Exhibit 1.2
SIGNET STUDENT LOAN TRUST 1996-A
$14,846,000
FLOATING RATE ASSET BACKED CERTIFICATES
CERTIFICATE UNDERWRITING AGREEMENT
December 19, 1996
Credit Suisse First Boston Corporation
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Dear Sirs:
1. Introductory. Signet Bank, a Virginia banking corporation
("Signet" or the "Seller"), proposes to cause Signet Student Loan Trust 1996-A
(the "Trust") to issue and sell $14,846,000 principal amount of its Floating
Rate Asset Backed Certificates (the "Certificates") to you as the underwriter
(the "Underwriter"). The assets of the Trust include, among other things, a pool
of student loans (the "Initial Financed Student Loans") and certain monies due
thereunder after November 1, 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
November 1, 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
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 November 1, 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 November 1, 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 November 1, 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 $252,000,000 principal amount of
its Floating Rate Class A-1 Asset Backed Notes and $161,439,000 principal amount
of its Floating Rate Class A-2 Asset Backed Notes (collectively, the "Notes"). A
portion of the Notes will be sold pursuant to an underwriting agreement dated
the date hereof (the "Note Underwriting Agreement") between the Seller and the
you as representative of the several underwriters named therein. 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 represents and warrants to and agrees with the Underwriter 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 you. 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 be included in the Prospectus with respect to
the Certificates and the offering thereof. As filed, such
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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
you shall agree in writing to a modification, shall be in all
substantive respects in the form furnished to you 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 you) as the Seller has advised you, 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 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
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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 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 you
specifically for use in the Registration Statement or the Prospectus
(or any supplement thereto).
(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
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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 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.
(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
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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 Underwriter that, for
all purposes of this Agreement, the only information furnished to the Seller by
the Underwriter 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 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 Underwriter, and the Underwriter agrees to purchase
from the Trust, at a purchase price of 99.20% of the principal amount thereof,
$14,846,000 principal amount of the Certificates.
The Seller will deliver the Certificates to you for the
accounts of the Underwriter, 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 November 1, 1996, or at such other
time not later than seven full business days thereafter as you 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 Underwriter. It is understood that, after
the Registration Statement becomes effective, the Underwriter proposes to offer
the Certificates for sale to the public (which may include selected dealers) as
set forth in the Prospectus. After the Certificates are released for sale to the
public, the Underwriter may vary from time to time the public offering price,
selling concessions and reallowances to dealers that are members of the National
Association of Securities Dealers, Inc. ("NASD") and other terms of sale
hereunder and under such selling arrangements.
5. Covenants of the Seller. The Seller covenants and
agrees with the Underwriter that:
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(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 you a
copy for your review prior to filing and will not file any such proposed
amendment or supplement to which you reasonably object. 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 you of such timely filing.
(b) The Seller will advise you 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 your consent prior to the Closing
Date, and thereafter will not effect any such amendment or supplementation
(other than an amendment or supplementation which provides solely for the
issuance by another trust of other series of securities) to which you reasonably
object; the Seller will also advise you 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 (other than an amendment or
supplementation which provides solely for the issuance by another trust of other
series of securities); and the Seller will also advise you promptly of the
effectiveness of the Registration Statement and of any amendment or supplement
to the Registration Statement or the Prospectus (other than an amendment or
supplementation which provides solely for the issuance by another trust of other
series of securities) 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
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the Commission an amendment or supplement which will correct such statement or
omission, or an amendment or supplement which will effect such compliance.
Neither your consent to, nor your delivery 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 you 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 Underwriter reasonably requests.
(f) The Seller will assist you in arranging for the
qualification of the Certificates for sale under the laws of such states as the
Underwriter may require and will continue such qualifications in effect so long
as required for the distribution; provided, however, that neither the Seller nor
the Trust shall be required to qualify to do business in any jurisdiction in
which it is not now qualified or to take any action which would subject it to
general or unlimited service of process in any jurisdiction in which it is not
now subject to service of process.
