investors Service, L.P., Xxxxx'x Investors Service, Inc. and Standard & Poor's
Ratings Services, and no rating agency shall have placed the Certificates under
surveillance or review with possible negative implications.
(r) 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 the Seller or any of its
affiliates.
(s) On the Closing Date, $[ ] aggregate principal amount of the
Notes shall have been issued and sold.
The Seller will provide or cause to be provided to the
Representative such conformed copies of such of the foregoing opinions,
certificates, letters and documents as the Representative reasonably requests.
7. Indemnification and Contribution. (a) The Seller will indemnify
--------------------------------
and hold each Underwriter harmless against any losses, claims, damages or
liabilities 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 the Registration Statement,
the preliminary Basic Prospectus, Preliminary Prospectus Supplement (if any),
the Basic Prospectus or 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 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 the Seller will
-------- -------
not 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
20
documents in reliance upon and in conformity with written information furnished
to the Seller by any Underwriter specifically for use therein.
(b) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Seller against any losses, claims, damages or liabilities
to which the Seller 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 the Registration Statement, the preliminary
Basic Prospectus, Preliminary Prospectus Supplement (if any), Basic Prospectus
or 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, 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 written information relating to such
Underwriter and furnished to the Seller by such Underwriter through the
Representative specifically for use therein, and will reimburse any legal or
other expenses reasonably incurred by the Seller 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
it from any liability which it may have to any indemnified party otherwise than
under subsection (a) or (b) above. 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
21
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 reasonable 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 includes an unconditional release of each indemnified
party from all liability arising out of such claim, action, suit or proceeding.
(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 Seller 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 Seller 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 Seller 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) of the
Certificates received by the Seller bear to the total underwriting discounts and
commissions applicable to the Certificates 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
Seller or by the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such untrue
statement or omission. The amount
22
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 underwriting discount
or commission applicable to the Certificates 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. 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.
(e) The obligations of the Seller under this Section shall be in
addition to any liability which the Seller 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 Seller, to each officer of the Seller
who has signed the Registration Statement and to each person, if any, who
controls the Seller within the meaning of the Act.
8. Survival of Representations and Obligations. The respective
-------------------------------------------
indemnities, agreements, representations, warranties and other statements of the
Seller 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
Seller 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 Seller 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 Seller
shall remain responsible for the expenses to be paid or reimbursed by the Seller
pursuant to Section 5 and the respective obligations of the Seller 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 because of a failure to satisfy the conditions set forth in items (iii),
(v) and (vi) of Section 6(d)), the Seller will reimburse the Underwriters for
all out-of-pocket expenses (including fees and disbursements of
23
counsel) reasonably incurred by them in connection with the offering of the
Certificates.
9. 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 Xxxx Xxxxxx Xxxxx, Xxx Xxxx, X.X. 00000, Xxxxxxxxx:
Investment Banking--Transactions Advisory Group; if sent to the Seller, will be
mailed, delivered or telegraphed, and confirmed to it at Signet Bank, 0 Xxxxx
0xx Xxxxxx, Xxxxxxxx, Xxxxxxxx 00000, Attention: Treasurer; 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.
10. 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.
11. Representation of Underwriters. The Representative shall act for
------------------------------
the several Underwriters in connection with this financing, and any action taken
by the Representative will be binding upon the Underwriters.
12. 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.
13. Applicable Law. This Agreement will be governed by, and
--------------
construed in accordance with, the laws of the State of New York.
24
If the foregoing is in accordance with the Representative's
understanding of our agreement, kindly sign and return to us one of the
counterparts hereof, whereupon it will become a binding agreement between the
Seller and the several Underwriters in accordance with its terms.
Very truly yours,
SIGNET BANK
By: ___________________________
Name:
Title:
The foregoing Certificate
Underwriting Agreement is
hereby confirmed and
accepted as of the date
first written above.
