EXECUTION COPY
KEYCORP STUDENT LOAN TRUST 2001-A
$98,000,000
FLOATING RATE CLASS I-A-1 ASSET BACKED NOTES
$241,500,000
FLOATING RATE CLASS I-A-2 ASSET BACKED NOTES
$10,500,000
FLOATING RATE CLASS I-B ASSET BACKED NOTES
$67,800,000
FLOATING RATE CLASS I-A-1 ASSET BACKED NOTES
$382,200,000
FLOATING RATE CLASS II-A-2 ASSET BACKED NOTES
KEY BANK USA, NATIONAL ASSOCIATION
KEY CONSUMER RECEIVABLES LLC
NOTE UNDERWRITING AGREEMENT
September 6, 2001
Deutsche Banc ▇▇▇▇. ▇▇▇▇▇
As Representative of the
several Underwriters
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇.▇. 10019
Dear Sirs:
1. INTRODUCTORY. Key Consumer Receivables LLC, a Delaware limited
liability company, (the "Depositor"), proposes to cause KeyCorp Student Loan
Trust 2001-A (the "Trust") to issue and sell $98,000,000 principal amount of its
Floating Rate Class I-A-1 Asset Backed Notes (the "Class I-A-1 Notes"),
$241,500,000, principal amount of its Floating Rate Class I-A-2 (the "Class
I-A-2 Notes"), $10,500,000, principal amount of its Floating Rate Class I-B (the
"Class I-B Notes"), $67,800,000, principal amount of its Floating Rate Class
II-A-1 (the "Class II-A-1 Notes"), and $382,200,000, principal amount of its
Floating Rate Class II-A-2 Notes (the "Class II-A-2 Notes" and together with the
Class I-A-1 Notes, the Class I-A-2 Notes, the Class I-B Notes and the Class
II-A-1 Notes, the "Notes") to the underwriters named in Schedule I hereto (the
"Underwriters"), for whom you (the "Representative") are acting as
representative. The Trust was formed pursuant to the Trust Agreement, dated as
of August 20, 2001, as amended and restated by the Amended and Restated Trust
Agreement, dated as of September 1, 2001 (as further amended and supplemented
from time to time, collectively, the "Trust Agreement") among the Depositor,
Bank One, National Association, as Eligible Lender Trustee (the "Eligible Lender
Trustee") and Bank One Delaware, Inc., as Delaware trustee (the "Delaware
Trustee"). The assets of the Trust include certain graduate and undergraduate
student loans (collectively, the "Initial Financed Student Loans"). Such Initial
Financed Student Loans will be acquired by the Trust from the Depositor on or
about September 14, 2001 (the "Closing Date"). The Initial Financed Student
Loans will be divided into two pools of student loans, the first group will
consist of Financed Student Loans that are reinsured by the United States
Department of Education (the "Department") (collectively, the "Financed Federal
Loans"). The second group will consist of (i) Financed Student Loans that are
not guaranteed by any party nor reinsured by the Department (collectively
"Non-Guaranteed Private Loans,") and (ii) Financed Student Loans that are not
reinsured by the Department or any other government agency but are guaranteed by
a private guarantor (collectively, "Guaranteed Private Loans" and together with
the Non-Guaranteed Private Loans, the "Financed Private Loans"). All Financed
Student Loans that are part of the first group described above are referred to
as the "Group I Student Loans" and all Financed Student Loans that are part of
the second group described above are referred to as the "Group II Student
Loans." The Depositor will purchase all of the Group II Student Loans and a
portion of the Group I Student Loans from Key Bank USA, National Association, a
national banking association ("KBUSA," and in such capacity, a "Seller"),
pursuant to the KBUSA Student Loan Transfer Agreement, dated as of September 1,
2001 (the "KBUSA Student Loan Transfer Agreement") between KBUSA, the Depositor
and Bank One, National Association, as eligible lender trustee on behalf of the
Depositor (the "Depositor Eligible Lender Trustee") and will purchase a majority
of the Group I Student Loans from Key Consumer QSPE LLC ("QSPE" and also a
"Seller," and collectively with KBUSA, the "Sellers") pursuant to the QSPE
Student Loan Transfer Agreement (the "QSPE Student Loan Transfer Agreement," and
together with the KBUSA Student Loan Transfer Agreement, the "Student Loan
Transfer Agreements") dated as of September 1, 2001 between Key Consumer QSPE
LLC, the Depositor and the Depositor Eligible Lender Trustee. The Group I Notes
will be entitled to receive payments of interest and principal primarily from
the cashflow on the Group I Student Loans. The Group II Notes will be entitled
to receive payments of interest and principal from the cashflow on the Group II
Student Loans.
The assets of the Trust will further include certain monies due under
the Initial Financed Student Loans on and after September 1, 2001, (the "Cutoff
Date"), an interest rate swap agreement for the Group I Notes (the "Group I
Interest Rate Swap") and for the Group II Notes (the "Group II Interest Rate
Swap," and together with the Group I Interest Rate Swap, the "Interest Rate
Swaps"), in the form of a 1992 ISDA Master Agreement, and schedules and related
confirmations thereto, each dated as of September 14, 2001, between the Trust
and KBUSA, as the swap counterparty (in such capacity, the "Swap Counterparty")
and a note guaranty insurance policy issued by MBIA Insurance Corporation (the
"Securities Insurer") to Chase Manhattan Bank, a New York banking corporation
(the "Indenture Trustee") for the benefit of the Group II Noteholders (the
"Group II Notes Guaranty Insurance Policy"). The Initial Financed Student Loans
will be sold to the Eligible Lender Trustee on behalf of the Trust by the
Depositor and the Depositor Eligible Lender Trustee pursuant to the Sale and
Servicing Agreement, dated as of September 1, 2001 (as amended and supplemented
from time to time, the "Sale and Servicing Agreement"), among, the Trust, the
Eligible Lender Trustee, KBUSA, as master servicer (in such capacity, the
"Master Servicer"), the Depositor and KBUSA, as administrator (in such capacity,
the "Administrator"). The Master Servicer has also entered into three certain
sub-servicing agreements to have the Financed Student Loans sub-serviced with
each of Pennsylvania Higher Education Assistance Agency, an agency of the
Commonwealth of Pennsylvania ("PHEAA" and, in its capacity as a sub-servicer, a
"Sub-Servicer") and Great Lakes Educational Loan Services, Inc., a Wisconsin
corporation ("Great Lakes" or a "Sub-Servicer"), two agreements with PHEAA
regarding the Group I and Group II Student Loans and one agreement with Great
Lakes regarding the Group II Student Loans. The Notes will be issued pursuant to
the Indenture to be dated as of September 1, 2001 (as amended and supplemented
from time to time, the "Indenture"), between the Indenture Trustee and the
Trust. To provide credit support to the Group II Notes only, the Group II Notes
Guaranty Insurance Policy will be issued pursuant to an Insurance Agreement (the
"Insurance Agreement") dated as of September 14, 2001 by and among the
Securities Insurer, the Depositor, KBUSA, (in its capacities as Seller, Master
Servicer and Administrator), the Trust, the Indenture Trustee and the Eligible
Lender Trustee. After the Closing Date (as defined below), the Eligible Lender
Trustee, acting on behalf of the Trust, will acquire certain additional student
loans, on or prior to the end of the Funding Period (the "Other Student Loans";
and together with the Initial Financed Student Loans, the "Financed Student
Loans") using amounts in certain accounts owned by the Trust which have been set
aside for such purpose. In addition, the Administrator will perform certain
administrative duties on behalf of the Trust pursuant to the Administration
Agreement, dated as of September 1, 2001 (as amended and supplemented from time
to time, the "Administration Agreement"), among the Indenture Trustee, the Trust
and the Administrator. KBUSA, as cap provider (in such capacity, the "Cap
Provider"), will enter into two interest rate caps with the Trust, one for the
benefit of the holders of the Group I Notes (the "Group I Interest Rate Cap"),
and the other for the benefit of the Group II Notes (the "Group II Interest Rate
Cap" and together with the Group I Interest Rate Cap, the "Cap Agreements") each
in the form of a 1992 ISDA Master Agreement, whereunder the related Noteholders
will be entitled, subject to the limitations of the Cap Agreements, to receive
payments from the Cap Provider in the amount of any of any Noteholders' Interest
Index Carryover for such Class of Notes and the Cap Provider will receive
reimbursement for such payments on subsequent Distribution Dates, but only to
the extent funds are available therefor on a subordinated basis. Pursuant to the
Interest Rate Swaps, on each Distribution Date the Trust will be entitled to
receive certain payments from the Swap Counterparty, and/or the Trust will be
required to make certain payments to the Swap Counterparty, in each case on a
net basis. Key Bank National Association, a national banking association, as put
option provider ("KBNA" and in such capacity, the "Put Option Provider") will
enter into two put option agreements with the Trust, one with respect to the
Group I Student Loans (the "Group I Put Option") for the benefit of the holders
of the Group I Notes, and the other with respect to the Group II Student Loans
(the "Group II Put Option" and together with the Group I Put Option, the "Put
Options") for the benefit of the holders of the Group II Notes. Pursuant to each
of the Put Options, if the related Put Option is exercised, the Put Option
Provider is obligated to purchase the related group of Financed Student Loans
for the related Put Exercise Price on the Distribution Date in September 2011.
The Sale and Servicing Agreement, the Indenture, the Trust Agreement, the
Student Loan Transfer Agreements, the Insurance Agreement, the Administration
Agreement, the Interest Rate Swaps, the Cap Agreements and the Put Options are
referred to herein as the "Basic Documents."
Simultaneously with the issuance and sale of the Notes as contemplated
herein, and pursuant to the Trust Agreement, the Trust will issue its Trust
Certificate (the "Certificate") representing a fractional undivided residual
ownership interest in the Trust to the Depositor.
Capitalized terms used and not otherwise defined herein shall have the
meanings given them in Appendix A attached hereto.
2. REPRESENTATIONS AND WARRANTIES OF THE DEPOSITOR AND KBUSA. (a) The
Depositor and KBUSA, jointly and severally, represents and warrants to and
agrees with the several Underwriters that:
(i) A registration statement on Form S-3 (Registration No.
333-62624-01) has been filed with the Securities and Exchange
Commission (the "Commission"), including a related preliminary base
prospectus and a preliminary prospectus supplement, for the
registration under the Act of the offering and sale of the Notes.
KBUSA and the Depositor may have filed one or more amendments thereto,
each of which amendments has previously been furnished to the
Representative. KBUSA and the Depositor will next file with the
Commission (i) after effectiveness of such registration statement, a
final base prospectus and a final prospectus supplement relating to
the Notes in accordance with Rules 430A and 424(b)(1) or (4) under the
Securities Act of 1933, as amended (the "Act"), or (ii) a final base
prospectus and a final prospectus supplement relating to the Notes in
accordance with Rules 415 and 424(b)(2) or (5).
The Depositor and KBUSA have included in such registration
statement, as amended at the Effective Date, all information (other
than Rule 430A Information) required by the Act and the rules
thereunder to be included in the Prospectus with respect to the Notes
and the offering thereof. As filed such final prospectus supplement
shall include all Rule 430A Information, together with all other such
required information, with respect to the Notes and the offering
thereof and, except to the extent that the Representative shall agree
in writing to a modification, shall be in all substantive respects in
the form furnished to the Representative prior to the Execution Time
or, to the extent not completed at the Execution Time, shall contain
only such specific additional information and other changes (beyond
that contained in the latest preliminary base prospectus and
preliminary prospectus supplement, if any, that have previously been
furnished to the Representative) as KBUSA has advised the
Representative, prior to the Execution Time, will be included or made
therein. If the Registration Statement contains the undertaking
specified by Regulation S-K Item 512(a), the Registration Statement,
at the Execution Time, meets the requirements set forth in Rule
415(a)(1)(x).
For purposes of this Note Underwriting Agreement (this
"Agreement"), "Effective Time" means the date and time as of which
such registration statement, or the most recent post-effective
amendment thereto, if any, was declared effective by the Commission,
and "Effective Date" means the date of the Effective Time. "Execution
Time" shall mean the date and time that this Agreement is executed and
delivered by the parties hereto. Such registration statement, as
amended at the Effective Time, including all information deemed to be
a part of such registration statement as of the Effective Time
pursuant to Rule 430A(b) under the Act, and including the exhibits
thereto and any material incorporated by reference therein, is
hereinafter referred to as the "Registration Statement." "Base
Prospectus" shall mean any prospectus referred to above contained in
the Registration Statement at the Effective Date, including any
Preliminary Prospectus Supplement. "Preliminary Prospectus Supplement"
shall mean the preliminary prospectus supplement to the Base
Prospectus which describes the Notes and the offering thereof and is
used prior to filing of the Prospectus. "Prospectus" shall mean the
prospectus supplement relating to the Notes that is first filed
pursuant to Rule 424(b) after the Execution Time, together with the
Base Prospectus or, if no filing pursuant to Rule 424(b) is required,
shall mean the prospectus supplement relating to the Notes, including
the Base Prospectus, included in the Registration Statement at the
Effective Date. "Rule 430A Information" means information with respect
to the Notes and the offering of the Notes 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 Registration Statement, a Preliminary Prospectus Supplement or
the Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein, if any, pursuant to Item 12 of Form
S-3 which were filed under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), on or before the Effective Date of the
Registration Statement or the issue date of the Base Prospectus, such
Preliminary Prospectus Supplement or the Prospectus, as the case may
be; and any reference herein to the terms "amend," "amendment" or
"supplement" with respect to the Registration Statement, the Base
Prospectus, any Preliminary Prospectus Supplement or the Prospectus
shall be deemed to refer to and include the filing of any document
under the Exchange Act after the Effective Date of the Registration
Statement, or the issue date of the Base Prospectus, to any
Preliminary Prospectus Supplement or the Prospectus, as the case may
be, deemed to be incorporated therein by reference.
(ii) As of the Closing Date (as defined below), KBUSA's
representations and warranties in the Basic Documents to which it is a
party and in the Guarantee Agreement to which ▇▇▇▇ is a party will be
true and correct in all material respects.
