EX1.1
B&W Draft
12/10/96
SIGNET STUDENT LOAN TRUST 1996-A
$[ ]
FLOATING RATE CLASS A-1 ASSET BACKED NOTES, AND
$[ ]
FLOATING RATE CLASS A-2 ASSET BACKED NOTES
NOTE UNDERWRITING AGREEMENT
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[ ], 1996
CS First Boston Corporation
As Representative of the
several Underwriters
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Dear Sirs:
1. Introductory. Signet Bank, a Virginia banking corporation
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("Signet" or the "Seller"), proposes to cause Signet Student Loan Trust 1996-A
(the "Trust") to issue and sell $[ ] principal amount of its Floating
Rate Class A-1 Asset Backed Notes and $[ ] principal amount of its
Floating Rate Class A-2 Asset Backed Notes (collectively, the "Notes") to the
underwriters named in Schedule I hereto (the "Underwriters") for whom you (the
"Representative") are acting as representative. The assets of the Trust
include, among other things, a pool of student loans (the "Initial Financed
Student Loans") and certain monies due thereunder on and after [ ],
1996 (the "Cutoff Date"). Such Initial Financed Student Loans will be sold to
the Eligible Lender Trustee (as defined below) on behalf of the Trust by the
Seller pursuant to a sale agreement, dated as of [ ], 1996 (the "Loan
Sale Agreement") among the Trust, the Seller and The First National Bank of
Chicago, a national banking association, as eligible lender trustee (the
"Eligible Lender Trustee"). Under certain circumstances after the Closing Date
(as defined below), the Eligible Lender Trustee, acting on behalf of the Trust,
may acquire additional student loans ("Additional Acquired Student Loans",
together with the Initial Financed Student Loans, the "Financed Student Loans").
The Financed Student Loans are to be serviced by Signet as master servicer (the
"Master Servicer") pursuant to a master servicing
agreement, dated as of [ ], 1996 (the "Master Servicing Agreement"),
among the Trust, the Master Servicer and the Eligible Lender Trustee. The Notes
will be issued pursuant to an Indenture to be dated as of [ ], 1996 (as
amended and supplemented from time to time, the "Indenture"), between the Trust
and The Bank of New York, a New York banking corporation, as indenture trustee
(the "Indenture Trustee"). The Certificates will be issued pursuant to a trust
agreement to be dated as of [ ], 1996 (the "Trust Agreement"), among
the Seller, as Depositor, Signet Student Loan Corporation, a Virginia
corporation (the "Company"), and the Eligible Lender Trustee. An individual
residing in Delaware will be appointed as a co-trustee under the Trust Agreement
pursuant to a co-trustee agreement, dated as of [ ], 1996 (the "Co-
Trustee Agreement"), between such individual and the Eligible Lender Trustee.
Simultaneously with the issuance and sale of the Notes as contemplated
herein, the Trust will issue $[ ] principal amount of its Floating Rate
Asset Backed Certificates (the "Certificates"). The Certificates will be sold
pursuant to an underwriting agreement dated the date hereof (the "Certificate
Underwriting Agreement") between the Seller and the Underwriters. The Notes and
the Certificates are hereinafter referred to collectively as the "Securities."
Capitalized terms used and not otherwise defined herein shall have the
meanings given to them in Appendix A hereto.
2. Representations and Warranties of the Seller. (a) The Seller
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represents and warrants to and agrees with the several Underwriters that:
(i) The Seller meets the requirements for use of Form S-3 under
the Securities Act of 1933, as amended (the "Act"), and has filed with the
Securities and Exchange Commission (the "Commission") a registration
statement (Registration No. 33-94846) on such Form, including a related
preliminary basic prospectus and a preliminary prospectus supplement, for
the registration under the Act of the offering and sale of the Securities.
The Seller may have filed one or more amendments thereto, each of which
amendments has previously been furnished to the Representative. The Seller
will next file with the Commission (i) prior to the effectiveness of such
registration statement, an amendment thereto (including the form of final
basic prospectus and the form of final prospectus supplement relating to
the Securities), (ii) after effectiveness of such registration statement, a
final basic prospectus and a final prospectus supplement relating to the
Securities in accordance with Rules 430A and 424(b)(1) or (4) under the
Act, or (iii) a final basic
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prospectus and a final prospectus supplement relating to the Securities in
accordance with Rules 415 and 424(b)(2) or (5).
In the case of clauses (ii) and (iii), the Seller has included in such
registration statement, as amended at the Effective Date, all information
(other than Rule 430A Information) required by the Act and the rules
thereunder to be included in the Prospectus with respect to the Notes and
the offering thereof. As filed, such amendment and form of final
prospectus supplement, or such final prospectus supplement, shall include
all Rule 430A Information, together with all other such required
information, with respect to the 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 basic prospectus and preliminary prospectus supplement,
if any, that have previously been furnished to the Representative) as the
Seller has advised the Representative, prior to the Execution Time, will be
included or made therein. If the Registration Statement contains the
undertaking specified by Regulation S-K Item 512(a), the Registration
Statement, at the Execution Time, meets the requirements set forth in Rule
415(a)(1)(x).