CS FIRST BOSTON CORPORATION
By:_______________________
Name:
Title:
Acting on behalf of itself and as
Representative of the several Underwriters
SCHEDULE I
Principal Amount of
Underwriter Certificates
--------------------------------- -------------------------
CS First Boston Corporation $
_____________________
[other Underwriters] $
_____________________
Total $
_____________________
APPENDIX A
[See Appendix A to Administration Agreement]
EXHIBIT A
[Letterhead of Signet Bank]
[ ], 1996
CS First Xxxxxx Xxxxxxxxxxx
Xxxx Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
[other Underwriters]
Re: Floating Rate Asset Backed Notes
and Floating Rate Asset Backed Certificates
-------------------------------------------
Gentlemen:
I am the General Counsel of Signet Bank (the "Seller") and have acted as
counsel to the Seller in connection with the issuance and sale by Signet Student
Loan Trust 1996-A (the "Trust") of (i) $[ ] principal amount of its
Floating Rate Class A-1 Asset Backed Notes and $[ ] principal amount of
its Floating Rate Class A-2 Asset Backed Notes (collectively, the "Notes")
pursuant to the Note Underwriting Agreement dated [ ], 1996 between the
Seller and the Underwriters named therein (the "Note Underwriting Agreement")
and (ii) Floating Rate Asset Backed Certificates in the aggregate principal
amount of $[ ] (the "Certificates") pursuant to the Certificate
Underwriting Agreement dated [ ], 1996 between the Seller and the
Underwriters named therein (the "Certificate Underwriting Agreement" and,
together with the Note Underwriting Agreement, the "Underwriting Agreements").
Except as otherwise indicated herein, capitalized terms are defined as set forth
in the Underwriting Agreements. As used herein, (i) "Principal Documents" shall
mean, collectively, the Trust Agreement, the Loan Sale Agreement, the
Administration Agreement and the Master Servicing Agreement.
A-1
Based upon and subject to the limitations and qualifications set forth
below, I am of the opinion that:
(1) The Seller has been duly organized and is validly existing as a banking
corporation in good standing under the laws of the Commonwealth of Virginia,
with full power (corporate and other) and authority to own its properties and to
conduct its business as now conducted by it and to enter into and perform its
obligations under the Underwriting Agreements and the Principal Documents, and
had, at all relevant times and now has the corporate power and authority, and
legal right, to acquire, own, sell and service the Initial Financed Student
Loans and any Additional Acquired Student Loans consistent with all applicable
conditions, restrictions and limitations of the Higher Education Act.
(2) The Seller has executed and delivered the written order to the Eligible
Lender Trustee to authenticate the Certificates and such action has been duly
authorized by the Seller. When the Certificates have been duly executed,
authenticated, and delivered in accordance with the Trust Agreement and the
Certificates have been delivered and paid for pursuant to the Certificate
Underwriting Agreement, the Certificates will be validly issued and entitled to
the benefits of the Trust Agreement, subject, as to the enforceability thereof,
to bankruptcy, reorganization, insolvency, moratorium and other laws affecting
creditors' rights generally and by the application of general principles of
equity.
(3) The Seller has executed and delivered the written order to the Eligible
Lender Trustee to execute and deliver the Issuer Order to the Indenture Trustee
and such action has been duly authorized by the Seller. When the Notes have
been duly executed, delivered, and authenticated in accordance with the
Indenture and delivered and paid for pursuant to the Note Underwriting
Agreement, the Notes will be validly issued and entitled to the benefits of the
Indenture, subject, as to the enforceability thereof, to bankruptcy,
reorganization, insolvency, moratorium and other laws affecting creditors'
rights generally and by the application of general principles of equity.
(4) The Seller has duly authorized, executed, and delivered the
Underwriting Agreements and the Principal Documents and such Principal Documents
are legal, valid and binding obligations of the Seller, enforceable against the
Seller, subject, as to the enforceability thereof, to bankruptcy,
reorganization, insolvency, moratorium and other laws affecting creditors'
rights generally and to the application of general principles of equity.
(5) Neither the transfer of the Initial Financed Student Loans or the
Additional Acquired Student Loans by the Seller to
A-2
the Eligible Lender Trustee on behalf of the Trust, nor the assignment by the
Seller of the Trust Estate to the Trust, nor the grant by the Trust of the
security interest in the Collateral to the Indenture Trustee pursuant to the
Indenture, nor the execution and delivery by the Seller of the Underwriting
Agreements and the Principal Documents, nor the consummation of the transactions
contemplated by the Underwriting Agreements or the Principal Documents nor the
performance by the Seller of its obligations thereunder will (i) violate the
Articles of Incorporation and by-laws, as amended, of the Seller, (ii) breach,
or result in a default under or acceleration of, any existing obligation of the
Seller in any indenture, agreement, or instrument known to me, after due inquiry
and reasonable investigation, which breach or default would reasonably be
expected to have a material adverse effect on the condition of the Seller,
financial or otherwise, or adversely affect the transactions contemplated by the
Principal Documents, (iii) violate or contravene the terms of any court order,
or (iv) violate applicable provisions of statutory law or regulation.