(iii) This Agreement has been duly authorized, executed and
delivered by KBUSA and the Depositor. The execution, delivery and
performance of this Agreement and the issuance and sale of the Notes
and compliance with the terms and provisions hereof will not result in
a breach or violation of any of the terms and provisions of, or
constitute a default under, any agreement or instrument to which KBUSA
or the Depositor are a party or by which KBUSA or Depositor are bound
or to which any of the properties of KBUSA or the Depositor are
subject which could reasonably be expected to have a material adverse
effect on the transactions contemplated herein. The Depositor has full
corporate power and authority to cause the Trust to authorize, issue
and sell the Notes, all as contemplated by this Agreement.
(iv) Other than as contemplated by this Agreement or as disclosed
in the Prospectus, there is no broker, finder or other party that is
entitled to receive from KBUSA, the Depositor or any of their
subsidiaries any brokerage or finder's fee or other fee or commission
as a result of any of the transactions contemplated by this Agreement.
(v) All legal or governmental proceedings, contracts or documents
of a character required to be described in the Registration Statement
or the Prospectus or to be filed as an exhibit to the Registration
Statement have been so described or filed as required.
(vi) The assignment and delivery of the Initial Financed Student
Loans to the Depositor and the Depositor Eligible Lender Trustee by
KBUSA, pursuant to the KBUSA Student Loan Transfer Agreement, will
vest in the Depositor and the Depositor Eligible Lender Trustee all of
KBUSA's right, title and interest therein, or will result in a first
priority perfected security interest therein, in either case subject
to no prior lien, mortgage, security interest, pledge, adverse claim,
charge or other encumbrances.
(vii) The assignment and delivery of the Initial Financed Student
Loans to the Depositor and the Depositor Eligible Lender Trustee by
Key Consumer QSPE LLC, pursuant to the QSPE Student Loan Transfer
Agreement, will vest in the Depositor all of Key Consumer QSPE LLC's
right, title and interest therein, or will result in a first priority
perfected security interest therein, in either case subject to no
prior lien, mortgage, security interest, pledge, adverse claim, charge
or other encumbrances.
(viii) The Depositor's assignment and delivery of (i) the Initial
Financed Student Loans to the Eligible Lender Trustee on behalf of the
Trust as of the Closing Date and (ii) the Other Student Loans on the
related Transfer Date, will vest in the Eligible Lender Trustee on
behalf of the Trust all the Depositor's right, title and interest
therein, or will result in a first priority perfected security
interest therein, in either case subject to no prior lien, mortgage,
security interest, pledge, adverse claim, charge or other encumbrance.
(ix) The Trust's assignment of (i) the Initial Financed Student
Loans to the Indenture Trustee as of the Closing Date and (ii) the
Other Student Loans on the related Transfer Date, pursuant to the
Indenture, will vest in the Indenture Trustee, for the benefit of the
holders of the Notes, a first priority perfected security interest
therein, subject to no prior lien, mortgage, security interest,
pledge, adverse claim, charge or other encumbrance.
(x) The Depositor is not, and after giving effect to the offering
and sale of the Notes, will not be an "investment company" or an
entity "controlled" by an "investment company," as such terms are
defined in the United States Investment Company Act of 1940, as
amended (the "Investment Company Act"), and the exemption provided
under Section 3(c)(5) of the Investment Company Act is applicable to
the Depositor with respect to the offering and sale of the Notes;
(b) Each of KBUSA and the Depositor hereby agrees with the
Underwriters that, for all purposes of this Agreement, the only information
furnished to the Depositor by the Underwriters through the Representative
specifically for use in the Registration Statement, the Prospectus, or any
amendment or supplement thereto, or any related preliminary prospectus, are the
statements relating to stabilization on the inside cover page of, and the
statements under the caption "Underwriting" in, the preliminary prospectus and
the Prospectus (the "Underwriter Information").
3. PURCHASE, SALE AND DELIVERY OF THE NOTES. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Depositor agrees to cause the Trust
to sell to the Underwriters, and the Underwriters agree, severally and not
jointly, to purchase from the Trust, at a purchase price of 99.800% of the
principal amount of the Class I-A-1 Notes, at a purchase price of 99.675% of the
principal amount of the Class I-A-2 Notes, at a purchase price of 99.600% of the
principal amount of the Class I-B Notes, at a purchase price of 99.800% of the
principal amount of the Class II-A-1 Notes and at a purchase price of 99.675% of
the principal amount of the Class II-A-2 Notes the respective principal amounts
of each class of Notes set forth opposite the names of the Underwriters in
Schedule I hereto. In addition, the Depositor agrees to cause the Underwriters
to be paid an aggregate structuring fee in connection with the structuring of
the Notes of $800,000.
The Depositor will deliver the Notes to the Representative for the
respective accounts of the Underwriters, against payment of the purchase price
to or upon the order of the Depositor or its designee by wire transfer or check
in Federal (same day) Funds, at the office of Stroock & Stroock & ▇▇▇▇▇ LLP, ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, on September 14, 2001, or at such other
time not later than seven full business days thereafter as the Representative
and the Depositor determine, such time being herein referred to as the "Closing
Date." The Notes to be so delivered will be initially represented by one or more
Notes of each class registered in the name of Cede & Co., the nominee of The
Depository Trust Company ("DTC"). The interests of beneficial owners of the
Notes will be represented by book entries on the records of DTC and
participating members thereof. Definitive Notes will be available only under the
limited circumstances specified in the Indenture.
4. OFFERING BY THE UNDERWRITERS. It is understood that, provided that
the Registration Statement remains effective, the several Underwriters propose
to offer the Notes for sale to the public (which may include selected dealers)
as set forth in the Prospectus.
5. COVENANTS OF THE DEPOSITOR AND KBUSA. Each of KBUSA and the
Depositor agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Notes, neither the
Depositor nor KBUSA will file any amendment of the Registration Statement or
supplement to the Prospectus unless the Depositor or KBUSA has furnished the
Representative a copy for its review prior to filing and will not file any such
proposed amendment or supplement to which the Representative reasonably objects.
Subject to the foregoing sentence, if the Registration Statement has become or
becomes effective pursuant to Rule 430A, or filing of the Prospectus is
otherwise required under Rule 424(b), KBUSA or the Depositor will file the
Prospectus, properly completed, and any supplement thereto, with the Commission
pursuant to and in accordance with the applicable paragraph of Rule 424(b)
within the time period prescribed and will provide evidence satisfactory to the
Representative of such timely filing.
(b) Either KBUSA or the Depositor will advise the Representative
promptly of any proposal to amend or supplement the registration statement as
filed or the related prospectus or the Registration Statement or the Prospectus
and will not effect such amendment or supplementation without the consent of the
Representative prior to the Closing Date, and thereafter will not effect any
such amendment or supplementation to which the Representative reasonably
objects; either KBUSA or the Depositor will also advise the Representative
promptly of any request by the Commission for any amendment of or supplement to
the Registration Statement or the Prospectus or for any additional information;
and either KBUSA or the Depositor will also advise the Representative promptly
of the effectiveness of the Registration Statement (if the Effective Time is
subsequent to the execution of this Agreement) and of any amendment or
supplement to the Registration Statement or the Prospectus and of the issuance
by the Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threat of any proceeding for that
purpose and each of KBUSA and the Depositor will use its best efforts to prevent
the issuance of any such stop order and to obtain as soon as possible the
lifting of any issued stop order.
(c) If, at any time when a prospectus relating to the Notes is
required to be delivered under the Act, any event occurs as a result of which
the Prospectus as then amended or supplemented would contain an untrue statement
of a material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, or if it is necessary at any time to amend or supplement
the Prospectus to comply with the Act or the Exchange Act, KBUSA or the
Depositor promptly will prepare and file, or cause to be prepared and filed,
with the Commission an amendment or supplement which will correct such statement
or omission, or an amendment or supplement which will effect such compliance.
Neither the consent of the Representative to, nor the delivery of the several
Underwriters of, any such amendment or supplement shall constitute a waiver of
any of the conditions set forth in Section 6 hereof.
(d) As soon as practicable, but not later than the Availability Date
(as defined below), either KBUSA or the Depositor will cause the Trust to make
generally available to the holders of the Notes an earnings statement of the
Trust covering a period of at least twelve months beginning after the Effective
Date which will satisfy the provisions of Section 11(a) of the Act and Rule 158
of the applicable Rules and Regulations thereunder. For the purpose of the
preceding sentence, "Availability Date" means the 45th day after the end of the
fourth fiscal quarter following the fiscal quarter that includes the Effective
Date, except that, if such fourth fiscal quarter is the last quarter of the
Trust's fiscal year, "Availability Date" means the 90th day after the end of
such fourth fiscal quarter.
(e) KBUSA will furnish to the Representative copies of the
Registration Statement (two of which will be signed and will include all
exhibits), each related preliminary prospectus, the Prospectus and all
amendments and supplements to such documents, in each case as soon as available
and in such quantities as the Representative reasonably requests.
(f) KBUSA will arrange for the qualification of the Notes for sale
under the laws of the State of California and will continue such qualification
in effect so long as required for the distribution.
(g) For a period from the date of this Agreement until the retirement
of the Notes, or until such time as the several Underwriters shall cease to
maintain a secondary market in the Notes, whichever occurs first, KBUSA will
deliver to the Representative the annual statements of compliance and the annual
independent certified public accountants' reports furnished to the Indenture
Trustee or the Eligible Lender Trustee pursuant to the Sale and Servicing
Agreement, as soon as such statements and reports are furnished to the Indenture
Trustee or the Eligible Lender Trustee.
(h) So long as any of the Notes are outstanding, either KBUSA or the
Depositor will furnish to the Representative (i) as soon as practicable after
the end of the fiscal year all documents required to be distributed to the
holders of the Notes or filed with the Commission on behalf of the Trust
pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), or any order of the Commission thereunder and (ii) from time to time, any
other information concerning KBUSA or the Depositor as the Representative may
reasonably request only insofar as such information reasonably relates to the
Registration Statement or the transactions contemplated by the Basic Documents.
(i) On or before the Closing Date, the Depositor shall mark its
accounting and other records, if any, relating to the Initial Financed Student
Loans and shall instruct the Master Servicer (which shall cause each
Sub-Servicer) to mark the computer records of the Master Servicer (or such
Sub-Servicer) relating to the Financed Student Loans to show the absolute
ownership by the Eligible Lender Trustee on behalf of the Trust of the Financed
Student Loans, and from and after the Closing Date the Depositor shall not and
shall require that the Master Servicer (which shall ensure that any
Sub-Servicer) shall not take any action inconsistent with the ownership by the
Eligible Lender Trustee on behalf of the Trust of such Initial Financed Student
Loans, other than as permitted by the Sale and Servicing Agreement.
(j) To the extent, if any, that the rating provided with respect to
the Notes by the rating agency or agencies that initially rate the Notes is
conditional at the time of issuance of the Notes upon the furnishing of
documents or the taking of any other actions by KBUSA or the Depositor agreed
upon on or prior to the Closing Date, KBUSA and the Depositor, as applicable,
shall furnish such documents and take any such other actions. A copy of any such
document shall be provided to the Representative at the time it is delivered to
the rating agencies.
(k) For the period beginning on the date of this Agreement and ending
90 days after the Closing Date, none of KBUSA, the Depositor or any trust
originated, directly or indirectly, by KBUSA or the Depositor will, without the
prior written consent of the Representative, offer to sell or sell notes (other
than the Notes) collateralized by, or certificates evidencing an ownership
interest in, student loans; PROVIDED, HOWEVER, that this shall not be construed
to prevent the sale of student loans by the Depositor.
(l) The Depositor will apply the net proceeds of the offering and the
sale of the Notes that it receives in the manner set forth in the Prospectus
under the caption "Use of Proceeds."
(m) KBUSA will pay or cause to be paid all expenses incident to the
performance of its and the Depositor's obligations under this Agreement,
including (i) the printing and filing of the documents (including the
Registration Statement and Prospectus) (ii) the preparation, issuance and
delivery of the Notes to the Representative, (iii) the fees and disbursements of
KBUSA's and the Depositor's counsels and accountants, (iv) the qualification of
the Notes under securities laws in accordance with the provisions of Section
5(f), including filing fees and the fees and disbursements of counsel for the
Representative in connection therewith and in connection with the preparation of
any blue sky or legal investment survey, if any is requested, (v) the printing
and delivery to the Representative of copies of the Registration Statement as
originally filed and of each amendment thereto, (vi) the printing and delivery
to the Representative of copies of any blue sky or legal investment survey
prepared in connection with the Notes, (vii) any fees charged by rating agencies
for the rating of the Notes, (viii) the fees and expenses, if any, incurred with
respect to any filing with the National Association of Securities Dealers, Inc.,
(ix) the fees charged by the Securities Insurer (including attorneys fees and
disbursements), (x) the fees charged by the Swap Counterparty and Cap Provider
(including attorneys fees and disbursements), (x) the fees charged by the Put
Option Provider (including attorneys fees and disbursements), and (xi) the fees
and expenses of ▇▇▇▇▇▇▇▇ ▇▇▇▇ LLP in its role as counsel to the Trust incurred
as a result of providing the opinions required by Section 6(m) hereof.
6. CONDITIONS OF THE OBLIGATIONS OF THE UNDERWRITERS. The obligations
of the several Underwriters to purchase and pay for the Notes will be subject to
the accuracy of the representations and warranties on the part of KBUSA and the
Depositor herein, to the accuracy of the written statements of officers of KBUSA
and the Depositor made pursuant to the provisions of this Section, to the
performance by KBUSA and the Depositor of their obligations hereunder and to the
following additional conditions precedent:
(a) If the Effective Time is not prior to the execution and delivery
of this Agreement, the Effective Time shall have occurred not later than 6:00
p.m., New York City time, on the date of this Agreement or such later time or
date as shall have been consented to by the Representative.
(b) If the Effective Time is prior to the execution and delivery of
this Agreement, the Prospectus and any supplements thereto shall have been filed
with the Commission in accordance with the Rules and Regulations and Section
5(a) hereof. Prior to the Closing Date, no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted or, to the knowledge of
the Seller or the Representative, shall be contemplated by the Commission.