(g) For a period from the date of this Agreement until the
retirement of the Certificates, or until such time as the Underwriter shall
cease to maintain a secondary market in the Certificates, whichever occurs
first, the Seller will deliver to you 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 practicable after such statements and reports
are furnished to the Indenture Trustee or the Eligible Lender Trustee.
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(h) So long as any of the Certificates are outstanding, the
Seller will furnish to you (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) from time to time, any other
information concerning the Seller's student lending business or the transaction
contemplated hereby as you 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 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
Underwriter at the time it is delivered to the rating agencies.
(k) For the period beginning on the date of this Agreement and
ending on 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 Underwriter, 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
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".
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(m) The Seller will pay all expenses incident to the
performance of its obligations under this Agreement, including fees and expenses
relating to (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 Underwriter, (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 5(f), including filing fees and the fees and disbursements of counsel
for you 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 Underwriter of copies of the Registration Statement as
originally filed and of each amendment thereto, (vi) the printing and delivery
to you 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. It is understood that, except as otherwise specifically provided
herein, the Underwriter will pay all of their own costs and expenses (including
the fees and disbursements of Xxxxx & Wood LLP, transfer taxes on resale of the
Certificates by them and any advertising expenses incurred by them).
6. Conditions of the Obligations of the Underwriter. The
obligations of the Underwriter 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 Underwriter.
(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 you, shall be contemplated by the Commission.
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(c) On or prior to the Closing Date, you shall have received a
letter dated the Closing Date, in form and substance reasonably satisfactory to
you and your counsel, from KPMG Peat Marwick with respect to certain agreed-upon
procedures substantially in the form of the drafts to which you have previously
agreed and otherwise in form and substance reasonably satisfactory to you and
your 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 your reasonable judgment, materially impairs the investment quality of the
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) which in your reasonable
judgment materially impairs the investment quality of the Certificates or makes
it impractical or inadvisable to market the Certificates; (iii) any suspension
or material 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 your reasonable judgment, 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) You shall have received an opinion of Winston & Xxxxxx,
special Illinois counsel to Signet Bank dated the Closing Date, in the form
attached hereto as Exhibit A, or as is otherwise satisfactory in form and
substance to you and your counsel.
(f) You 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 you and your counsel.
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(g) You shall have received an opinion addressed to the
Underwriter 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 you and your counsel, to the effect that the
statements in the Prospectus under the headings "Federal Income Tax
Consequences" and "State Tax Consequences" and in the Prospectus Supplement
under the heading "Federal Income Tax and State Consequences" 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 federal and
Maryland law.
(h) You shall have received an opinion addressed to the
Underwriter of McGuire, Woods, Battle & Xxxxxx, L.L.P., in its capacity as
counsel for the Seller, the Company and the Trust, dated the Closing Date, in
form and substance satisfactory to you and your counsel, concerning (i) the true
sale of or security interest in the Financed Student Loans from the Seller to
the Trust and (ii) the nonconsolidation of the Company with the Seller and the
Company with its parent, Signet Banking Corporation in the event of a bankruptcy
or insolvency of the Seller or Signet Banking Corporation, respectively.
(i) You 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 you and your 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.
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(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. ss.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 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 ss.9-312 of
the UCC and temporarily perfected security interests in proceeds under
ss. 9-306 of the UCC.
(v) Under ss.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 ss. 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
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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 in
a breach or violation of any law of the State of Delaware.
(j) You 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 you and your
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
14
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 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 principles 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
15
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 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) You shall have received an opinion of counsel acceptable
to you of each of Texas Guaranteed Student Loan Corporation, United Student Aid
Funds and Educational Credit Management Corporation (each a "Guarantor"), each
dated the Closing Date, and satisfactory in form and substance to you and
your 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
16
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 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
17
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) You shall have received an opinion addressed to the
Underwriter of Xxxxx & Xxxx LLP, in its capacity as special counsel to the
Underwriter, dated the Closing Date, with respect to the validity of the
Certificates and the Notes and such other related matters as you shall
reasonably require and the Seller and the 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) You shall have received an opinion of Xxxx, Xxxxxx &
Xxxxxxxxx, special student loan counsel to the Underwriter, 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 you
and your 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
18
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.