For purposes of this Agreement, "Effective Time" means the date and
time as of which such registration statement, or the most recent post-
effective amendment thereto, if any, was declared effective by the
Commission, and "Effective Date" means the date of the Effective Time.
"Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto. Such registration statement,
as amended at the Effective Time, including all information deemed to be a
part of such registration statement as of the Effective Time pursuant to
Rule 430A(b) under the Act, and including the exhibits thereto and any
material incorporated by reference therein, is hereinafter referred to as
the "Registration Statement". "Basic Prospectus" shall mean any prospectus
referred to above contained in the Registration Statement at the Effective
Date, including any Preliminary Prospectus Supplement. "Preliminary
Prospectus Supplement" shall mean the preliminary prospectus supplement to
the Basic Prospectus which describes the Notes and the offering thereof and
is used prior to filing of the Prospectus. "Prospectus" shall mean the
prospectus supplement relating to the Securities that is first filed
pursuant to Rule 424(b) after the Execution Time, together with the Basic
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Prospectus or, if no filing pursuant to Rule 424(b) is required, shall mean
the prospectus supplement relating to the Notes, including the Basic
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 Securities permitted to be omitted from the Registration
Statement when it becomes effective pursuant to Rule 430A. "Rule 415",
"Rule 424", "Rule 430A" and "Regulation S-K" refer to such rules or
regulations under the Act. Any reference herein to the Registration
Statement, a Preliminary Prospectus Supplement or the Prospectus shall be
deemed to refer to and include the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 which were filed under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), on or
before the Effective Date of the Registration Statement or the issue date
of the Basic Prospectus, such Preliminary Prospectus Supplement or the
Prospectus, as the case may be; and any reference herein to the terms
"amend", "amendment" or "supplement" with respect to the Registration
Statement, the Basic Prospectus, any Preliminary Prospectus Supplement or
the Prospectus shall be deemed to refer to and include the filing of any
document under the Exchange Act after the Effective Date of the
Registration Statement, or the issue date of the Basic Prospectus, to any
Preliminary Prospectus Supplement or the Prospectus, as the case may be,
deemed to be incorporated therein by reference.
(ii) On the Effective Date and on the date of this Agreement, the
Registration Statement did or will, and, when the Prospectus is first filed
(if required) in accordance with Rule 424(b) and on the Closing Date (as
defined below), the Prospectus (and any supplements thereto) will, comply
in all material respects with the applicable requirements of the Act, the
Exchange Act and the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"), and the respective rules and regulations of the Commission
thereunder (the "Rules and Regulations"); on the Effective Date, the
Registration Statement did not or will not contain any untrue statement of
a material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein not
misleading; and, on the Effective Date, the Prospectus (together with any
supplement thereto) will not, include any untrue statement of a material
fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that the Seller makes no
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representations or warranties as to the information contained in or omitted
from the Registration Statement or the
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Prospectus (or any supplement thereto) in reliance upon and in conformity
with information furnished in writing to the Seller by any Underwriter
through the Representative specifically for use in the Registration
Statement or the Prospectus (or any supplement thereto).
(iii) The Seller's representations and warranties in the Loan
Sale Agreement, the Administration Agreement and the Trust Agreement will
be true and correct in all material respects as of the Closing Date and
each such representation and warranty will be true and correct in all
material respects on each date thereafter if and to the extent that on such
date such representation and warranty is made again by the Seller pursuant
to the terms of the related agreement.
(iv) This Agreement has been duly authorized, executed and
delivered by the Seller. The execution, delivery and performance of this
Agreement and the issuance and sale of the 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 the Seller is a party or by which the
Seller is bound or to which any of the properties of the Seller is subject
which could reasonably be expected to have a material adverse effect on the
transactions contemplated herein. The Seller has full power (corporate and
other) and authority to cause the Trust to authorize, issue and sell the
Notes, all as contemplated by this Agreement.
(v) Other than as contemplated by this Agreement or as disclosed
in the Prospectus, there is no broker, finder or other party that is
entitled to receive from the Seller or any of its affiliates or an
underwriter any brokerage or finder's fee or other fee or commission as a
result of any of the transactions contemplated by this Agreement.
(vi) All legal or governmental proceedings, contracts or
documents of a character required to be described in the Registration
Statement or the Prospectus or to be filed as an exhibit to the
Registration Statement have been so described or filed as required.
(vii) The Seller's assignment and delivery of the Initial
Financed Student Loans to the Eligible Lender Trustee on behalf of the
Trust as of the Closing Date and of the Additional Acquired Student Loans
from time to time
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thereafter pursuant to the Loan Sale Agreement will vest in the Eligible
Lender Trustee on behalf of the Trust all the Seller's right, title and
interest therein, subject to no prior lien, mortgage, security interest,
pledge, adverse claim, charge or other encumbrance.
(viii) The Trust's assignment of the Financed Student Loans to
the Indenture Trustee pursuant to the Indenture will vest in the Indenture
Trustee, for the benefit of the Noteholders, a first priority perfected
security interest therein, subject to no prior lien, mortgage, security
interest, pledge, adverse claim, charge or other encumbrance.