(c) The Representative shall have received a letter, dated on or prior
to the Closing Date of Ernst & Young LLP on behalf of KBUSA confirming that such
accountants are independent public accountants within the meaning of the Act and
the applicable published Rules and Regulations thereunder, and substantially in
the form of the drafts to which the Representative has previously agreed and
otherwise in form and substance reasonably satisfactory to the Representative
and its counsel.
(d) Subsequent to the execution and delivery of this Agreement, there
shall not have occurred (i) any change, or any development involving a
prospective change, in or affecting particularly the business or properties of
the Trust, KBUSA, the Put Option Provider, KeyCorp or the Securities Insurer
which, in the judgment of the Representative, materially impairs the investment
quality of the Notes or makes it impractical or inadvisable to market the Notes;
(ii) any downgrading in the rating of any debt securities of KBUSA, the Put
Option Provider, KeyCorp or the Securities Insurer by any "nationally recognized
statistical rating organization" (as defined for purposes of Rule 436(g) under
the Act), or any public announcement that any such organization has under
surveillance or review its rating of any debt securities of KBUSA, the Put
Option Provider, KeyCorp or the Securities Insurer (other than an announcement
with positive implications of a possible upgrading, and no implication of a
possible downgrading, of such rating); (iii) any suspension or limitation of
trading in securities generally on the New York Stock Exchange, or any setting
of minimum prices for trading on such exchange; (iv) any suspension of trading
of any securities of KBUSA the Put Option Provider or KeyCorp on any exchange or
in the over-the-counter market; (v) any banking moratorium declared by Federal
or New York authorities; or (vi) any outbreak or escalation of hostilities
involving the United States or the declaration by the United States of a
national emergency or war, if the effect of any such event specified in this
clause (vi) in the judgment of the Representative makes it impracticable or
inadvisable to proceed with the public offering or the delivery of the Notes on
the terms and in the manner contemplated in the Prospectus.
(e) The Representative shall have received an opinion of ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, Esq., General Counsel of KBUSA, as counsel for (i) KBUSA, as a Seller,
the Master Servicer, the Swap Counterparty, the Cap Provider and the
Administrator, (ii) the Depositor and (iii) QSPE as a 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 one or more opinions of
▇▇▇▇▇▇▇▇ ▇▇▇▇ LLP, counsel to the Depositor and the Sellers, dated the Closing
Date, in the form attached hereto as Exhibits B-1 to B-3, or as is otherwise
satisfactory in form and substance to the Representative and its counsel,
regarding certain true sale, bankruptcy, insolvency and perfection of security
interest matters regarding KBUSA, QSPE, the Depositor and the Trust.
(g) The Representative shall have received an opinion of ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇ as counsel to Key Bank National Association, as the Put Option Provider,
dated the Closing Date, in the form attached hereto as Exhibit D, or as is
otherwise satisfactory in form and substance to the Representative and its
counsel.
(h) The Representative shall have received an opinion of ▇▇▇▇▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇ LLP, counsel to KBUSA and the Depositor, dated the Closing Date and
satisfactory in form and substance to the Representative and its counsel, to the
effect that the statements in the Prospectus under the headings "Summary of
Terms--Income Tax Consequences" and "Pennsylvania Income Tax
Consequences--Pennsylvania Income and Franchise Tax Consequences with Respect to
the Notes" accurately describe the material Pennsylvania tax consequences to
holders of the Notes.
(i) The Representative shall have received an opinion addressed to the
several Underwriters of ▇▇▇▇▇▇▇▇ ▇▇▇▇ LLP, in its capacity as Federal tax and
ERISA counsel for the Trust, to the effect that the statements in the Prospectus
under the headings "Summary of Terms--Tax Consequences" and "Federal Tax
Consequences for Trusts in which all Certificates are Retained by the Depositor"
accurately describe the material Federal income tax consequences to holders of
the Notes, and the statements in the Prospectus under the headings "Summary of
Terms--ERISA Considerations" and "ERISA Considerations" to the extent that they
constitute statements of matters of law or legal conclusions with respect
thereto, have been prepared or reviewed by such counsel and accurately describe
the material consequences to holders of the Notes under ERISA. Thompson ▇▇▇▇
LLP, in its capacity as special counsel to the Trust, shall have delivered an
opinion with respect to the characterization of the transfer of the Initial
Financed Student Loans.
(j) The Representative shall have received an opinion addressed to the
several Underwriters of Stroock & Stroock & ▇▇▇▇▇ LLP, in its capacity as
special counsel to the several Underwriters, dated the Closing Date, with
respect to the validity of the Notes and such other related matters as the
Representative shall reasonably require and each of KBUSA and the Depositor
shall have furnished or caused to be furnished to such counsel such documents as
they may reasonably request for the purpose of enabling them to pass upon such
matters.
(k) The Representative shall have received an opinion of ▇▇▇▇ ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇▇, special student loan counsel to the Representative and, in the case
of clause (iii) below, special student loan counsel to the Eligible Lender
Trustee, dated the Closing Date, satisfactory in form and substance to the
Representative, to the effect that:
(i) the agreements implementing the Program, (including the
Coordination Agreements) and the Relevant Documents (as defined in
such opinion), and the transactions contemplated by the Relevant
Documents, conform in all material respects to the applicable
requirements of the Higher Education Act, and that, upon the due
authorization, execution and delivery of the Relevant Documents and
the consummation of such transactions, the Financed Federal Loans,
legal title to which will be held by the Eligible Lender Trustee on
behalf of the Trust, will qualify, subject to compliance with all
applicable origination and servicing requirements, for all applicable
federal assistance payments, including federal reinsurance and federal
interest subsidies and special allowance payments;
(ii) such counsel has examined the Prospectus, and nothing has
come to such counsel's attention that would lead such counsel to
believe that, solely with respect to the Higher Education Act and the
student loan business, the Prospectus or any amendment or supplement
thereto as of the respective dates thereof or on the Closing Date
contains an untrue statement of a material fact or omits to state a
material fact necessary in order to make the statements therein not
misleading; and
(iii) the Eligible Lender Trustee is an "eligible lender" as such
term is defined in Section 435(d) of the Higher Education Act for
purposes of holding legal title to the Financed Federal Loans.
(l) The Representative shall have received an opinion of counsel to
PHEAA, dated the Closing Date and satisfactory in form and substance to the
Representative and its counsel, to the effect that:
(i) PHEAA has been duly organized and is validly existing as an
agency of the Commonwealth of Pennsylvania in good standing under the
laws thereof with full power and authority (corporate and other) to
own its properties and conduct its business, as presently conducted by
it, and to enter into and perform its obligations under the PHEAA
Sub-Servicing Agreements and the Guarantee Agreement (and the
agreements with the Department under Section 428 of the Higher
Education Act to the extent relevant to PHEAA's obligations under such
Guarantee Agreement) to which it is a party, and had at all relevant
times, and now has, the power, authority and legal right to service
the Financed Student Loans it is servicing, to guarantee the Financed
Federal Loans covered by such Guarantee Agreement and to receive,
subject to compliance with all applicable conditions, restrictions and
limitations of the Higher Education Act, reinsurance payments from the
Department with respect to claims paid by it on such Financed Federal
Loans.
(ii) PHEAA is duly qualified to do business and is in good
standing, and has obtained all necessary licenses and approvals in
each jurisdiction in which failure to qualify or to obtain such
license or approval would render any Financed Student Loan or PHEAA's
obligation under its Guarantee Agreement unenforceable by or on behalf
of the Trust.
(iii) Each of the PHEAA Sub-Servicing Agreements and the
Guarantee Agreement to which it is a party (and the agreements with
the Department under Section 428 of the Higher Education Act to the
extent relevant to PHEAA's obligations under such Guarantee Agreement)
to which PHEAA is a party has been duly authorized, executed and
delivered by PHEAA and is the legal, valid and binding obligation of
PHEAA enforceable against PHEAA in accordance with its terms,
notwithstanding the existence of any doctrine of sovereign immunity
except (x) the enforceability thereof may be subject to bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights and (y) the remedy
of specific performance and injunctive and other forms of equitable
relief may be subject to equitable defenses and to the discretion of
the court before which any proceeding therefor may be brought.
(iv) Neither the execution and delivery by PHEAA of the PHEAA
Sub-Servicing Agreements or the Guarantee Agreement to which it is a
party, nor the consummation by PHEAA of the transactions contemplated
therein nor the fulfillment of the terms thereof by PHEAA will
conflict with, result in a breach, violation or acceleration of, or
constitute a default under, any term or provision of the certificate
of incorporation or by-laws of PHEAA or of any indenture or other
agreement or instrument to which PHEAA is a party or by which PHEAA is
bound, or result in a violation of or contravene the terms of any
statute, order or regulation applicable to PHEAA of any court,
regulatory body, administrative agency or governmental body having
jurisdiction over PHEAA.
(v) There are no actions, proceedings or investigations pending
or, to the best of such counsel's knowledge after due inquiry,
threatened against PHEAA before or by any governmental authority that
might materially and adversely affect the performance by PHEAA of its
obligations under, or the validity or enforceability of, the PHEAA
Sub-Servicing Agreements or the Guarantee Agreement (or the agreements
with the Department under Section 428 of the Higher Education Act to
the extent relevant to PHEAA's obligations under such Guarantee
Agreement) to which it is a party.
(vi) Nothing has come to such counsel's attention that would lead
such counsel to believe that the representations and warranties of
PHEAA contained in the PHEAA Sub-Servicing Agreement are other than as
stated therein.
(m) The Representative shall have received an opinion of counsel to
Great Lakes in its capacity as a Sub-Servicer, dated the Closing Date and
satisfactory in form and substance to the Representative and its counsel, to the
effect that:
(i) Great Lakes has been duly organized and is validly existing
as a Wisconsin corporation in good standing under the laws thereof
with full power and authority (corporate and other) to own its
properties and conduct its business, as presently conducted by it, and
to enter into and perform its obligations under the Great Lakes
Sub-Servicing Agreement, and had at all relevant times, and now has,
the power, authority and legal right to service the Financed Student
Loans it is servicing.
(ii) The Great Lakes Sub-Servicing Agreement has been duly
authorized, executed and delivered by Great Lakes and is the legal,
valid and binding obligation of Great Lakes enforceable against Great
Lakes in accordance with its terms, except (x) the enforceability
thereof may be subject to bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect relating
to creditors' rights and (y) the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to
equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought.
(iii) Neither the execution and delivery by Great Lakes of the
Great Lakes Sub-Servicing Agreement, nor the consummation by Great
Lakes of the transactions contemplated therein nor the fulfillment of
the terms thereof by Great Lakes will conflict with, result in a
breach, violation or acceleration of, or constitute a default under,
any term or provision of the certificate of incorporation or by-laws
of Great Lakes or of any indenture or other agreement or instrument to
which Great Lakes is a party or by which Great Lakes is bound, or
result in a violation of or contravene the terms of any statute, order
or regulation applicable to Great Lakes of any court, regulatory body,
administrative agency or governmental body having jurisdiction over
Great Lakes.
(iv) There are no actions, proceedings or investigations pending
or, to the best of such counsel's knowledge after due inquiry,
threatened against Great Lakes before or by any governmental authority
that might materially and adversely affect the performance by Great
Lakes of its obligations under, or the validity or enforceability of,
the Great Lakes Sub-Servicing Agreement.
(v) Nothing has come to such counsel's attention that would lead
such counsel to believe that the representations and warranties of
Great Lakes contained in the Great Lakes Sub-Servicing Agreement are
other than as stated therein.
(n) The Representative shall have received an opinion of counsel to
the Massachusetts Higher Education Assistance Corporation, now doing business as
American Student Assistance, a Massachusetts non-profit corporation ("ASA"),
dated the Closing Date and satisfactory in form and substance to the
Representative and its counsel, to the effect that:
(i) ASA has been duly incorporated and is validly existing as a
non-profit corporation in good standing under the laws of the
Commonwealth of Massachusetts with full power and authority (corporate
and other) to own its properties and conduct its business, as
presently conducted by it, and to enter into and perform its
obligations under the Guarantee Agreement (and the agreements with the
Department under Section 428 of the Higher Education Act to the extent
relevant to ASA's obligations under such Guarantee Agreement) to which
it is a party, and had at all relevant times, and now has, the power,
authority and legal right to guarantee the Financed Federal Loans
covered by such Guarantee Agreement and to receive, subject to
compliance with all applicable conditions, restrictions and
limitations of the Higher Education Act, reinsurance payments from the
Department with respect to claims paid by it on such Financed Federal
Loans.
(ii) ASA is duly qualified to do business and is in good
standing, and has obtained all necessary licenses and approvals in
each jurisdiction in which failure to qualify or to obtain such
license or approval would render ASA's obligation under its Guarantee
Agreement to guarantee the Financed Federal Loans covered thereby
unenforceable by or on behalf of the Trust.
(iii) The Guarantee Agreement (and the agreements with the
Department under Section 428 of the Higher Education Act to the extent
relevant to ASA's obligations under such Guarantee Agreement) to which
ASA is a party has been duly authorized, executed and delivered by ASA
and is the legal, valid and binding obligation of ASA enforceable
against ASA in accordance with its terms, except (x) the
enforceability thereof may be subject to bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in
effect relating to creditors' rights and (y) the remedy of specific
performance and injunctive and other forms of equitable relief may be
subject to equitable defenses and to the discretion of the court
before which any proceeding therefor may be brought.
(iv) Neither the execution and delivery by ASA of the Guarantee
Agreement to which it is a party, nor the consummation by ASA of the
transactions contemplated therein nor the fulfillment of the terms
thereof by ASA will conflict with, result in a breach, violation or
acceleration of, or constitute a default under, any term or provision
of the certificate of incorporation or by-laws of ASA or of any
indenture or other agreement or instrument to which ASA is a party or
by which ASA is bound, or result in a violation of or contravene the
terms of any statute, order or regulation applicable to ASA of any
court, regulatory body, administrative agency or governmental body
having jurisdiction over ASA.