(6) There are no actions, proceedings or investigations pending against the
Seller or, to my knowledge, threatened against the Seller before any court,
administrative agency, or tribunal (i) asserting the invalidity of the Trust or
any of the Underwriting Agreements or Principal Documents, (ii) seeking to
prevent the consummation of any of the transactions contemplated by any of the
Underwriting Agreements or the Principal Documents or the execution and delivery
thereof, or (iii) that could reasonably be expected to materially and adversely
affect the enforceability of the Underwriting Agreements or Principal Documents
against the Seller or the ability of the Seller to perform its obligations
thereunder.
(7) No consent, approval, authorization, or order of, or filing with, any
court or governmental agency or body is required of the Seller for the
consummation of the transactions contemplated in the Underwriting Agreements or
Principal Documents, except such consents, approvals, authorizations, or orders
as have been obtained or such filings as have been made.
(8) Nothing has come to our attention that would lead us to believe that
the representations and warranties of the Seller contained in the Principal
Documents are other than as stated therein.
(9) The Company has been duly organized and is validly existing as a
corporation in good standing under the laws of the Commonwealth of Virginia,
with full power (corporate and other) and authority to own its properties and to
conduct its business
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as now conducted by it and to enter into and perform its obligations under the
Trust Agreement.
(10) The Company has duly authorized, executed, and delivered the Trust
Agreement and the Trust Agreement is a legal, valid and binding obligation of
the Company, enforceable against the Company, subject, as to the enforceability
thereof, to bankruptcy, reorganization, insolvency, moratorium and other laws
affecting creditors' rights generally and by the application of general
principles of equity.
(11) Neither the execution and delivery by the Company of the Trust
Agreement, nor the consummation of the transactions contemplated thereby nor the
performance by the Company of its obligations thereunder will (i) violate the
Articles of Incorporation and by-laws, as amended, of the Company, (ii) breach,
or result in a default under or acceleration of, any existing obligation of the
Company in any indenture, agreement, or instrument known to me, after due
inquiry and reasonable investigation, which breach or default would reasonably
be expected to have a material adverse effect on the condition of the Company,
financial or otherwise, or adversely affect the transactions contemplated by the
Principal Documents, (iii) violate or contravene the terms of any court order,
or (iv) violate applicable provisions of statutory law or regulation.
(12) There are no actions, proceedings or investigations pending against
the Company or, to my knowledge, threatened against the Company before any
court, administrative agency, or tribunal (i) asserting the invalidity of the
Trust Agreement or any of the other Principal Documents, (ii) seeking to prevent
the consummation of any of the transactions contemplated by any of the
Underwriting Agreements or the Principal Documents or the execution and delivery
thereof, or (iii) that could reasonably be expected to materially and adversely
affect the enforceability of the Trust Agreement against the Company or the
ability of the Company to perform its obligations thereunder.
(13) No consent, approval, authorization, or order of, or filing with, any
court or governmental agency or body is required of the Company for the
consummation of the transactions contemplated in the Trust Agreement, except
such consents, approvals, authorizations, or orders as have been obtained or
such filings as have been made.
(14) There are no legal or governmental proceedings pending or threatened
against the Seller, the Company, or the Master Servicer that are required to be
disclosed in the Registration Statement, other than those disclosed therein.
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(15) There are no contracts, indentures, mortgages, loan agreements,
notes, leases, or other instruments to which the Seller, the Company, or the
Master Servicer is a party that are required to be described or referred to in
the Registration Statement or to be filed as exhibits thereto other than those
described or referred to or filed or incorporated by reference as exhibits
thereto.