(b) The Seller hereby agrees with the Underwriters that, for all
purposes of this Agreement, the only information furnished to the Seller by the
Underwriters through the Representative specifically for use in the Registration
Statement, the Prospectus, or any amendment or supplement thereto, or any
related preliminary prospectus, are the statements with respect to stabilization
on the second page of, and the statements under the caption "Underwriting" in,
the preliminary prospectus and the Prospectus.
3. Purchase, Sale and Delivery of the Notes. On the basis of the
----------------------------------------
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Seller agrees to cause the Trust to
sell to the Underwriters, and the Underwriters agree, severally and not jointly,
to purchase from the Trust, the respective principal amounts of the Class A-1
Notes set forth opposite the names of the Underwriters in Schedule I hereto at a
purchase price of [ ]% of the principal amount thereof and the respective
principal amounts of the Class A-2 Notes set forth opposite the names of the
Underwriters in Schedule I hereto at a purchase price of [ ]% of the principal
amount thereof.
The Seller 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 Seller by wire transfer or check in Federal (same
day) Funds, at the office of ▇▇▇▇▇ & ▇▇▇▇ llp, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, at 10:00 a.m., New York time, on [ ], 1996, or at
such other time not later than seven full business days thereafter as the
Representative and the Seller determine, such time being herein referred to as
the "Closing Date". The Notes to be so delivered will be initially represented
by one or more Notes 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
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Notes will be available only under the limited circumstances specified in the
Indenture.
4. Offering by the Underwriters. It is understood that, after the
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Registration Statement becomes effective, the several Underwriters propose to
offer the Notes for sale to the public (which may include selected dealers) as
set forth in the Prospectus.
5. Covenants of the Seller. The Seller covenants and agrees with the
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several Underwriters that:
(a) The Seller will use its best efforts to cause the Registration
Statement, and any amendment thereto, if not effective at the Execution Time, to
become effective. Prior to the termination of the offering of the Notes, the
Seller will not file any amendment of the Registration Statement or supplement
to the Prospectus unless the Seller has furnished the Representative a copy for
its review prior to filing and will not file any such proposed amendment or
supplement to which the Representative reasonably objects. Subject to the
foregoing sentence, if the Registration Statement has become or becomes
effective pursuant to Rule 430A, or filing of the Prospectus is otherwise
required under Rule 424(b), the Seller will file the Prospectus, properly
completed, and any supplement thereto, with the Commission pursuant to and in
accordance with the applicable paragraph of Rule 424(b) within the time period
prescribed and will provide evidence satisfactory to the Representative of such
timely filing.
(b) The Seller will advise the Representative promptly of any
proposal to amend or supplement the registration statement as filed or the
related prospectus or the Registration Statement or the Prospectus and will not
effect such amendment or supplementation without the consent of the
Representative prior to the Closing Date, and thereafter will not effect any
such amendment or supplementation to which the Representative reasonably
objects; the Seller will also advise the Representative promptly of any request
by the Commission for any amendment of or supplement to the Registration
Statement or the Prospectus or for any additional information; and the Seller
will also advise the Representative promptly of the effectiveness of the
Registration Statement and of any amendment or supplement to the Registration
Statement or the Prospectus and of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or the
institution or threat of any proceeding for that purpose and the Seller will use
its best efforts to prevent the issuance of any such stop order and to obtain as
soon as possible the lifting of any issued stop order.
(c) If, at any time when a prospectus relating to the Notes is
required to be delivered under the Act, any event occurs
7
as a result of which the Prospectus as then amended or supplemented would
contain an untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, or if it is necessary at any time to
amend the Registration Statement or supplement the Prospectus to comply with the
Act or the Exchange Act, the Seller promptly will prepare and file, or cause to
be prepared and filed, with the Commission an amendment or supplement which will
correct such statement or omission, or an amendment or supplement which will
effect such compliance. Neither the consent of the Representative to, nor the
delivery of the several Underwriters of, any such amendment or supplement shall
constitute a waiver of any of the conditions set forth in Section 6.
(d) As soon as practicable, but not later than the Availability Date
(as defined below), the Seller will cause the Trust to make generally available
to Noteholders an earnings statement of the Trust covering a period of at least
twelve months beginning after the Effective Date which will satisfy the
provisions of Section 11(a) of the Act and Rule 158 of the applicable Rules and
Regulations thereunder. For the purpose of the preceding sentence,
"Availability Date" means the 45th day after the end of the fourth fiscal
quarter following the fiscal quarter that includes the original effective date
of the Registration Statement, except that, if such fourth fiscal quarter is the
last quarter of the Trust's fiscal year, "Availability Date" means the 90th day
after the end of such fourth fiscal quarter.
(e) The Seller will furnish to the Representative copies of the
Registration Statement (two of which will be signed and will include all
exhibits), each related preliminary prospectus, the Prospectus and all
amendments and supplements to such documents, in each case as soon as available
and in such quantities as the Representative reasonably requests.