(v) There are no actions, proceedings or investigations pending
or, to the best of such counsel's knowledge after due inquiry,
threatened against ASA before or by any governmental authority that
might materially and adversely affect the performance by ASA of its
obligations under, or the validity or enforceability of, the Guarantee
Agreement (or the agreements with the Department under Section 428 of
the Higher Education Act to the extent relevant to ASA's obligations
under such Guarantee Agreement) to which it is a party.
(o) The Representative shall have received an opinion of ▇▇▇▇▇▇▇,
▇'▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., counsel to the Nebraska Student Loan Program
("NSLP"), dated the Closing Date and satisfactory in form and substance to the
Representative and its counsel, to the effect that:
(i) NSLP has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Nebraska
with full power and authority (corporate and other) to own its
properties and conduct its business, as presently conducted by it, and
to enter into and perform its obligations under the Guarantee
Agreement (and the agreements with the Department under Section 428 of
the Higher Education Act to the extent relevant to NSLP's obligations
under such Guarantee Agreement) to which it is a party, and had at all
relevant times, and now has, the power, authority and legal right to
guarantee the Financed Federal Loans covered by such Guarantee
Agreement and to receive, subject to compliance with all applicable
conditions, restrictions and limitations of the Higher Education Act,
reinsurance payments from the Department with respect to claims paid
by it on such Financed Federal Loans.
(ii) NSLP is duly qualified to do business and is in good
standing, and has obtained all necessary licenses and approvals in
each jurisdiction in which failure to qualify or to obtain such
license or approval would render NSLP's obligation under its Guarantee
Agreement to guarantee the Financed Federal Loans covered thereby
unenforceable by or on behalf of the Trust.
(iii) The Guarantee Agreement (and the agreements with the
Department under Section 428 of the Higher Education Act to the extent
relevant to NSLP's obligations under such Guarantee Agreement) to
which NSLP is a party has been duly authorized, executed and delivered
by NSLP and is the legal, valid and binding obligation of NSLP
enforceable against NSLP in accordance with its terms, except (x) the
enforceability thereof may be subject to bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in
effect relating to creditors' rights and (y) the remedy of specific
performance and injunctive and other forms of equitable relief may be
subject to equitable defenses and to the discretion of the court
before which any proceeding therefor may be brought.
(iv) Neither the execution and delivery by NSLP of the Guarantee
Agreement to which it is a party, nor the consummation by NSLP of the
transactions contemplated therein nor the fulfillment of the terms
thereof by NSLP will conflict with, result in a breach, violation or
acceleration of, or constitute a default under, any term or provision
of the certificate of incorporation or by-laws of NSLP or of any
indenture or other agreement or instrument to which NSLP is a party or
by which NSLP is bound, or result in a violation of or contravene the
terms of any statute, order or regulation applicable to NSLP of any
court, regulatory body, administrative agency or governmental body
having jurisdiction over NSLP.
(v) There are no actions, proceedings or investigations pending
or, to the best of such counsel's knowledge after due inquiry,
threatened against NSLP before or by any governmental authority that
might materially and adversely affect the performance by NSLP of its
obligations under, or the validity or enforceability of, the Guarantee
Agreement (or the agreements with the Department under Section 428 of
the Higher Education Act to the extent relevant to NSLP's obligations
under such Guarantee Agreement) to which it is a party.
(p) The Representative shall have received an opinion of counsel to
the California Student Aid Commission ("CSAC"), dated the Closing Date and
satisfactory in form and substance to the Representative and its counsel, to the
effect that:
(i) CSAC has been duly incorporated and is validly existing as a
non-profit corporation in good standing under the laws of the State of
California 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 CSAC's obligations
under such Guarantee Agreement) to which it is a party, and had at all
relevant times, and now has, the power, authority and legal right to
guarantee the Financed Federal Loans covered by such Guarantee
Agreement and to receive, subject to compliance with all applicable
conditions, restrictions and limitations of the Higher Education Act,
reinsurance payments from the Department with respect to claims paid
by it on such Financed Federal Loans.
(ii) CSAC 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 CSAC's obligation under its Guarantee
Agreement to guarantee the Financed Federal Loans covered thereby
unenforceable by or on behalf of the Trust.
(iii) The Guarantee Agreement (and the agreements with the
Department under Section 428 of the Higher Education Act to the extent
relevant to CSAC's obligations under such Guarantee Agreement) to
which CSAC is a party has been duly authorized, executed and delivered
by CSAC and is the legal, valid and binding obligation of CSAC
enforceable against CSAC in accordance with its terms, except (x) the
enforceability thereof may be subject to bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in
effect relating to creditors' rights and (y) the remedy of specific
performance and injunctive and other forms of equitable relief may be
subject to equitable defenses and to the discretion of the court
before which any proceeding therefor may be brought.
(iv) Neither the execution and delivery by CSAC of the Guarantee
Agreement to which it is a party, nor the consummation by CSAC of the
transactions contemplated therein nor the fulfillment of the terms
thereof by CSAC will conflict with, result in a breach, violation or
acceleration of, or constitute a default under, any term or provision
of the certificate of incorporation or by-laws of CSAC or of any
indenture or other agreement or instrument to which CSAC is a party or
by which CSAC is bound, or result in a violation of or contravene the
terms of any statute, order or regulation applicable to CSAC of any
court, regulatory body, administrative agency or governmental body
having jurisdiction over CSAC.
(v) There are no actions, proceedings or investigations pending
or, to the best of such counsel's knowledge after due inquiry,
threatened against CSAC before or by any governmental authority that
might materially and adversely affect the performance by CSAC of its
obligations under, or the validity or enforceability of, the Guarantee
Agreement (or the agreements with the Department under Section 428 of
the Higher Education Act to the extent relevant to CSAC's obligations
under such Guarantee Agreement) to which it is a party.
(q) The Representative shall have received an opinion of counsel to
the Connecticut Student Loan Foundation ("CSLF"), dated the Closing Date and
satisfactory in form and substance to the Representative and its counsel, to the
effect that:
(i) CSLF has been duly incorporated and is validly existing as a
non-profit corporation in good standing under the laws of the State of
Connecticut 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 CSLF's obligations
under such Guarantee Agreement) to which it is a party, and had at all
relevant times, and now has, the power, authority and legal right to
guarantee the Financed Federal Loans covered by such Guarantee
Agreement and to receive, subject to compliance with all applicable
conditions, restrictions and limitations of the Higher Education Act,
reinsurance payments from the Department with respect to claims paid
by it on such Financed Federal Loans.
(ii) CSLF 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 CSLF's obligation under its Guarantee
Agreement to guarantee the Financed Federal Loans covered thereby
unenforceable by or on behalf of the Trust.
(iii) The Guarantee Agreement (and the agreements with the
Department under Section 428 of the Higher Education Act to the extent
relevant to CSLF's obligations under such Guarantee Agreement) to
which CSLF is a party has been duly authorized, executed and delivered
by CSLF and is the legal, valid and binding obligation of CSLF
enforceable against CSLF in accordance with its terms, except (x) the
enforceability thereof may be subject to bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in
effect relating to creditors' rights and (y) the remedy of specific
performance and injunctive and other forms of equitable relief may be
subject to equitable defenses and to the discretion of the court
before which any proceeding therefor may be brought.
(iv) Neither the execution and delivery by CSLF of the Guarantee
Agreement to which it is a party, nor the consummation by CSLF of the
transactions contemplated therein nor the fulfillment of the terms
thereof by CSLF will conflict with, result in a breach, violation or
acceleration of, or constitute a default under, any term or provision
of the certificate of incorporation or by-laws of CSLF or of any
indenture or other agreement or instrument to which CSLF is a party or
by which CSLF is bound, or result in a violation of or contravene the
terms of any statute, order or regulation applicable to CSLF of any
court, regulatory body, administrative agency or governmental body
having jurisdiction over CSLF.
(v) There are no actions, proceedings or investigations pending
or, to the best of such counsel's knowledge after due inquiry,
threatened against CSLF before or by any governmental authority that
might materially and adversely affect the performance by CSLF of its
obligations under, or the validity or enforceability of, the Guarantee
Agreement (or the agreements with the Department under Section 428 of
the Higher Education Act to the extent relevant to CSLF's obligations
under such Guarantee Agreement) to which it is a party.
(r) The Representative shall have received an officer's certificate
from the New York State Higher Education Services Corporation ("NYHESC"), dated
the Closing Date and satisfactory in form and substance to the Representative
and its counsel, to the effect that:
(i) NYHESC has been duly incorporated and is validly existing as
a non-profit corporation in good standing under the laws of the State
of New York 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 NYHESC's
obligations under such Guarantee Agreement) to which it is a party,
and had at all relevant times, and now has, the power, authority and
legal right to guarantee the Financed Federal Loans covered by such
Guarantee Agreement and to receive, subject to compliance with all
applicable conditions, restrictions and limitations of the Higher
Education Act, reinsurance payments from the Department with respect
to claims paid by it on such Financed Federal Loans.
(ii) NYHESC 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 NYHESC's obligation under its
Guarantee Agreement to guarantee the Financed Federal Loans covered
thereby unenforceable by or on behalf of the Trust.
(iii) The Guarantee Agreement (and the agreements with the
Department under Section 428 of the Higher Education Act to the extent
relevant to NYHESC's obligations under such Guarantee Agreement) to
which NYHESC is a party has been duly authorized, executed and
delivered by NYHESC and is the legal, valid and binding obligation of
NYHESC enforceable against NYHESC in accordance with its terms, except
(x) the enforceability thereof may be subject to bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights and (y) the remedy
of specific performance and injunctive and other forms of equitable
relief may be subject to equitable defenses and to the discretion of
the court before which any proceeding therefor may be brought.
(iv) Neither the execution and delivery by NYHESC of the
Guarantee Agreement to which it is a party, nor the consummation by
NYHESC of the transactions contemplated therein nor the fulfillment of
the terms thereof by NYHESC will conflict with, result in a breach,
violation or acceleration of, or constitute a default under, any term
or provision of the certificate of incorporation or by-laws of NYHESC
or of any indenture or other agreement or instrument to which NYHESC
is a party or by which NYHESC is bound, or result in a violation of or
contravene the terms of any statute, order or regulation applicable to
NYHESC of any court, regulatory body, administrative agency or
governmental body having jurisdiction over NYHESC.
(v) There are no actions, proceedings or investigations pending
or, to the best of such officer's knowledge after due inquiry,
threatened against NYHESC before or by any governmental authority that
might materially and adversely affect the performance by NYHESC of its
obligations under, or the validity or enforceability of, the Guarantee
Agreement (or the agreements with the Department under Section 428 of
the Higher Education Act to the extent relevant to NYHESC's
obligations under such Guarantee Agreement) to which it is a party.
(s) The Representative shall have received an officer's certificate
from the Educational Credit Management Corporation ("ECMC"), dated the Closing
Date and satisfactory in form and substance to the Representative and its
counsel, to the effect that:
(i) ECMC has been duly incorporated and is validly existing as a
non-profit corporation in good standing under the laws of the State of
Minnesota 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 ECMC's obligations
under such Guarantee Agreement) to which it is a party, and had at all
relevant times, and now has, the power, authority and legal right to
guarantee the Financed Federal Loans covered by such Guarantee
Agreement and to receive, subject to compliance with all applicable
conditions, restrictions and limitations of the Higher Education Act,
reinsurance payments from the Department with respect to claims paid
by it on such Financed Federal Loans.
(ii) ECMC 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 ECMC's obligation under its Guarantee
Agreement to guarantee the Financed Federal Loans covered thereby
unenforceable by or on behalf of the Trust.
(iii) The Guarantee Agreement (and the agreements with the
Department under Section 428 of the Higher Education Act to the extent
relevant to ECMC's obligations under such Guarantee Agreement) to
which ECMC is a party has been duly authorized, executed and delivered
by ECMC and is the legal, valid and binding obligation of ECMC
enforceable against ECMC in accordance with its terms, except (x) the
enforceability thereof may be subject to bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in
effect relating to creditors' rights and (y) the remedy of specific
performance and injunctive and other forms of equitable relief may be
subject to equitable defenses and to the discretion of the court
before which any proceeding therefor may be brought.
(iv) Neither the execution and delivery by ECMC of the Guarantee
Agreement to which it is a party, nor the consummation by ECMC of the
transactions contemplated therein nor the fulfillment of the terms
thereof by ECMC will conflict with, result in a breach, violation or
acceleration of, or constitute a default under, any term or provision
of the certificate of incorporation or by-laws of ECMC or of any
indenture or other agreement or instrument to which ECMC is a party or
by which ECMC is bound, or result in a violation of or contravene the
terms of any statute, order or regulation applicable to ECMC of any
court, regulatory body, administrative agency or governmental body
having jurisdiction over ECMC.
(v) There are no actions, proceedings or investigations pending
or, to the best of such officer's knowledge after due inquiry,
threatened against ECMC before or by any governmental authority that
might materially and adversely affect the performance by ECMC of its
obligations under, or the validity or enforceability of, the Guarantee
Agreement (or the agreements with the Department under Section 428 of
the Higher Education Act to the extent relevant to ECMC's obligations
under such Guarantee Agreement) to which it is a party.
(t) The Representative shall have received an opinion of counsel to
the United Student Aid Funds, Inc. ("USAF"), dated the Closing Date and
satisfactory in form and substance to the Representative and its counsel, to the
effect that:
(i) USAF has been duly incorporated and is validly existing as a
non-profit corporation in good standing under the laws of the State of
Indiana 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 USAF's obligations
under such Guarantee Agreement) to which it is a party, and had at all
relevant times, and now has, the power, authority and legal right to
guarantee the Financed Federal Loans covered by such Guarantee
Agreement and to receive, subject to compliance with all applicable
conditions, restrictions and limitations of the Higher Education Act,
reinsurance payments from the Department with respect to claims paid
by it on such Financed Federal Loans.
(ii) USAF 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 USAF's obligation under its Guarantee
Agreement to guarantee the Financed Federal Loans covered thereby
unenforceable by or on behalf of the Trust.