For purposes of this opinion, I have assumed that the Underwriting
Agreements and the Principal Documents have been duly executed and delivered by
all parties thereto (other than the Seller and the Company) and are valid and
binding upon and enforceable against such parties, subject, as to the
enforceability thereof, to bankruptcy, reorganization, insolvency, moratorium
and other laws affecting creditors' rights generally and by the application of
general principles of equity.
The opinions expressed herein are limited to matters of Federal law and the
laws of the Commonwealth of Virginia, without giving effect to principles of
conflicts of laws.
This opinion is rendered solely to the addressee hereof, for its use in
connection with the transactions contemplated by the Underwriting Agreements and
Principal Documents and may not be relied upon for any other purpose or by any
other person.
Very truly yours,
-----------------------------
[ ]
General Counsel
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EXHIBIT B
[Letterhead of McGuire, Woods, Battle & Xxxxxx, L.L.P.]
[ ], 1996
CS First Xxxxxx Xxxxxxxxxxx
Xxxx Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
[other Underwriters]
Re: Floating Rate Asset Backed Notes
and Floating Rate Asset Backed
Certificates
--------------------------------
Gentlemen:
We have acted as counsel to Signet Bank (the "Seller") and Signet
Student Loan Trust 1996-A (the "Trust") in connection with the issuance by the
Trust of the Floating Rate Class A-1 Asset Backed Notes in the aggregate
principal amount of $_______ and the Floating Rate Class A-2 Asset Backed Notes
in the aggregate principal amount of $________ (collectively, the "Notes") and
the Floating Rate Asset Backed Certificates in the aggregate principal amount of
$____________. This opinion letter is furnished to you pursuant to Section 6(f)
of the Note Underwriting Agreement (the "Note Underwriting Agreement") dated
[ ], 1996 between the Seller and the Underwriters named therein and
Section 6(f) of the Certificate Underwriting Agreement (the "Certificate
Underwriting Agreement") dated [ ], 1996 between the Seller and the
Underwriters named therein. Except as otherwise indicated herein, capitalized
terms used in this opinion letter are defined as set forth in the Underwriting
Agreements.
We have examined such documents, records and matters of law as we have
deemed necessary for purposes of this opinion letter, and based thereupon and
subject to the foregoing, we are of the opinion that:
(1) The Indenture creates a valid security interest in the Financed
Student Loans, including all moneys paid thereunder on or after the Cutoff
Date, in favor of the
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Indenture Trustee, as trustee for the benefit of the Noteholders, that has
been duly perfected by the filing of financing statements executed by the
Eligible Lender Trustee in the offices indicated in Schedule __ hereto,
provided, that, this opinion does not in any way derogate the conclusion
expressed in paragraph ___ hereto [true sale paragraph]. The filing of
such financing statements has perfected a first priority security interest
in such Student Loans, including all moneys paid thereunder, except for
Liens the priority of which is determined under the provisions of
applicable law without regard to the filing of record of a financing
statement in the offices listed on Schedule __ hereto or Liens the priority
of which does require such a filing, but, upon such filing, may relate back
to a date prior to the date on which the security interest was perfected.
No filings or other actions, other than the filing of appropriate UCC
continuation statements, are necessary to maintain the perfection and
priority of such security interest. We call your attention to the fact
that unless appropriate financing statements are timely filed in the
appropriate offices, perfection of the security interest in the Financed
Student Loans, including all moneys paid thereunder, will be terminated if
the Trust hereafter changes its name, identity or corporate structure so
that the financing statements filed in the offices indicated on Schedule __
hereto become seriously misleading.
(2) A security interest in the Financed Student Loans may, pursuant to
the provisions of 20 U.S.C. (S) 1087-2(d)(3), be perfected in the manner
provided by the UCC for perfection of a security interest in accounts.
(3) The Seller is not, and will not as a result of the offer and sale
of the Notes and Certificates as contemplated in the Prospectus and the
Note Underwriting Agreement and the Certificate Underwriting Agreement
become, an "investment company" as defined in the Investment Company Act or
a company "controlled by" an "investment company" within the meaning of the
Investment Company Act.
(4) All actions required to be taken and all filings required to be
made by the Seller or the Trust under the Act and the Exchange Act prior to
the sale of the Notes and the Certificates have been duly taken or made.
(5) The Trust Agreement need not be qualified under the Trust
Indenture Act of 1939, and the Trust is not required to register under the
Investment Company Act.