(f) The Seller will arrange for the qualification of the Notes for
sale under the laws of such states as the several Underwriters may require and
will continue such qualifications in effect so long as required for the
distribution.
(g) For a period from the date of this Agreement until the retirement
of the Notes, or until such time as the several Underwriters shall cease to
maintain a secondary market in the Notes, whichever occurs first, the Seller
will deliver to the Representative the annual statements of compliance and the
annual independent certified public accountants' reports furnished to the
Indenture Trustee or the Eligible Lender Trustee pursuant to the Master
Servicing Agreement, as soon as such statements and reports are furnished to the
Indenture Trustee or the Eligible Lender Trustee.
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(h) So long as any of the Notes are outstanding, the Seller will
furnish to the Representative (i) as soon as practicable after the end of the
fiscal year all documents required to be distributed to Noteholders or filed
with the Commission on behalf of the Trust pursuant to the Exchange Act, or any
order of the Commission thereunder and (ii) from time to time, any other
information concerning the Seller as the Representative may reasonably request.
(i) On or before the Closing Date, the Seller shall ▇▇▇▇ its
accounting and other records, if any, relating to the Initial Financed Student
Loans and shall cause the Master Servicer to ▇▇▇▇ the computer records of the
Master Servicer relating to the Initial Financed Student Loans to show the
absolute ownership by the Eligible Lender Trustee on behalf of the Trust of the
Initial Financed Student Loans, and from and after the Closing Date the Seller
will take, and cause the Master Servicer to take, such actions with regard to
any Additional Acquired Student Loans at the time of the conveyance thereof to
the Trust and neither the Seller nor the Master Servicer shall take any action
inconsistent with the ownership by the Eligible Lender Trustee on behalf of the
Trust of the Financed Student Loans, other than as permitted by the Loan Sale
Agreement or the Master Servicing Agreement.
(j) To the extent, if any, that the rating provided with respect to
the Notes by the rating agency or agencies that initially rate the Notes is
conditional upon the furnishing of documents or the taking of any other actions
by the Seller agreed upon on or prior to the Closing Date, the Seller shall
furnish or shall cause to be furnished such documents and take any such other
actions. A copy of any such document shall be provided to the Representative at
the time it is delivered to the rating agencies.
(k) For the period beginning on the date of this Agreement and ending
90 days after the Closing Date, none of the Seller and any trust originated,
directly or indirectly, by the Seller will, without the prior written consent of
the Representative, offer to sell or sell notes (other than the Notes)
collateralized by, or certificates (other than the Certificates) evidencing an
ownership interest in, student loans; provided, however, that this shall not be
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construed to prevent the sale of student loans by the Seller.
(l) The Seller will apply the net proceeds of the offering and the
sale of the Notes and the Certificates that it receives in the manner set forth
in the Prospectus under the caption "Use of Proceeds".
(m) The Seller will pay all expenses incident to the performance of
its obligations under this Agreement, including
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(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 the Seller's
counsel 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
and (viii) the fees and expenses, if any, incurred with respect to any filing
with the National Association of Securities Dealers, Inc.
6. Conditions of the Obligations of the Underwriters. The
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obligations of the several Underwriters to purchase and pay for the Notes will
be subject to the accuracy of the representations and warranties on the part of
the Seller herein, to the accuracy of the written statements of officers of the
Seller made pursuant to the provisions of this Section, to the performance by
the Seller of its obligations hereunder and to the following additional
conditions precedent:
(a) If the Effective Time is not prior to the execution and delivery
of this Agreement, the Effective Time shall have occurred not later than 6:00
p.m. New York City time on the date of this Agreement or such later time or date
as shall have been consented to by the Representative.
(b) If the Effective Time is prior to the execution and delivery of
this Agreement, the Prospectus and any supplements thereto shall have been filed
with the Commission in accordance with the Rules and Regulations and Section
5(a) hereof. Prior to the Closing Date, no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted or, to the knowledge of
the Seller or the Representative, shall be contemplated by the Commission.
(c) On or prior to the Closing Date, the Representative shall have
received a letter dated the Closing Date, in form and substance satisfactory to
the Representative and its counsel, from [ ] with respect to certain
agreed-upon procedures, substantially in the form of the drafts to which the
Representative has previously agreed and otherwise in form and substance
reasonably satisfactory to the Representative and its counsel.
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(d) Subsequent to the execution and delivery of this Agreement, there
shall not have occurred (i) any change, or any development involving a
prospective change, in or affecting particularly the business or properties of
the Trust, the Seller, the Master Servicer or the Company which, in the judgment
of the Representative, materially impairs the investment quality of the Notes or
makes it impractical or inadvisable to market the Notes; (ii) any downgrading in
the rating of any debt securities of the Seller or the Master Servicer by any
"nationally recognized statistical rating organization" (as defined for purposes
of Rule 436(g) under the Act), or any public announcement that any such
organization has under surveillance or review its rating of any debt securities
of the Seller or the Master Servicer (other than an announcement with positive
implications of a possible upgrading, and no implication of a possible
downgrading, of such rating); (iii) any suspension or limitation of trading in
securities generally on the New York Stock Exchange, or any setting of minimum
prices for trading on such exchange; (iv) any suspension of trading of any
securities of the Seller or the Master Servicer on any exchange or in the over-
the-counter market; (v) any banking moratorium declared by Federal or New York
authorities; or (vi) any outbreak or escalation of major hostilities in which
the United States is involved, any declaration of war by Congress, or any other
substantial national or international calamity or emergency if, in the judgment
of the Representative, the effect of any such outbreak, escalation, declaration,
calamity or emergency makes it impractical or inadvisable to proceed with
completion of the sale of and payment for the Notes.