(iii) The Guarantee Agreement (and the agreements with the
Department under Section 428 of the Higher Education Act to the extent
relevant to USAF's obligations under such Guarantee Agreement) to
which USAF is a party has been duly authorized, executed and delivered
by USAF and is the legal, valid and binding obligation of USAF
enforceable against USAF in accordance with its terms, except (x) the
enforceability thereof may be subject to bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in
effect relating to creditors' rights and (y) the remedy of specific
performance and injunctive and other forms of equitable relief may be
subject to equitable defenses and to the discretion of the court
before which any proceeding therefor may be brought.
(iv) Neither the execution and delivery by USAF of the Guarantee
Agreement to which it is a party, nor the consummation by USAF of the
transactions contemplated therein nor the fulfillment of the terms
thereof by USAF will conflict with, result in a breach, violation or
acceleration of, or constitute a default under, any term or provision
of the certificate of incorporation or by-laws of USAF or of any
indenture or other agreement or instrument to which USAF is a party or
by which USAF is bound, or result in a violation of or contravene the
terms of any statute, order or regulation applicable to USAF of any
court, regulatory body, administrative agency or governmental body
having jurisdiction over USAF.
(v) There are no actions, proceedings or investigations pending
or, to the best of such counsel's knowledge after due inquiry,
threatened against USAF before or by any governmental authority that
might materially and adversely affect the performance by USAF of its
obligations under, or the validity or enforceability of, the Guarantee
Agreement (or the agreements with the Department under Section 428 of
the Higher Education Act to the extent relevant to USAF's obligations
under such Guarantee Agreement) to which it is a party.
(u) The Representative shall have received an officer's certificate
from the Michigan Higher Education Assistance Agency ("MHEAA"), dated the
Closing Date and satisfactory in form and substance to the Representative and
its counsel, to the effect that:
(i) MHEAA has been duly organized and is validly existing as an
agency of the State of Michigan and is in good standing under the laws
thereof with full power and authority (corporate and other) to own its
properties and conduct its business, as presently conducted by it, and
to enter into and perform its obligations under the Guarantee
Agreement (and the agreements with the Department under Section 428 of
the Higher Education Act to the extent relevant to MHEAA's obligations
under such Guarantee Agreement) to which it is a party, and had at all
relevant times, and now has, the power, authority and legal right to
guarantee the Financed Federal Loans covered by such Guarantee
Agreement and to receive, subject to compliance with all applicable
conditions, restrictions and limitations of the Higher Education Act,
reinsurance payments from the Department with respect to claims paid
by it on such Financed Federal Loans.
(ii) MHEAA 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 MHEAA's obligation under its
Guarantee Agreement to guarantee the Financed Federal Loans covered
thereby unenforceable by or on behalf of the Trust.
(iii) The Guarantee Agreement (and the agreements with the
Department under Section 428 of the Higher Education Act to the extent
relevant to MHEAA's obligations under such Guarantee Agreement) to
which MHEAA is a party has been duly authorized, executed and
delivered by MHEAA and is the legal, valid and binding obligation of
MHEAA enforceable against MHEAA in accordance with its terms, except
(x) the enforceability thereof may be subject to bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights and (y) the remedy
of specific performance and injunctive and other forms of equitable
relief may be subject to equitable defenses and to the discretion of
the court before which any proceeding therefor may be brought.
(iv) Neither the execution and delivery by MHEAA of the Guarantee
Agreement to which it is a party, nor the consummation by MHEAA of the
transactions contemplated therein nor the fulfillment of the terms
thereof by MHEAA will conflict with, result in a breach, violation or
acceleration of, or constitute a default under, any term or provision
of the certificate of incorporation or by-laws of MHEAA or of any
indenture or other agreement or instrument to which MHEAA is a party
or by which MHEAA is bound, or result in a violation of or contravene
the terms of any statute, order or regulation applicable to MHEAA of
any court, regulatory body, administrative agency or governmental body
having jurisdiction over MHEAA.
(v) There are no actions, proceedings or investigations pending
or, to the best of such officer's knowledge after due inquiry,
threatened against MHEAA before or by any governmental authority that
might materially and adversely affect the performance by MHEAA of its
obligations under, or the validity or enforceability of, the Guarantee
Agreement (or the agreements with the Department under Section 428 of
the Higher Education Act to the extent relevant to MHEAA's obligations
under such Guarantee Agreement) to which it is a party.
(v) The Representative shall have received an officer's certificate
from the Tennessee Student Assistance Corporation ("TSAC"), dated the Closing
Date and satisfactory in form and substance to the Representative and its
counsel, to the effect that:
(i) TSAC has been duly incorporated and is validly existing as a
non-profit corporation in good standing under the laws of the State of
Tennessee 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 TSAC's obligations
under such Guarantee Agreement) to which it is a party, and had at all
relevant times, and now has, the power, authority and legal right to
guarantee the Financed Federal Loans covered by such Guarantee
Agreement and to receive, subject to compliance with all applicable
conditions, restrictions and limitations of the Higher Education Act,
reinsurance payments from the Department with respect to claims paid
by it on such Financed Federal Loans.
(ii) TSAC 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 TSAC's obligation under its Guarantee
Agreement to guarantee the Financed Federal Loans covered thereby
unenforceable by or on behalf of the Trust.
(iii) The Guarantee Agreement (and the agreements with the
Department under Section 428 of the Higher Education Act to the extent
relevant to TSAC's obligations under such Guarantee Agreement) to
which TSAC is a party has been duly authorized, executed and delivered
by TSAC and is the legal, valid and binding obligation of TSAC
enforceable against TSAC in accordance with its terms, except (x) the
enforceability thereof may be subject to bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in
effect relating to creditors' rights and (y) the remedy of specific
performance and injunctive and other forms of equitable relief may be
subject to equitable defenses and to the discretion of the court
before which any proceeding therefor may be brought.
(iv) Neither the execution and delivery by TSAC of the Guarantee
Agreement to which it is a party, nor the consummation by TSAC of the
transactions contemplated therein nor the fulfillment of the terms
thereof by TSAC will conflict with, result in a breach, violation or
acceleration of, or constitute a default under, any term or provision
of the certificate of incorporation or by-laws of TSAC or of any
indenture or other agreement or instrument to which TSAC is a party or
by which TSAC is bound, or result in a violation of or contravene the
terms of any statute, order or regulation applicable to TSAC of any
court, regulatory body, administrative agency or governmental body
having jurisdiction over TSAC.
(v) There are no actions, proceedings or investigations pending
or, to the best of such officer's knowledge after due inquiry,
threatened against TSAC before or by any governmental authority that
might materially and adversely affect the performance by TSAC of its
obligations under, or the validity or enforceability of, the Guarantee
Agreement (or the agreements with the Department under Section 428 of
the Higher Education Act to the extent relevant to TSAC's obligations
under such Guarantee Agreement) to which it is a party.
(w) The Representative shall have received an opinion of counsel to
Great Lakes Higher Education Guaranty Corporation ("GLHEGC"), dated the Closing
Date and satisfactory in form and substance to the Representative and its
counsel, to the effect that:
(i) GLHEGC has been duly incorporated and is validly existing as
a non-profit corporation in good standing under the laws of the State
of Wisconsin 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 GLHEGC's
obligations under such Guarantee Agreement) to which it is a party,
and had at all relevant times, and now has, the power, authority and
legal right to guarantee the Financed Federal Loans covered by such
Guarantee Agreement and to receive, subject to compliance with all
applicable conditions, restrictions and limitations of the Higher
Education Act, reinsurance payments from the Department with respect
to claims paid by it on such Financed Federal Loans.
(ii) GLHEGC 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 GLHEGC's obligation under its
Guarantee Agreement to guarantee the Financed Federal Loans covered
thereby unenforceable by or on behalf of the Trust.
(iii) The Guarantee Agreement (and the agreements with the
Department under Section 428 of the Higher Education Act to the extent
relevant to GLHEGC's obligations under such Guarantee Agreement) to
which GLHEGC is a party has been duly authorized, executed and
delivered by GLHEGC and is the legal, valid and binding obligation of
GLHEGC enforceable against GLHEGC in accordance with its terms, except
(x) the enforceability thereof may be subject to bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights and (y) the remedy
of specific performance and injunctive and other forms of equitable
relief may be subject to equitable defenses and to the discretion of
the court before which any proceeding therefor may be brought.
(iv) Neither the execution and delivery by GLHEGC of the
Guarantee Agreement to which it is a party, nor the consummation by
GLHEGC of the transactions contemplated therein nor the fulfillment of
the terms thereof by GLHEGC will conflict with, result in a breach,
violation or acceleration of, or constitute a default under, any term
or provision of the certificate of incorporation or by-laws of GLHEGC
or of any indenture or other agreement or instrument to which GLHEGC
is a party or by which GLHEGC is bound, or result in a violation of or
contravene the terms of any statute, order or regulation applicable to
GLHEGC of any court, regulatory body, administrative agency or
governmental body having jurisdiction over GLHEGC.
(v) There are no actions, proceedings or investigations pending
or, to the best of such officer's knowledge after due inquiry,
threatened against GLHEGC before or by any governmental authority that
might materially and adversely affect the performance by GLHEGC of its
obligations under, or the validity or enforceability of, the Guarantee
Agreement (or the agreements with the Department under Section 428 of
the Higher Education Act to the extent relevant to GLHEGC's
obligations under such Guarantee Agreement) to which it is a party.
(x) The Representative shall have received an opinion of counsel to
HEMAR Insurance Company of America, an indirect subsidiary of SLM Holding
Corporation ("HICA"), dated the Closing Date and satisfactory in form and
substance to the Representative and its counsel, to the effect that:
(i) HICA has been duly incorporated and is validly existing as a
for profit insurance corporation in good standing under the laws of
the State of South Dakota with full power and authority (corporate and
other) to own its properties and conduct its business, as presently
conducted by it, and to enter into and perform its obligations under
the Surety Bonds and the Endorsement described in the Prospectus
Supplement, dated September 6, 2001, and had at all relevant times,
and now has, the power, authority and legal right to insure the
Financed Private Loans covered by such Surety Bonds and the
Endorsement thereto. The Financed Private Loans are subject to the
terms and conditions of the Surety Bonds and the Endorsement under
which they have been insured.
(ii) HICA is duly qualified to do business and is in good
standing, and has obtained all necessary licenses and approvals in
each jurisdiction in which failure to qualify or to obtain such
license or approval would render HICA's obligation under the Surety
Bonds and the Endorsement thereto to insure the Financed Private Loans
unenforceable by or on behalf of the Trust.
(iii) The Surety Bonds and the Endorsement thereto to which HICA
is a party have been duly authorized, executed and delivered by HICA
and are the legal, valid and binding obligations of HICA enforceable
against HICA in accordance with their respective terms, except (x) the
enforceability thereof may be subject to bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in
effect relating to creditors' rights and (y) the remedy of specific
performance and injunctive and other forms of equitable relief may be
subject to equitable defenses and to the discretion of the court
before which any proceeding therefor may be brought.
(iv) Neither the execution and delivery by HICA of the Surety
Bonds and the Endorsement thereto to which it is a party, nor the
consummation by HICA of the transactions contemplated therein nor the
fulfillment of the terms thereof by HICA will conflict with, result in
a breach, violation or acceleration of, or constitute a default under,
any term or provision of the certificate of incorporation or by-laws
of HICA or of any indenture or other agreement or instrument to which
HICA is a party or by which HICA is bound, or result in a violation of
or contravene the terms of any statute, order or regulation applicable
to HICA of any court, regulatory body, administrative agency or
governmental body having jurisdiction over HICA.
(v) There are no actions, proceedings or investigations pending
or, to the best of such counsel's knowledge after due inquiry,
threatened against HICA before or by any governmental authority that
might materially and adversely affect the performance by HICA of its
obligations under, or the validity or enforceability of, the Surety
Bonds and the Endorsement thereto to which it is a party.
(y) The Representative shall have received an opinion of ▇▇▇▇▇,
▇▇▇▇▇▇▇▇ & Strong, counsel to The Education Resources Institute, Inc., a
Massachusetts non-profit corporation ("▇▇▇▇"), dated the Closing Date and
satisfactory in form and substance to the Representative and its counsel, to the
effect that:
(i) ▇▇▇▇ has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the Commonwealth of
Massachusetts with full power and authority (corporate and other) to
own its properties and conduct its business, as presently conducted by
it, and to enter into and perform its obligations under the Guarantee
Agreement to which it is a party, and had at all relevant times, and
now has, the power, authority and legal right to guarantee the
Financed Private Loans covered by such Guarantee Agreement.
(ii) ▇▇▇▇ is duly qualified to do business and is in good
standing, and has obtained all necessary licenses and approvals in
each jurisdiction in which failure to qualify or to obtain such
license or approval would render TERI's obligation under its Guarantee
Agreement to guarantee the Financed Private Loans unenforceable by or
on behalf of the Trust.
(iii) The Guarantee Agreement to which ▇▇▇▇ is a party has been
duly authorized, executed and delivered by ▇▇▇▇ and is the legal,
valid and binding obligation of ▇▇▇▇ enforceable against ▇▇▇▇ in
accordance with its terms, except (x) the enforceability thereof may
be subject to bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or hereafter in effect relating to creditors'
rights and (y) the remedy of specific performance and injunctive and
other forms of equitable relief may be subject to equitable defenses
and to the discretion of the court before which any proceeding
therefor may be brought.
(iv) Neither the execution and delivery by ▇▇▇▇ of the Guarantee
Agreement to which it is a party, nor the consummation by ▇▇▇▇ of the
transactions contemplated therein nor the fulfillment of the terms
thereof by ▇▇▇▇ will conflict with, result in a breach, violation or
acceleration of, or constitute a default under, any term or provision
of the certificate of incorporation or by-laws of ▇▇▇▇ or of any
indenture or other agreement or instrument to which ▇▇▇▇ is a party or
by which ▇▇▇▇ is bound, or result in a violation of or contravene the
terms of any statute, order or regulation applicable to ▇▇▇▇ of any
court, regulatory body, administrative agency or governmental body
having jurisdiction over ▇▇▇▇.
(v) There are no actions, proceedings or investigations pending
or, to the best of such counsel's knowledge after due inquiry,
threatened against ▇▇▇▇ before or by any governmental authority that
might materially and adversely affect the performance by ▇▇▇▇ of its
obligations under, or the validity or enforceability of, the Guarantee
Agreement to which it is a party.