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(6) The Indenture has been duly qualified under the Trust Indenture
Act.
(7) The Trust has been duly formed, is validly existing and is in good
standing under the laws of the State of Delaware, with full power and
authority to own its assets and conduct its business as described in the
Prospectus.
(8) The Trust has duly authorized the Indenture, the Loan Sale
Agreement, the Master Servicing Agreement and the Administration Agreement,
and, when duly executed and delivered by the other parties thereto, they
will be valid and binding obligations of the Trust, enforceable against the
Trust in accordance with their terms, subject, as to the enforceability
thereof, to bankruptcy, reorganization, insolvency, moratorium and other
laws affecting creditors' rights generally and by the application of
general principles of equity.
(9) The Registration Statement has become effective under the Act; any
required filing of the Prospectus (and any Supplement thereto) pursuant to
Rule 424(b) promulgated under the Act has been made in the manner and
within the time period required under such rule; no stop order suspending
the effectiveness of the Registration Statement has been issued and, to our
knowledge, no proceedings for that purpose are pending or threatened by the
Commission.
(10) The Basic Documents, and the transactions contemplated by the
Basic Documents, conform in all material respects to the applicable
requirements of the Higher Education Act, and, upon the due authorization,
execution and delivery of the Basic Documents and the consummation of such
transactions, the Financed Student 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 with respect thereto, to receive all applicable federal
assistance payments, including federal reinsurance and federal interest
subsidies and special allowance payments, with respect thereto.
(11) We have examined the Registration Statement and the Prospectus
(and any Supplement thereto), and nothing has come to our attention that
would lead us to believe that, solely with respect to the Higher Education
Act and the student loan business, the Registration Statement or the
Prospectus or any amendment or supplement thereto as of the respective
dates thereof or on the Closing Date contains an
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untrue statement of a material fact or omits to state a material fact
necessary in order to make the statements therein not misleading.
(12) 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 Student Loans.
(13) The statements contained in the Prospectus under the headings
"Risk Factors -- Certain Legal Aspects" and "Certain Legal Aspects of the
Student Loans," to the extent that they describe legal matters, present
fair summaries of such legal matters.
(14) The statements contained in the Prospectus under the captions
"Description of the Securities," "Description of the Transfer and Servicing
Agreements, "Description of the Notes" and "Description of the
Certificates," insofar as such statements purport to summarize the
provisions of the Certificates, the Notes, the Indenture, the
Administration Agreement, the Loan Sale Agreement, the Master Servicing
Agreement and the Trust Agreement, present fair summaries of such
provisions.
We have participated in the preparation of the Registration Statement
and the Prospectus (and any supplement thereto). From time to time we have had
discussions with the officers and employees of the Seller and your employees and
counsel concerning the information contained in the Registration Statement and
the Prospectus (and any supplement thereto). Based thereupon we are of the
opinion that (a) the Registration Statement (except for the financial
statements, financial schedules and other numerical, financial and statistical
information contained therein and the Form T-1 included therein, as to all of
which we express no view) at the time the Registration Statement became
effective under the Act complied as to form in all material respects with the
Act and the Trust Indenture and the rules and regulations thereunder and (b) the
Prospectus (and any supplement thereto) (except for the financial statements,
financial schedules and other numerical, financial and statistical information
contained therein, as to all of which we express no view) as of its date
complied as to form with the Act and the rules and regulations thereunder.
Based upon the participation and discussions described above, no facts have come
to our attention to cause us to believe that (a) the Registration Statement
(except for the financial statements, financial schedules and other numerical,
financial and statistical information contained therein, as to which we express
no view) at the time the Registration Statement became effective under the
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Act contained any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading or (b) the Prospectus (and any Supplement thereto)
(except for the financial statements, financial schedules and other numerical,
financial and statistical information contained therein, as to all of which we
express no view) as of its date or the date hereof contained or contains any
untrue statement of a material fact or omitted or omits 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.
[McGuire, Woods, Battle & Xxxxxx, L.L.P. will rely on the opinion of Xxxxx
& Xxxx llp with respect to certain matters of New York law and on Xxxxxxxx,
Xxxxxx & Finger with respect to certain matters of Delaware law.]
Very truly yours,
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