(e) The Representative shall have received an opinion of [
], Esq., General Counsel of Signet Bank, as counsel for the Seller, dated the
Closing Date, in the form attached hereto as Exhibit A, or as is otherwise
satisfactory in form and substance to the Representative and its counsel.
(f) The Representative shall have received an opinion of McGuire,
Woods, Battle & ▇▇▇▇▇▇, L.L.P., counsel to the Seller and the Trust, dated the
Closing Date, in the form attached hereto as Exhibit B, or as is otherwise
satisfactory in form and substance to the Representative and its counsel.
(g) The Representative shall have received an opinion addressed to
the several Underwriters of McGuire, Woods, Battle & ▇▇▇▇▇▇, L.L.P., in its
capacity as counsel for the Seller and the Trust, dated the Closing Date, in
form and substance satisfactory to the Representative and its counsel, to the
effect that the statements in the Prospectus under the headings "Certain Federal
Income Tax Consequences", "Certain State Tax Consequences" and "ERISA
Considerations", to the extent that they constitute statements of matters of law
or legal conclusions with respect thereto, have been prepared or reviewed by
such counsel and
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accurately describe the material consequences to holders of the Notes under
Virginia law and ERISA.
(h) The Representative shall have received an opinion addressed to the
several Underwriters of McGuire, Woods, Battle & ▇▇▇▇▇▇, L.L.P., as counsel for
the Seller, the Company and the Trust, dated the Closing Date, in form and
substance satisfactory to the Representative and its counsel, concerning (i) the
true sale of the Financed Student Loans from the Seller to the Trust and (ii)
the nonconsolidation of the Company with the Seller and the Seller's other
affiliates in the event of a bankruptcy or insolvency of the Seller or the
Seller's other affiliates.
(i) The Representative shall have received an opinion of ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ & Finger, special Delaware counsel for the Trust, dated the Closing Date,
in form and substance satisfactory to the Representative and its counsel, to the
effect that:
(i) The Trust Agreement constitutes the valid and binding
obligation of the Eligible Lender Trustee, the Delaware Trustee, the
Depositor and the Company, enforceable against the Eligible Lender Trustee,
the Delaware Trustee, the Depositor and the Company, in accordance with its
terms subject to (i) applicable bankruptcy, insolvency, moratorium,
receivership, reorganization, fraudulent conveyance and similar laws
relating to and affecting the rights and remedies of creditors generally,
and (ii) principles of equity (regardless of whether considered and applied
in a proceeding in equity or at law).
(ii) The Trust has been duly formed and is validly existing as
a business trust under the Business Trust Statute. The Trust Agreement
authorizes the Trust to execute and deliver the Trust Agreement, the
Indenture, the Master Servicing Agreement, the Loan Sale Agreement and the
Administration Agreement to issue the Certificates and the Notes and to
grant the Trust Estate to the Indenture Trustee as security for the Notes.
(iii) Assuming that the Certificates have been duly executed
and issued by the Trust and duly authenticated by the Eligible Lender
Trustee in accordance with the Trust Agreement and delivered to and paid
for by the purchaser thereof pursuant to the Certificate Underwriting
Agreement, the Certificates have been validly issued and are entitled to
the benefits of the Trust Agreement.
(iv) Except for the timely filing in the future of continuation
statements with respect to the financing statements, no other filing is
required in the State of
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Delaware in order to make effective the lien of the Indenture. Insofar as
Article 9 of the Delaware Uniform Commercial Code, 6 Del. C. (S)9-101 et
--
seq. (the "UCC"), applies (without regard to conflict of laws principles)
---
and assuming that the security interest in that portion of the Collateral
that consists of general intangibles and accounts, as defined under the
UCC, has been duly created and has attached, the Indenture Trustee has a
perfected security interest in such general intangibles and accounts and
the proceeds thereof and, assuming that the UCC search accurately lists all
of the financing statements filed naming the Trust as debtor and describing
any portion of the Collateral consisting of such general intangibles and
accounts and the proceeds thereof, such security interest of the Indenture
Trustee will be prior to the security interest of all other creditors of
the Trust whose security interests are perfected solely by filing UCC
financing statements in the State of Delaware, excluding purchase money
security interests under (S)9-312 of the UCC and temporarily perfected
security interests in proceeds under (S) 9-306 of the UCC.
(v) Under (S)3805(b) of the Business Trust Statute, no
creditor of any Certificateholder shall have any right to obtain possession
of, or otherwise exercise legal or equitable remedies with respect to, the
property of the Trust except in accordance with the terms of the Trust
Agreement.