(z) The Representative shall have received an opinion of ▇▇▇▇▇▇ &
▇▇▇▇▇▇, counsel to the Indenture Trustee, dated the Closing Date and
satisfactory in form and substance to the Representative and its counsel, to the
effect that:
(i) The Indenture Trustee is a banking corporation validly
exiting under the laws of the State of New York and is duly authorized
and empowered to exercise trust powers under applicable law.
(ii) The Indenture Trustee has the requisite power and authority
to execute, deliver and perform its obligations under the Indenture,
the Sale and Servicing Agreement and the Administration Agreement, and
has taken all necessary action to authorize the execution, delivery
and performance by it under the Indenture, the Sale and Servicing
Agreement and the Administration Agreement.
(iii) Each of the Indenture, the Sale and Servicing Agreement and
the Administration Agreement, has been duly executed and delivered by
the Indenture Trustee and constitutes a legal, valid and binding
obligation of the Indenture Trustee, enforceable against the Indenture
Trustee in accordance with its respective terms, except that certain
of such obligations may be enforceable solely against the Indenture
Trust Estate and except that such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium, liquidation, or
other similar laws applicable to banking corporations affecting the
enforcement of creditors' rights generally, and by general principles
of equity, including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing (regardless of whether
such enforceability is considered in a proceeding in equity or at
law).
(iv) The Notes delivered on the date hereof have been duly
authenticated by the Indenture Trustee in accordance with the terms of
the Indenture.
(aa) The Representative shall have received an opinion of counsel to
the Eligible Lender Trustee, dated the Closing Date and satisfactory in form and
substance to the Representative and its counsel, to the effect that:
(i) The Eligible Lender Trustee is a national banking association
duly incorporated or organized and validly existing under the laws of
the United States.
(ii) The Eligible Lender Trustee has the full corporate trust
power to accept the office of eligible lender trustee under the Trust
Agreement and to enter into and perform its obligations under the
Trust Agreement, the Sale and Servicing Agreement and, on behalf of
the Trust, under the Indenture, the Sale and Servicing Agreement, the
Administration Agreement, the Interest Rate Swaps, the Insurance
Agreement, the Cap Agreements, the Put Options and the Guarantee
Agreements.
(iii) The execution and delivery of the Trust Agreement and the
Sale and Servicing Agreement and, on behalf of the Trust, of the
Indenture, the Sale and Servicing Agreement, the Administration
Agreement, the Interest Rate Swaps, the Insurance Agreement, the Cap
Agreements, the Put Options and the Guarantee Agreements, and the
performance by the Eligible Lender Trustee of its obligations under
the Trust Agreement, the Indenture, the Sale and Servicing Agreement,
the Administration Agreement, the Interest Rate Swaps, the Insurance
Agreement, the Cap Agreements, the Put Options and the Guarantee
Agreements have been duly authorized by all necessary action of the
Eligible Lender Trustee and each has been duly executed and delivered
by the Eligible Lender Trustee.
(iv) The Trust Agreement, the Sale and Servicing Agreement and
the Administration Agreement constitute valid and binding obligations
of the Eligible Lender Trustee enforceable against the Eligible Lender
Trustee in accordance with their terms.
(v) The execution and delivery by the Eligible Lender Trustee of
the Trust Agreement and the Sale and Servicing Agreement and, on
behalf of the Trust, of the Indenture, the Sale and Servicing
Agreement, the Administration Agreement, the Interest Rate Swaps, the
Insurance Agreement, Cap Agreements, the Put Options and the Guarantee
Agreements do not require any consent, approval or authorization of,
or any registration or filing with, any applicable governmental
authority.
(vi) The Certificate 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, on behalf of the Trust.
(vii) Neither the consummation by the Eligible Lender Trustee of
the transactions contemplated in the Sale and Servicing Agreement, the
Indenture, the Trust Agreement or the Administration Agreement nor the
fulfillment of the terms thereof by the Eligible Lender Trustee will
conflict with, result in a breach or violation of, or constitute a
default under any law or the charter, by-laws or other organizational
documents of the Eligible Lender Trustee or the terms of any indenture
or other agreement or instrument known to such counsel and to which
the Eligible Lender Trustee or any of its subsidiaries is a party or
is bound or any judgment, order or decree known to such counsel to be
applicable to the Eligible Lender Trustee or any of its subsidiaries
of any court, regulatory body, administrative agency, governmental
body or arbitrator having jurisdiction over the Eligible Lender
Trustee or any of its subsidiaries.
(viii) There are no actions, suits or proceedings pending or, to
the best of such counsel's knowledge after due inquiry, threatened
against the Eligible Lender Trustee (as eligible lender trustee under
the Trust Agreement or in its individual capacity) before or by any
governmental authority that might materially and adversely affect the
performance by the Eligible Lender Trustee of its obligations under,
or the validity or enforceability of, the Trust Agreement or the Sale
and Servicing Agreement.
(ix) The execution, delivery and performance by the Eligible
Lender Trustee of the Sale and Servicing Agreement, the Indenture, the
Trust Agreement, the Administration Agreement, the Interest Rate
Swaps, the Insurance Agreement, the Cap Agreements, the Put Options or
any Guarantee Agreement will not subject any of the property or assets
of the Trust or any portion thereof, to any lien created by or arising
under the Eligible Lender Trustee that are unrelated to the
transactions contemplated in such agreements.
(bb) The Representative shall have received an opinion of ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ LLP, Delaware counsel to the Trust, dated the Closing Date, in form and
substance satisfactory to the Representative and its counsel.
(cc) The Representative shall have received an opinion of ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ LLP, counsel to Bank One Delaware, Inc. in its capacity as Delaware
Trustee under the Trust Agreement, dated the Closing Date, in form and substance
satisfactory to the Representative and its counsel.
(dd) The Representative shall have received certificates dated the
Closing Date of any two of the Chairman of the Board, the President, any
Executive Vice President, Senior Vice President or Vice President, the
Secretary, any Assistant Secretary, the Treasurer, any Assistant Treasurer, the
principal financial officer or the principal accounting officer of KBUSA in
which such officers shall state that, to the best of their knowledge after
reasonable investigation, (i) the representations and warranties of KBUSA,
contained in each Basic Document to which it is a party, are true and correct in
all material respects, that KBUSA has complied with all agreements and satisfied
all conditions on its part to be performed or satisfied under such agreements,
in whatever capacity it is a party to such agreements, at or prior to the
Closing Date, and that no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose have
been instituted or are contemplated by the Commission, and (ii) since June 30,
2001, except as may be disclosed in the Prospectus or in such certificate, no
material adverse change, or any development involving a prospective material
adverse change, in or affecting particularly the business or properties of the
Trust or KBUSA, as applicable, has occurred.
(ee) The Representative shall have received certificates dated the
Closing Date of any two of the Chairman of the Board, the President, any
Executive Vice President, Senior Vice President or Vice President, the
Secretary, any Assistant Secretary, the Treasurer, any Assistant Treasurer, the
principal financial officer or the principal accounting officer of KBNA in which
such officers shall state that, to the best of their knowledge after reasonable
investigation, (i) the representations and warranties of KBNA contained in the
Put Options are true and correct in all material respects, that KBNA has
complied with all agreements and satisfied all conditions on its part to be
performed or satisfied under such agreements, in whatever capacity it is a party
to such agreements, at or prior to the Closing Date, and (ii) since June 30,
2001, except as may be disclosed in the Prospectus or in such certificate, no
material adverse change, or any development involving a prospective material
adverse change, in or affecting particularly the business or properties of KBNA,
has occurred.
(ff) The Representative shall have received an opinion of ▇▇▇▇▇ ▇▇▇▇
LLP, counsel for the Securities Insurer, dated the Closing Date, satisfactory in
form and substance to the Representative and its counsel to the effect that:
(i) The Securities Insurer is a stock insurance corporation, duly
incorporated and validly existing under the laws of the State of New
York. The Securities Insurer is validly licensed and authorized to
issue the Group II Notes Guaranty Insurance Policy and perform its
obligations under the Group II Notes Guaranty Insurance Policy in
accordance with the terms thereof, under the laws of the State of New
York.
(ii) The execution and delivery by the Securities Insurer of the
Group II Notes Guaranty Insurance Policy is within the corporate power
of the Securities Insurer, and each has been authorized by all
necessary corporate action on the part of the Securities Insurer; the
Group II Notes Guaranty Insurance Policy has been duly executed is
legal, valid and binding obligations of the Securities Insurer
enforceable in accordance with its terms, except that the enforcement
of the Group II Notes Guaranty Insurance Policy may be limited by laws
relating to bankruptcy, insolvency, reorganization, moratorium,
receivership and other similar laws affecting creditors' rights
generally and by general principles of equity (regardless of whether
the enforcement of such remedies is considered in a proceeding in
equity or at law).
(iii) The Securities Insurer is authorized to deliver the
Insurance Agreement and the Indemnification Agreement, assuming due
execution by the other parties thereto, and such agreements have been
duly executed and are the valid and binding obligations of the
Securities Insurer enforceable in accordance with its terms, except
that the enforcement of such agreement may be limited by laws relating
to bankruptcy, insolvency, reorganization, moratorium, receivership
and other similar laws affecting creditors' rights generally and by
general principles of equity (regardless of whether the enforcement of
such remedies is considered in a proceeding in equity or at law) and,
in the case of the Indemnification Agreement, subject to principles of
public policy limiting the right to enforce the indemnification
provisions contained therein insofar as such provisions relate to
indemnification for liabilities arising under the securities law.
(iv) No consent, approval, authorization or order of any state or
federal court or governmental agency or body is required on the part
of the Securities Insurer the lack of which would adversely affect the
validity or enforceability of the Group II Notes Guaranty Insurance
Policy, to the extent failure to comply with applicable legal
requirements would adversely affect validity or enforceability of the
Group II Notes Guaranty Insurance Policy; the form of the Group II
Notes Guaranty Insurance Policy has been filed with, and approved by,
all governmental authorities having jurisdiction over the Securities
Insurer in connection with such Group II Notes Guaranty Insurance
Policy.
(v) To the extent the Group II Notes Guaranty Insurance Policy
constitutes a security within the meaning of Section 2(1) of the Act
of 1933, it is a security that is exempt from the registration
requirements of the Act.
(vi) The execution and delivery of the Insurance Agreement and
the Group II Notes Guaranty Insurance Policy, and the compliance with
the terms and provisions thereof, will not conflict with, result in a
breach of or constitute a default under any of the terms, provisions
or conditions of the amended charter or bylaws of the Securities
Insurer.
(vii) The information set forth under the caption "THE GROUP II
NOTES GUARANTY INSURANCE POLICY AND THE SECURITIES INSURER" in the
Prospectus Supplement dated September 6, 2001, insofar as such
information constitutes a description of the Group II Notes Guaranty
Insurance Policy, accurately summarizes the Group II Notes Guaranty
Insurance Policy.
In rendering this opinion, such counsel may rely, as to matters of fact, on
certificates of responsible officers of the Securities Insurer, the Depositor,
and public officials. Such opinion may assume the due authorization, execution
and delivery of the instruments and documents referred to therein by the parties
thereto other than the Securities Insurer.
(gg) The Representative shall have received certificates dated the
Closing Date of any two of the Chairman of the Board, the President, any
Executive Vice President, Senior Vice President or Vice President, the
Secretary, any Assistant Secretary, the Treasurer, any Assistant Treasurer, the
principal financial officer or the principal accounting officer of each of the
Sub-Servicers in which such officers shall state that, to the best of their
knowledge after reasonable investigation, (i) the representations and warranties
of such Sub-Servicer contained in the related Subservicing Agreement are true
and correct in all material respects, and that such Sub-Servicer has complied
with all agreements and satisfied all conditions on its part to be performed or
satisfied under such agreements at or prior to the Closing Date, and (ii) since
June 30, 2001 except as may be disclosed in the Prospectus or in such
certificate, no material adverse change, or any development involving a
prospective material adverse change, in or affecting particularly the business
or properties of such Sub-Servicer.
(hh) The Representative shall have received evidence satisfactory to
it that, on or before the Closing Date, UCC-1 financing statements have been or
are being filed in the office of the Secretary of State of the States of Ohio,
Delaware, and Illinois, as applicable, reflecting the following:
(i) transfer of the interest of KBUSA in the Financed Student
Loans to the Depositor and the Depositor Eligible Lender Trustee; and
(ii) transfer of the interest of Key Consumer QSPE LLC (and its
related eligible lender trustee) in the Financed Student Loans and the
proceeds thereof to the Depositor and the Depositor Eligible Lender
Trustee; and
(iii) transfer of the interest of the Depositor (and its related
eligible lender trustee) in the Financed Student Loans and the
proceeds thereof to the Trust; and
(iv) transfer of the interest of the Trust (and its related
eligible lender trustee) in the Financed Student Loans and the
proceeds thereof to the Indenture Trustee; and the grant of the
security interest by the Trust (and its related eligible lender
trustee) in the Financed Student Loans of the rights of the Trust
under the Interest Rate Swaps and the Cap Agreements and the proceeds
thereof to the Indenture Trustee.
(ii) The Representative shall have received evidence satisfactory to
it that, on or before the Closing Date, UCC-3 financing statements have been or
are being filed in the office of the Secretary of State of the States of Ohio,
Delaware, and Illinois, as applicable, reflecting the release of the interest of
Key Consumer QSPE LLC in the Financed Student Loans and the proceeds thereof.
(jj) The Representative shall have received evidence satisfactory to
it that, on or before the Closing Date, all liens of QSPE relating to the QSPE
Student Loans have been released.