(v) Each Guarantor 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.
(vi) A security interest in the Financed Student
Loans may, pursuant to the provisions of 20 U.S.C. ss. 1047- 2(d)(3),
be perfected in the manner provided in the Uniform Commercial Code for
perfection of a security interest in accounts.
(n) You 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
19
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) You 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,
Maryland and Illinois and the State Corporation Commission of 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 the
Trust in the Financed Student Loans and the proceeds thereof to the Indenture
Trustee.
(p) You 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, $413,439,000 aggregate principal
amount of the Notes shall have been issued and sold.
The Seller will provide or cause to be provided to you such
conformed copies of such of the foregoing opinions, certificates, letters and
documents as you reasonably request.
7. Indemnification and Contribution. (a) The Seller will
indemnify and hold the Underwriter harmless against any losses, claims, damages
or liabilities to which the Underwriter may become subject, under the Act or
otherwise, insofar as such
20
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 any legal or other expenses reasonably incurred
by the 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 documents in reliance upon and in conformity with written
information furnished to the Seller by you specifically for use therein,
provided, further, that the foregoing indemnity agreement is subject to the
condition that insofar as it relates to any untrue statement, alleged untrue
statement or omission made in any Preliminary Prospectus but eliminated or
remedied in the Prospectus, such indemnity shall not inure to the benefit of the
Underwriter from whom a person asserting any loss, claim, damage or liability
purchased Certificates which are the subject thereof, if a copy of the
Prospectus was furnished to the Underwriter and such Prospectus was required by
the Act to be sent or given to such person with or prior to the written
confirmation of sale of such Certificates to such person.
(b) The Underwriter agrees 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 you and furnished to
the Seller by you 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
21
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 elect by written notice, 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
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
22
indemnified party under subsection (a) or (b) above, then each indemnifying
party shall contribute to the amount paid or payable by such indemnified 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 Underwriter
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 Underwriter 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 Underwriter 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 Underwriter. 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 Underwriter and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. 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), the Underwriter shall not 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 the
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
the Underwriter within the meaning of the Act; and the obligations of the
Underwriter under this Section shall be in addition to any
23
liability which the Underwriter 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 Underwriter 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 the 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 Underwriter 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
Underwriter pursuant to Section 7 shall remain in effect. If for any reason the
purchase of the Certificates by the Underwriter 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 Underwriter for all
out-of-pocket expenses (including fees and disbursements of counsel) reasonably
incurred by it in connection with the offering of the Certificates.
9. Notices. All communications hereunder will be in writing
and, if sent to the Underwriter, will be mailed, delivered or telegraphed and
confirmed to the Underwriter 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 the Underwriter pursuant to Section 7 will
be mailed, delivered or telegraphed and confirmed to the 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. Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be
24
an original, but all such counterparts shall together constitute one and the
same Agreement.
12. Applicable Law. This Agreement will be governed by, and
construed in accordance with, the laws of the State of New York.
25
If the foregoing is in accordance with the your 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
Underwriter in accordance with its terms.
Very truly yours,
SIGNET BANK
By: /s/ Xxxxxxx Xxxxxxx
___________________________
Name: Xxxxxxx Xxxxxxx
Title: Senior Vice President
The foregoing Certificate Underwriting Agreement is hereby confirmed and
accepted as of the date first written above.
CREDIT SUISSE FIRST BOSTON CORPORATION
By: /s/ Xxxx Xxxxxx
_______________________
Name: Xxxx Xxxxxx
Title: Director
26
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
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
Underwriter 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 Underwriter 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 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 Student Loans by the Seller to the
A-2
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
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 Underwriter named therein and Section 6(f) of
the Certificate Underwriting Agreement (the "Certificate Underwriting
Agreement") dated [ ], 1996 between the Seller and the Underwriter 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. ss. 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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