(vi) Under (S) 3805(c) of the Business Trust Statute, and
assuming that the Loan Sale Agreement conveys good title to the Initial
Financed Student Loans to the Trust as a true sale and not as a security
arrangement, the Trust rather than the Certificateholders is the owner of
the Initial Financed Student Loans.
(vii) The Delaware Trustee is not required to hold legal title
to the Trust Estate in order for the Trust to qualify as a business trust
under the Act.
(viii) The execution and delivery by the Eligible Lender
Trustee or the Delaware Trustee of the Trust Agreement and, on behalf of
the Trust, of the Trust Agreement, the Indenture, the Master Servicing
Agreement, the Loan Sale Agreement and the Administration Agreement do not
require any consent, approval or authorization of, or any registration of
filing with, any governmental authority of the State of Delaware, except
for the filing of the Certificate of Trust with the Secretary of State.
(ix) Neither the consummation by the Eligible Lender Trustee or
the Delaware Trustee of the transactions contemplated in the Trust
Agreement or, on behalf of the
13
Trust, the transactions contemplated in the Trust Agreement, the Indenture,
the Master Servicing Agreement, the Loan Sale Agreement and the
Administration Agreement nor the fulfillment of the terms thereof by the
Eligible Lender Trustee or the Delaware Trustee will conflict with or
result in a breach or violation of any law of the State of Delaware.
(j) The Representative shall have received an opinion of The Law
Department of The First National Bank of Chicago, counsel to the Eligible Lender
Trustee, dated the Closing Date and satisfactory in form and substance to the
Representative and its counsel, to the effect that:
(i) The Eligible Lender Trustee is a national banking
association duly organized and validly existing under the laws of the
United States.
(ii) The Eligible Lender Trustee has the full corporate trust
power to accept the office of eligible lender trustee under the Trust
Agreement and to enter into and perform its obligations under the Trust
Agreement, the Master Servicing Agreement, the Loan Sale Agreement and the
Co-Trustee Agreement and, on behalf of the Trust, under the Indenture, the
Master Servicing Agreement, the Loan Sale Agreement, the Administration
Agreement and the Guarantee Agreements.
(iii) The execution and delivery of the Trust Agreement, the
Master Servicing Agreement, the Loan Sale Agreement and the Co-Trustee
Agreement by the Eligible Lender Trustee and the Indenture, the Master
Servicing Agreement, the Loan Sale Agreement, the Administration Agreement
and the Guarantee Agreements by the Eligible Lender Trustee on behalf of
the Trust, and the performance by the Eligible Lender Trustee of its
obligations under the Trust Agreement, the Master Servicing Agreement, the
Loan Sale Agreement and the Co-Trustee Agreement, as well as the
performance by the Eligible Lender Trustee of its obligations on behalf of
the Trust under the Indenture, the Master Servicing Agreement, the Loan
Sale Agreement, the Administration Agreement and the Guarantee Agreements
have been duly authorized by all necessary action of the Eligible Lender
Trustee and each has been duly executed and delivered by the Eligible
Lender Trustee.
(iv) The Trust Agreement, the Master Servicing Agreement, the
Loan Sale Agreement and the Co-Trustee Agreement constitute valid and
binding obligations of the Eligible Lender Trustee enforceable against the
Eligible Lender Trustee in accordance with their terms,
14
and the Indenture, the Master Servicing Agreement, the Loan Sale Agreement,
the Administration Agreement and the Guarantee Agreements constitute the
valid and binding obligations of the Trust enforceable against the Trust in
accordance with their terms, except as the enforceability thereof may be
(a) limited by bankruptcy, insolvency, reorganization, moratorium,
liquidation or other similar laws affecting the rights of creditors
generally, and (b) subject to general principals of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at
law).
(v) The execution and delivery by the Eligible Lender Trustee
of the Trust Agreement, the Master Servicing Agreement, the Loan Sale
Agreement and the Co-Trustee Agreement and by the Eligible Lender Trustee
on behalf of the Trust of the Indenture, the Master Servicing Agreement,
the Loan Sale Agreement, the Administration Agreement and the Guarantee
Agreements do not require any consent, approval or authorization of, or any
registration or filing with, any applicable governmental authority which
has not been obtained or done.
(vi) Each of the Certificates has been duly executed and
delivered by the Eligible Lender Trustee, as eligible lender trustee and
authenticating agent. Each of the Notes has been duly executed and
delivered by the Eligible Lender Trustee on behalf of the Trust.
(vii) Neither the consummation by the Eligible Lender Trustee
of the transactions contemplated in the Trust Agreement, the Master
Servicing Agreement, the Loan Sale Agreement or the Co-Trustee Agreement,
the consummation by the Trust of the transactions contemplated in the
Indenture or the Administration Agreement nor the fulfillment of the terms
thereof by the Eligible Lender Trustee or the Trust, as the case may be,
will conflict with, result in a breach or violation of, or constitute a
default under any law or the Articles of Association, By-Laws or other
organizational documents of the Eligible Lender Trustee or the terms of any
indenture or other agreement or instrument known to such counsel and to
which the Eligible Lender Trustee or any of its subsidiaries is a party or
is bound or any judgment, order or decree known to us to be applicable to
the Eligible Lender Trustee or any of its subsidiaries, of any court,
regulatory body, administrative agency, governmental body or arbitrator
having jurisdiction over the Eligible Lender Trustee or any of its
subsidiaries.