(kk) Each Class of Notes has been given at least the following ratings
from Fitch, Inc. ("Fitch"), ▇▇▇▇▇'▇ Investors Service, Inc. ("▇▇▇▇▇'▇"), and
Standard & Poor's Ratings Services, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies,
Inc. ("S&P" and each a "Rating Agency"), and no Rating Agency shall have placed
any class of Notes under surveillance or review with possible negative
implications:
Class of Notes Fitch ▇▇▇▇▇'▇ S&P
-------------- ----- ------- ---
Class I-A-1 AAA Aaa AAA
Class I-A-2 AAA Aaa AAA
Class I-B A A3 A
Class II-A-1 AAA Aaa AAA
Class II-A-2 AAA Aaa AAA
(ll) The issuance of the Notes shall not have resulted in a reduction
or withdrawal by any Rating Agency of the current rating of any outstanding
securities issued or originated by KBUSA.
(mm) ▇▇▇▇ shall have furnished to the Representative a certificate of
▇▇▇▇, signed by the President or any Executive Vice President, dated the Closing
Date, to the effect that the signer of such certificate has carefully examined
the Prospectus (excluding any documents incorporated by reference therein) and
this Agreement and that, to the best of his knowledge any information with
respect to ▇▇▇▇ in the Prospectus, as of its date, did not contain any untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading.
(nn) PHEAA shall have furnished to the Representative a certificate of
PHEAA, signed by the President or any Senior Vice President, dated the Closing
Date, to the effect that the signer of such certificate has carefully examined
the Prospectus (excluding any documents incorporated by reference therein) and
this Agreement and that, to the best of his knowledge any information with
respect to PHEAA in the Prospectus, as of its date, did not contain any untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading.
(oo) ASA shall have furnished to the Representative a certificate of
ASA, signed by the President or any Senior Vice President, dated the Closing
Date, to the effect that the signer of such certificate has carefully examined
the Prospectus (excluding any documents incorporated by reference therein) and
this Agreement and that, to the best of his knowledge any information with
respect to ASA in the Prospectus, as of its date, did not contain any untrue
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.
(pp) Great Lakes shall have furnished to the Representative a
certificate of Great Lakes, signed by the President or any Executive Vice
President, dated the Closing Date, to the effect that the signer of such
certificate has carefully examined the Prospectus (excluding any documents
incorporated by reference therein) and this Agreement and that, to the best of
his knowledge any information with respect to Great Lakes in the Prospectus, as
of its date, did not contain any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
(qq) CSAC shall have furnished to the Representative a certificate of
CSAC, signed by the President or any Senior Vice President, dated the Closing
Date, to the effect that the signer of such certificate has carefully examined
the Prospectus (excluding any documents incorporated by reference therein) and
this Agreement and that, to the best of his knowledge any information with
respect to CSAC in the Prospectus, as of its date, did not contain any untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading.
(rr) HICA shall have furnished to the Representative a certificate of
HICA, signed by the President or any Senior Vice President, dated the Closing
Date, to the effect that the signer of such certificate has carefully examined
the Prospectus (excluding any documents incorporated by reference therein) and
this Agreement and that, to the best of his knowledge any information with
respect to HICA in the Prospectus, as of its date, did not contain any untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading.
(ss) NSLP shall have furnished to the Representative a certificate of
NSLP, signed by the President or any Senior Vice President, dated the Closing
Date, to the effect that the signer of such certificate has carefully examined
the Prospectus (excluding any documents incorporated by reference therein) and
this Agreement and that, to the best of his knowledge any information with
respect to NSLP in the Prospectus, as of its date, did not contain any untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading.
(tt) The Representative shall have received a certificate signed by
one or more duly authorized officers of the Securities Insurer, dated the
Closing Date, to the effect that the information contained under the caption
"The Group II Notes Guaranty Insurance Policy and the Securities Insurer" in the
Prospectus Supplement and the information incorporated by reference therein is
true and accurate in all material respects, and such other matters as the
Representative, shall request.
(uu) Each of the Basic Documents shall have been executed and
delivered by the parties thereto. Each of the Sub-Servicers shall have executed
and delivered the related Sub-Servicing Agreement. Each of the Guarantors shall
have executed and delivered the related Guarantee Agreement.
(vv) The Group II Notes Guaranty Insurance Policy shall have been
issued and be validly existing as of the Closing Date.
KBUSA will provide or cause to be provided to the Representative
copies of each opinion delivered to the Securities Insurer and/or any Rating
Agency addressed to the Representative and such conformed copies of such of the
foregoing opinions, certificates, letters and documents as the Representative
reasonably requests.
7. INDEMNIFICATION AND CONTRIBUTION. (a) The Depositor and KBUSA will
jointly and severally indemnify and hold each Underwriter harmless against any
losses, claims, damages or liabilities, joint or several, to which such
Underwriter may become subject under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in (x) the Registration Statement, the Preliminary
Prospectus Supplement, the Prospectus or any amendment or supplement thereto, or
arise out of or are based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading, and (y) the Prospectus or any amendment or
supplement thereto or any related Preliminary Prospectus Supplement, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading and will reimburse each
Underwriter for any legal or other expenses reasonably incurred by such
Underwriter in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred; PROVIDED, HOWEVER,
that neither the Depositor nor KBUSA will be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement in or omission or alleged
omission from any of such documents in reliance upon and in conformity with the
Underwriter Information furnished to the Depositor or KBUSA by any Underwriter
through the Representative specifically for use therein.
(b) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Depositor and KBUSA against any losses, claims, damages or
liabilities to which the Depositor or KBUSA may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in (x) the Registration
Statement, the Preliminary Prospectus Supplement, the Prospectus or any
amendment or supplement thereto, or arise out of or are based upon the omission
or the alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and (y) the
Prospectus or any amendment or supplement thereto or any related Preliminary
Prospectus Supplement, or arise out of or are based upon the omission or alleged
omission to state therein a material fact necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading and in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged omission was
made in reliance upon and in conformity with the Underwriter Information
relating to such Underwriter furnished to the Depositor or KBUSA by such
Underwriter through the Representative specifically for use therein, and will
reimburse any legal or other expenses reasonably incurred by the Depositor and
KBUSA in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under this Section
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
subsection (a) or (b) above, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
such indemnifying party from any liability which it may have to any indemnified
party otherwise than under subsection (a) or (b) above, except, and only to the
extent, that the indemnifying party is materially prejudiced as a result of such
failure to receive notice. In case any such action is brought against any
indemnified party and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein and, to
the extent that it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party), and after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof and approval by the indemnified party of the counsel appointed
by the indemnifying party, the indemnifying party will not be liable to such
indemnified party under this Section for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation. In no event shall the
indemnifying party be liable for fees and expenses for more than one counsel
separate from their own counsel for all indemnified parties in connection with
any one action or related actions in the same jurisdiction arising out of the
same general allegations or circumstances unless any such indemnified party
shall have been advised by such counsel that there may be one or more legal
defenses available to it which are different from or additional to or in
conflict with those available to the other indemnified parties and in the
judgment of such counsel it is advisable for such indemnified party to employ
separate counsel. An indemnifying party will not, without the prior written
consent of the indemnified party, settle or compromise or consent to the entry
of any judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
(i) includes an unconditional release of each indemnified party from all
liability arising out of such action or claim and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to act, by or
on behalf of any indemnified party.
(d) If the indemnification provided for in this Section is unavailable
or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnifying party as a result of the losses, claims, damages or
liabilities referred to in subsection (a) or (b) above (i) in such proportion as
is appropriate to reflect the relative benefits received by the Depositor and
KBUSA on the one hand and the Underwriters on the other from the offering of the
Notes or (ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Depositor and KBUSA on the one hand and the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities as well as any other relevant equitable
considerations. The relative benefits received by the Depositor and KBUSA on the
one hand and the Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering (before deducting
expenses) received by the Depositor and KBUSA bear to the total underwriting
discounts and commissions received by the Underwriters. The relative fault shall
be determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Depositor and KBUSA or by
the Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission. Each of the Depositor, KBUSA and the Underwriters agree that it would
not be just and equitable if contribution pursuant to this subsection (d) were
determined by PRO RATa allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above in this
subsection (d). The amount paid or payable by an indemnified party as a result
of the losses, claims, damages or liabilities referred to in the first sentence
of this subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any action or claim which is the subject of this subsection (d).
Notwithstanding the provisions of this subsection (d), no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Notes underwritten by it and offered and distributed to the
public exceeds the amount of any damages which such Underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission, except as may be provided in any agreement among
the Underwriters relating to the offering of the Notes. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The obligations of the Underwriters in this
subsection (d) to contribute are several in proportion their respective
underwriting obligations and not joint.
(e) The obligations of the Depositor and KBUSA under this Section
shall be in addition to any liability which the Depositor or KBUSA may otherwise
have and shall extend, upon the same terms and conditions, to each person, if
any, who controls any Underwriter within the meaning of the Act; and the
obligations of the Underwriters under this Section shall be in addition to any
liability which the respective Underwriters may otherwise have and shall extend,
upon the same terms and conditions, to each director of the Depositor or KBUSA
to each officer of the Depositor or KBUSA who has signed the Registration
Statement and to each person, if any, who controls the Depositor and KBUSA
within the meaning of the Act.
8. SURVIVAL OF REPRESENTATIONS AND OBLIGATIONS. The respective
indemnities, agreements, representations, warranties and other statements of the
Depositor and KBUSA or its officers and of the several Underwriters set forth in
or made pursuant to this Agreement or contained in certificates of officers of
the Underwriters or officers of the Depositor and KBUSA submitted pursuant
hereto shall remain operative and in full force and effect, regardless of any
investigation or statement as to the results thereof, made by or on behalf of
any Underwriter, the Depositor and KBUSA or any of their respective
representatives, officers or directors or any controlling person, and will
survive delivery of and payment for the Notes. If for any reason the purchase of
the Notes by the Underwriters is not consummated, the Depositor and KBUSA shall
remain responsible for the expenses to be paid or reimbursed by the Depositor
and KBUSA pursuant to Section 5 and the respective obligations of the Depositor
and KBUSA and the Underwriters pursuant to Section 7 shall remain in effect. If
for any reason the purchase of the Notes by the Underwriters is not consummated
(other than pursuant to Section 9), the Depositor and KBUSA will reimburse the
Underwriters for all out-of-pocket expenses (including fees and disbursements of
counsel) reasonably incurred by them in connection with the offering of the
Notes.
9. FAILURE TO PURCHASE THE NOTES. If any Underwriter or Underwriters
default in their obligations to purchase its portion of the Notes hereunder and
the aggregate principal amount of the Notes that such defaulting Underwriter or
Underwriters agreed but failed to purchase does not exceed 10% of the total
principal amount of the Notes, the Representative may make arrangements
satisfactory to the Depositor and KBUSA for the purchase of such Notes by other
persons, including any of the Underwriters, but if no such arrangements are made
by the Closing Date, the non-defaulting Underwriters shall be obligated
severally, in proportion to their respective commitments hereunder, to purchase
the Notes that such defaulting Underwriters agreed but failed to purchase. If
any Underwriter or Underwriters so default and the aggregate principal amount of
the Notes with respect to such default or defaults exceeds 10% of the total
principal amount of the Notes and arrangements satisfactory to the
Representative and the Depositor and KBUSA for the purchase of such Notes by
other persons are not made within 36 hours after such default, this Agreement
will terminate without liability on the part of any non-defaulting Underwriter
or the Depositor and KBUSA except as provided in Section 7. As used in this
Agreement, the term "Underwriter" includes any person substituted for an
Underwriter under this Section. Nothing herein will relieve a defaulting
Underwriter or Underwriters from liability for its default.
10. NOTICES. All communications hereunder will be in writing and, if
sent to the Underwriters, will be mailed, delivered or telegraphed and confirmed
to the Representative at ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention:
▇▇▇▇ ▇▇▇▇; if sent to KBUSA, will be mailed, delivered or telegraphed and
confirmed to it at Key Bank USA, National Association, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: Senior Vice President, Education Lending; if
sent to the Depositor, will be mailed, delivered or telegraphed and confirmed to
it at Key Consumer Receivables LLC, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇; PROVIDED, HOWEVER, that any notice to an Underwriter
pursuant to Section 7 will be mailed, delivered or telegraphed and confirmed to
such Underwriter. Any such notice will take effect at the time of receipt.
11. SUCCESSORS. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 7, and no other
person will have any right or obligations hereunder.
12. REPRESENTATION OF UNDERWRITERS. The Representative shall act for
the several Underwriters in connection with this financing, and any action under
this Agreement taken by the Representative will be binding upon all the
Underwriters.
13. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
14. APPLICABLE LAW. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF
LAWS PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS; IN ADDITION EACH
PARTY HERETO IRREVOCABLY WAIVES ANY RIGHTS IT MIGHT HAVE TO TRIAL BY JURY.
If the foregoing is in accordance with the understanding of the
Representative of our agreement, kindly sign and return to us one of the
counterparts hereof, whereupon it will become a binding agreement between the
Depositor and KBUSA and the several Underwriters in accordance with its terms.
Very truly yours,
KEY BANK USA, NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Vice President
Very truly yours,
KEY CONSUMER RECEIVABLES LLC By:
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
The foregoing Note Underwriting
Agreement is hereby confirmed
and accepted as of the date
first written above.
DEUTSCHE BANC ALEX. BROWN INC.
Acting on behalf of itself and as Representative
of the several Underwriters.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇ ▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇▇▇▇
Title: Managing Director
SCHEDULE I
CLASS I-A-1 CLASS I-A-2 CLASS I-B CLASS II-A-1 CLASS II-A-2
----------- ----------- --------- ------------ ------------
Deutsche Banc ▇▇▇▇. ▇▇▇▇▇ Inc................... $49,000,000 $120,750,000 $5,250,000 $33,900,000 $191,100,000
McDonald Investments Inc., a wholly owned
subsidiary of KeyCorp........................... $49,000,000 $120,750,000 $5,250,000 $33,900,000 $191,100,000
Total........................................... $98,000,000 $241,500,000 $10,500,000 $67,800,000 $382,200,000
APPENDIX A
[See Appendix A to Sale and Servicing Agreement]
EXHIBIT A
Form of Opinion of Counsel
to Key Bank USA, National Association
September 14, 2001
Deutsche Banc ▇▇▇▇. ▇▇▇▇▇ ▇▇▇▇▇'▇ Investors Service, Inc.
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Bank One, National Association Fitch, Inc.
▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇-0126 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-0126 New York, New York 10004
The Chase Manhattan Bank Standard & Poor's Ratings Group
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
MBIA Insurance Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Re: KEYCORP STUDENT LOAN TRUST 2001-A
Gentlemen:
I am the General Counsel of Key Bank USA, National Association (the "Bank")
and have acted as counsel to the Bank and its wholly owned subsidiaries Key
Consumer Receivables LLC ("KCRL") and Key Consumer QSPE LLC ("QSPE", and
together with "KCRL", the "Companies") in connection with the issuance and sale
by KeyCorp Student Loan Trust 2001-A (the "Trust") of Floating Rate Class I-A-1
Asset Backed Notes in the aggregate principal amount of $98,000,000, Floating
Rate Class I-A-2 Asset Backed Notes in the aggregate principal amount of $
241,500,000, Floating Rate Class I-B Asset Backed Notes in the aggregate
principal amount of $10,500,000 , Floating Rate Class II-A-1 Asset Backed Notes
in the aggregate principal amount of $67,800,000 and Floating Rate Class II-A-2
Asset Backed Notes in the aggregate principal amount of $382,200,000, pursuant
to the Note Underwriting Agreement relating thereto among the Bank, KCRL and
Deutsche Bank Securities Inc. (the "Underwriting Agreement"). Except as
otherwise indicated herein, capitalized terms are defined as set forth in the
Underwriting Agreement. As used herein, "Principal Documents" shall mean,
collectively, (a) the Sale and Servicing Agreement, the Student Loan Transfer
Agreements, the Great Lakes Sub-Servicing Agreement, the PHEAA Sub-Servicing
Agreements, the Trust Agreement, the Cap Agreements, the Interest Rate Swaps,
the Insurance Agreement, the Indemnification Agreement and the Administration
Agreement, and (b) the Guarantee Agreement to which the Bank, ▇▇▇▇, and the
Eligible Lender Trustee are parties.
Based upon and subject to the limitations and qualifications set forth
below, I am of the opinion that:
(1) The Bank has been duly organized and is validly existing as a national
banking association in good standing under the laws of the United States of
America, with corporate power 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 Agreement and the Principal Documents to
which it is a party, and had, at all relevant times, and now has the corporate
power and authority, and legal right, to acquire, own, and sell the Initial
Financed Student Loans it sold to KCRL.
(2) KCRL has been duly organized and is validly existing as a limited
liability company in good standing under the laws of the State of Delaware with
corporate power 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 Agreement and the Principal Documents to which it is a party and
had, at all relevant times, and now has the corporate power and authority, and
legal right, to acquire, own, and sell the Initial Financed Student Loans to the
Trust.
(3) QSPE has been duly organized and is validly existing as a limited
liability company in good standing under the laws of the State of Delaware, with
corporate power 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
Principal Documents to which it is a party, and had, at all relevant times, and
now has the corporate power and authority, and legal right, to acquire, own, and
sell the Initial Financed Student Loans it sold to KCRL.
(4) KCRL has duly authorized, executed, and delivered the written order to
the Eligible Lender Trustee to authenticate the Certificate. When the
Certificate has been duly executed, authenticated and delivered in accordance
with the Trust Agreement, it will be validly issued and entitled to the benefits
of the Trust Agreement, subject to the General Qualifications (as defined in
Appendix A).
(5) KCRL has duly authorized, executed, and delivered the written order to
the Eligible Lender Trustee to execute and deliver the Issuer Order to the
Indenture Trustee. When the Notes have been duly executed, delivered, and
authenticated in accordance with the Indenture and delivered and paid for
pursuant to the Underwriting Agreement, the Notes will be validly issued and
entitled to the benefits of the Indenture, subject to the General
Qualifications.
(6) The Bank has duly authorized, executed, and delivered the Principal
Documents to which it is a party and such Principal Documents are legal, valid,
and binding obligations of the Bank, enforceable against it in accordance with
their terms, subject to the General Qualifications.
(7) KCRL has duly authorized, executed, and delivered the Underwriting
Agreement and the Principal Documents to which it is a party and such Principal
Documents are legal, valid, and binding obligations of KCRL, enforceable against
KCRL in accordance with their terms, subject to the General Qualifications.
(8) QSPE has duly authorized, executed, and delivered the Principal
Documents to which it is a party and such Principal Documents are legal, valid,
and binding obligations of QSPE, enforceable against QSPE in accordance with
their terms, subject to the General Qualifications.
(9) Neither the transfer of the Initial Financed Loans sold by the Bank to
KCRL, nor the execution and delivery by the Bank of the Underwriting Agreement
and the Principal Documents to which it is a party, nor the consummation of the
transactions contemplated by the Underwriting Agreement and such Principal
Documents, nor the performance by the Bank of its obligations thereunder will
(i) violate the Articles of Association and by-laws, as amended, of the Bank,
(ii) breach, or result in a default under or acceleration of, any existing
obligation of the Bank in any indenture, agreement, or instrument actually known
to me, after a reasonable investigation, which breach or default would
reasonably be expected to have a material adverse effect on the condition of the
Bank, financial or otherwise, or adversely effect the transactions contemplated
by the Principal Documents to which it is a party to, (iii) violate or
contravene the terms of any Court Order actually known to me, or (iv) violate or
contravene the terms of applicable provisions of statutory law or regulation.
(10) Neither the transfer of the Initial Financed Loans by KCRL to the
Eligible Lender Trustee on behalf of the Trust, nor the assignment by KCRL 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 KCRL of the Underwriting Agreement and the
Principal Documents to which it is a party, nor the consummation of the
transactions contemplated by the Underwriting Agreement or such Principal
Documents nor the performance by KCRL of its obligations thereunder will (i)
violate the Certificate of Formation or the Limited Liability Company Agreement,
as amended, of KCRL, (ii) breach, or result in a default under or acceleration
of, any existing obligation of KCRL in any indenture, agreement, or instrument
actually known to me, after a reasonable investigation, which breach or default
would reasonably be expected to have a material adverse effect on the condition
of KCRL, financial or otherwise, or adversely effect the transactions
contemplated by the Principal Documents to which it is a party to, (iii) violate
or contravene the terms of any Court Order actually known to me, or (iv) violate
or contravene the terms of applicable provisions of statutory law or regulation.
(11) Neither the transfer of the Initial Financed Loans sold by QSPE to
KCRL, nor the execution and delivery by QSPE of the Principal Documents to which
it is a party, nor the consummation of the transactions contemplated by the
Principal Documents nor the performance by QSPE of its obligations thereunder
will (i) violate the Certificate of Formation or the Limited Liability Company
Agreement, as amended, of QSPE, (ii) breach, or result in a default under or
acceleration of, any existing obligation of QSPE in any indenture, agreement, or
instrument actually known to me, after a reasonable investigation, which breach
or default would reasonably be expected to have a material adverse effect on the
condition of QSPE, financial or otherwise, or adversely effect the transactions
contemplated by the Principal Documents to which it is a party to, (iii) violate
or contravene the terms of any Court Order actually known to me, or (iv) violate
or contravene the terms of applicable provisions of statutory law or regulation.
(12) There are no actions, proceedings or investigations pending against
the Bank or either of the Companies or, to my actual knowledge, threatened
against any of them before any court, administrative agency, or tribunal (i)
asserting the invalidity of the Trust or any of the Underwriting Agreement or
Principal Documents, (ii) seeking to prevent the consummation of any of the
transactions contemplated by any of the Underwriting Agreement 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 Agreement or Principal Documents against the Bank or either of the
Companies or the ability of any of them to perform their obligations thereunder.
(13) No consent, approval, authorization, or order of, or filing with, any
court or governmental agency or body is required of the Bank or either of the
Companies for the consummation of the transactions contemplated in the Principal
Documents, except such consents, approvals, authorizations, or orders as have
been obtained or such filings as have been made.
(14) To my actual knowledge, there are no legal or governmental proceedings
pending or threatened against the Bank or either of the Companies that are
required to be disclosed in the Registration Statement, other than those
disclosed therein.
(15) To my actual knowledge, there are no contracts, indentures, mortgages,
loan agreements, notes, leases, or other instruments to which the Bank or either
of the Companies 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 therein or filed or incorporated by reference as
exhibits thereto.
For purposes of this opinion, I have assumed that (i) with respect to the
opinions expressed in paragraphs 6 through 11, the Bank, QSPE and KCRL each hold
the requisite title and rights to the Financed Student Loans each is
transferring, (ii) the Underwriting Agreement and the Principal Documents have
been duly executed and delivered by all parties thereto (other than the Bank and
the Companies) and are valid and binding upon and enforceable against such
parties, subject to the General Qualifications, (iii) there has been no mutual
mistake of fact or misunderstanding, fraud, duress, or undue influence, (iv) all
statutes, judicial and administrative decisions, and rules and regulations
constituting Federal law and the laws of the State of Ohio are generally
available to lawyers practicing in the State of Ohio and are in a format that
make legal research reasonably feasible, and (v) Court Orders and agreements to
which the Bank or either of the Companies are party to or by which any of them
or their properties are bound would be enforced as written.
The opinions expressed herein are limited to matters of Federal law and the
laws of the State of Ohio, without giving effect to principles of conflicts of
laws. This Opinion Letter addresses only the specific legal issues addressed
herein and does not, by implication or otherwise, address any other legal
issues, including without limitation: federal securities and tax laws; state
securities, "blue-sky", or tax laws; the characterization of the transfer of the
Initial Financed Student Loans by the Bank and QSPE to KCRL and by KCRL to the
Trust as a sale of such Initial Financed Student Loans or a transfer of a
security interest therein, or the form, sufficiency or other legal requirements
for such sale or transfer of a security interest (including the attachment and
perfection thereof); laws, rules, and regulations of municipalities or other
political subdivisions of the State of Ohio; and federal and state laws (such as
ERISA and RICO) that in my reasonable judgment do not relate to the opinions
expressed herein.
This opinion is rendered solely to the addressees hereof, for their use in
connection with the transactions contemplated by the Underwriting Agreement and
Principal Documents and may not be relied upon for any other purpose or by any
other person.
Very truly yours,
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
General Counsel
APPENDIX A
This Appendix A is attached to, and shall be deemed a part of the Opinion
Letter of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, General Counsel of Key Bank USA, National
Association, to Deutsche Banc ▇▇▇▇. ▇▇▇▇▇, et al., dated September 14, 2001 (the
"Opinion Letter").
A. GENERAL QUALIFICATIONS. As used in the Opinion Letter, the term "General
Qualifications" shall mean and include, without limitation:
(1) the effect of bankruptcy, insolvency, reorganization, receivership,
moratorium, and similar laws affecting the rights and remedies of
creditors generally, including, without limitation, (a) the Federal
Bankruptcy Code; (b) all other Federal and state bankruptcy,
insolvency, reorganization, receivership, moratorium, arrangement, and
assignment for the benefit of creditors laws that affect the rights
and remedies of creditors generally or that have reference to or
affect generally only creditors of specific types of debtors, and
state laws of like character affecting generally only creditors of
financial institutions; (c) state fraudulent transfer and conveyance
laws; (d) judicially developed doctrines relevant to any of the
foregoing laws, such as substantive consolidation of entities;
(2) the effect of general principles of equity, whether applied by a court
of law or equity, including, without limitation, principles: (a)
governing the availability of specific performance, injunctive relief,
or other equitable remedies, including those principles which may
place the award of such remedies, subject to certain guidelines, in
the discretion of the court to which application for such relief is
made; (b) affording equitable defenses against a party seeking
enforcement; (c) requiring good faith and fair dealing in the
performance and enforcement of a contract by the party seeking its
enforcement; (d) requiring reasonableness in the performance and
enforcement of an agreement by the party seeking enforcement of the
contract; (e) requiring consideration of the materiality of a breach
and the consequences of the breach to the party seeking enforcement;
(f) requiring consideration of the impracticability or impossibility
of performance at the time of attempted enforcement; (g) affording
defenses based upon the unconscionability of the enforcing party's
conduct after the parties have entered into the contract; and
(3) the effect of other generally applicable rules of law that: (a) limit
or affect the enforcement of provisions of a contract that purport to
require waiver of the obligations of good faith, fair dealing,
diligence and reasonableness; (b) provide that forum selection clauses
in contracts are not necessarily binding on the court(s) in the forum
selected; (c) limit the availability of a remedy under certain
circumstances where another remedy has been elected; (d) limit the
right of a creditor to use force or cause a breach of the peace in
enforcing rights; (e) relate to the sale or disposition of collateral
or the requirements of a commercially reasonable sale; (f) limit the
enforceability of provisions releasing, exculpating or exempting a
party from, or requiring indemnification of a party for, liability for
its own action or inaction, to the extent the action or inaction
involves gross negligence, recklessness, willful misconduct or
unlawful conduct; (g) may, where less than all of a contract may be
unenforceable, limit the enforceability of the balance of the contract
to circumstances in which the unenforceable portion is not an
essential party of the agreed exchange; (h) govern and afford judicial
discretion regarding the determination of damages and entitlement to
attorneys' fees and other costs; (i) may, in the absence of a waiver
or consent, discharge a guarantor to the extent that (a) action by a
creditor impairs the value of collateral securing guaranteed debt to
the detriment of the guarantor, or (b) guaranteed debt is materially
modified; (j) may permit a party who has materially failed to render
or offer performance required by the contract to cure that failure
unless (a) permitting a cure would unreasonably hinder the aggrieved
party from making substitute arrangements for performance, or (b) it
was important in the circumstances to the aggrieved party that
performance occur by the date stated in the contract.
B. ACTUAL KNOWLEDGE. The phrases "actually known to me," my "actual knowledge"
or similar phrases shall mean the conscious awareness of facts or other
information by me or by any lawyer in the KeyCorp Law Group in Cleveland,
Ohio.
C. COURT ORDERS. The term "Court Orders" shall mean judicial administrative
orders, writs, judgments, and decrees that name the Bank or either of the
Companies, are specifically directed to them or their property, and are
issued by a court of competent jurisdiction.
EXHIBIT B
[Form of Opinion of ▇▇▇▇▇▇▇▇ ▇▇▇▇ LLP]
[SEE ATTACHED]