15
(viii) There are no actions, suits or proceedings pending or,
to the best of such counsel's knowledge after due inquiry, threatened
against the Eligible Lender Trustee (as eligible lender trustee under the
Trust Agreement or in its individual capacity) before or by any
governmental authority that might materially and adversely affect the
performance by the Eligible Lender Trustee of its obligations under, or the
validity or enforceability of, the Trust Agreement, the Master Servicing
Agreement, the Loan Sale Agreement or the Co-Trustee Agreement.
(ix) The execution, delivery and performance by the Eligible
Lender Trustee of the Trust Agreement, the Master Servicing Agreement, the
Loan Sale Agreement and the Co-Trustee Agreement, and the execution,
delivery and performance by the Eligible Lender Trustee on behalf of the
Trust of the Indenture, the Master Servicing Agreement, the Loan Sale
Agreement, the Administration Agreement and any Guarantee Agreement will
not subject any of the property or assets of the Trust, or any portion
thereof, to any liens created by or arising under the Eligible Lender
Trustee that are unrelated to the transactions contemplated in such
agreements.
(k) 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 existing
under the laws of the State of New York.
(ii) The Indenture Trustee has the requisite power and authority to
execute, deliver and perform its obligations under the Indenture and the
Administration Agreement and has taken all necessary action to authorize
the execution, delivery and performance by it of the Indenture and the
Administration Agreement.
(iii) Each of the Indenture and the Administration Agreement has
been duly executed and delivered by the Indenture Trustee and constitutes a
legal, valid and binding obligation of the Trustee, enforceable against the
Indenture Trustee in accordance with its respective terms, 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
16
dealing (regardless of whether such enforceability is considered in a
proceeding in equity or at law).
(iv) The Notes have been duly authenticated by the Indenture
Trustee in accordance with the terms of the Indenture.
(l) The Representative shall have received an opinion of counsel
acceptable to it of each of [ , , ,
and , each dated the Closing Date, and satisfactory in form and
substance to the Representative and its counsel, to the effect that:
(i) The Guarantor has been duly incorporated and is validly
existing as a non-profit corporation in good standing under the laws of the
State of its incorporation with full power and authority (corporate and
other) to own its properties and conduct its business, as presently
conducted by it, and to enter into and perform its obligations under the
Guarantee Agreement (and the agreements with the Department under Section
428 of the Higher Education Act to the extent relevant to the Guarantor's
obligations under such Guarantee Agreement), and had at all relevant times,
and now has, the power, authority and legal right to guarantee the Financed
Student Loans covered by such Guarantee Agreement and to receive, subject
to compliance with all applicable conditions, restrictions and limitations
of the Higher Education Act and any rules, regulations and interpretations
thereunder, reinsurance payments from the Department with respect to claims
paid by it on such Financed Student Loans.
(ii) The Guarantor is duly qualified to do business and is in
good standing, and has obtained all necessary licenses and approvals in
each jurisdiction in which failure to qualify or to obtain such license or
approval would render the Guarantor's obligation under the Guarantee
Agreement to guarantee the Financed Student Loans covered thereby
unenforceable by or on behalf of the Trust.
(iii) The Guarantee Agreement (and the agreements with the
Department under Section 428 of the Higher Education Act to the extent
relevant to the Guarantor's obligations under such Guarantee Agreement)
have been duly authorized, executed and delivered by the Guarantor and are
the legal, valid and binding obligation of the Guarantor enforceable
against the Guarantor in accordance with their terms, except that (x) the
enforceability thereof may be subject to bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights and (y) the remedy of specific performance
and injunctive and other forms of equitable relief may be
17
subject to equitable defenses and to the discretion of the court before
which any proceeding therefor may be brought.
(iv) Neither the execution and delivery by the Guarantor of the
Guarantee Agreement, nor the consummation by the Guarantor of the
transactions contemplated therein nor the fulfillment of the terms thereof
by the Guarantor will conflict with, result in a breach, violation or
acceleration of, or constitute a default under, any terms or provision of
the charter or by-laws of the Guarantor or of any indenture or other
agreement or instrument to which the Guarantor is a party or by which the
Guarantor is bound, or result in a violation of or contravene the terms of
any statute, order or regulation applicable to the Guarantor of any court,
regulatory body, administrative agency or governmental body having
jurisdiction over the Guarantor.
(v) There are no actions, proceedings or investigations pending
or, to the best of such counsel's knowledge after due inquiry, threatened
against the Guarantor before or by any governmental authority that might
materially and adversely affect the performance by the Guarantor of its
obligations under, or the validity or enforceability of, the Guarantee
Agreement.
(vi) The Guarantor is a "guarantor" covered by the provisions of
Section 432(o) of the Higher Education Act.
(m) The Representative shall have received an opinion addressed to
the several Underwriters of ▇▇▇▇▇ & Wood llp, in its capacity as special counsel
to the several Underwriters, dated the Closing Date, with respect to the
validity of the Notes and the Certificates and such other related matters as the
Representative shall reasonably require and the Seller 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.
(n) The Representative shall have received an opinion of ▇▇▇▇,
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, special student loan counsel to the several Underwriters, or
in the case of (iii) below, special student loan counsel to the Seller and the
Eligible Lender Trustee, dated the Closing Date, and satisfactory in form and
substance to the Representative and its counsel, to the effect that:
(i) The Basic Documents, and the transactions contemplated by the
Basic Documents, conform in all material respects to the applicable
requirements of the Higher Education Act, and that, upon the due
authorization, execution and delivery of the Basic
18
Documents and the consummation of such transactions, the Financed Student
Loans, legal title to which will be held by the Eligible Lender Trustee on
behalf of the Trust, will qualify, subject to compliance with all
applicable origination and servicing requirements with respect thereto, to
receive all applicable federal assistance payments, including federal
reinsurance and federal interest subsidies and special allowance payments,
with respect thereto.
(ii) To the extent that the statements in the Prospectus purport
to summarize or describe provisions of the Higher Education Act, or
constitute statements of matters of law or legal conclusions with respect
to the Higher Education Act, such statements have been prepared or reviewed
by such counsel and accurately describe the material consequences to
holders of Certificates under the Higher Education Act.
(iii) Such counsel has examined the Registration Statement and
the Prospectus, and nothing has come to such counsel's attention that would
lead such counsel to believe that, solely with respect to the Higher
Education Act and the student loan business, the Registration Statement or
the Prospectus or any amendment or supplement thereto as of the respective
dates thereof or on the Closing Date contains an untrue statement of a
material fact or omits to state a material fact necessary in order to make
the statements therein not misleading.
(iv) Each of the Seller and the Eligible Lender Trustee is an
"eligible lender" as such term is defined in Section 435(d) of the Higher
Education Act for purposes of holding legal title to the Financed Student
Loans.
(v) [ ] is a private non-profit Family Federal Education Loan
Program ("FFELP") guaranty agency (a "Guaranty Agency") covered by the
provisions of Section 432(o) of the Higher Education Act. In the event that
the United States Secretary of Education (the "Secretary") determines that
a Guaranty Agency is unable to meet its insurance obligations under Title
IV-B of the Higher Education Act of 1965, as amended (the "Act"), the
Secretary is required by Section 432(o) of the Act to pay otherwise valid
insurance claims submitted directly to the Secretary by FFELP lenders on
loans insured by such Guaranty Agency in the full amount of the Guaranty
Agency's insurance obligation thereon and in accordance with insurance
requirements no more stringent than those of the Guaranty Agency.
19
(o) The Representative shall have received certificates dated the
Closing Date of any two of the Chairman of the Board, the President, any
Executive Vice President, Senior Vice President or Vice President, the
Treasurer, any Assistant Treasurer, the Secretary, the Assistant Secretary, the
principal financial officer or the principal accounting officer of each of the
Seller and the Master Servicer in which such officers shall state that, to the
best of their knowledge after reasonable investigation, (i) the representations
and warranties of the Seller or the Master Servicer, as the case may be,
contained in the Trust Agreement, the Loan Sale Agreement, the Administration
Agreement and the Master Servicing Agreement, as applicable, are true and
correct in all material respects, that each of the Seller and the Master
Servicer has complied with all agreements and satisfied all conditions on its
part to be performed or satisfied under such agreements at or prior to the
Closing Date, in the case of the certificate from the Seller only, that no stop
order suspending the effectiveness of the Registration Statement has been issued
and no proceedings for that purpose have been instituted or are contemplated by
the Commission, and (ii) since December 31, 1995, except as may be disclosed in
the Prospectus or in such certificate, no material adverse change, or any
development involving a prospective material adverse change, in or affecting
particularly the business or properties of the Trust, the Company, the Seller or
the Master Servicer, as applicable, has occurred.
(p) The Representative shall have received evidence satisfactory to it
that, on or before the Closing Date, UCC-1 financing statements have been or are
being filed in the office of the Secretary of State of the States of Delaware
and Illinois and the Commonwealth of Virginia reflecting the transfer of the
interest of the Seller in the Financed Student Loans to the Eligible Lender
Trustee on behalf of the Trust and the proceeds thereof to the Trust and the
grant of the security interest by the Trust in the Financed Student Loans and
the proceeds thereof to the Indenture Trustee.
(q) The Representative shall have received a certificate, dated the
Closing Date, from a responsible officer acceptable to it of each Guarantor, to
the effect that such officer has reviewed the Prospectus Supplement and that the
information therein regarding the Guarantor is fair and accurate in all material
respects.
(r) Each of the Class A-1 Notes and the Class A-2 Notes shall be rated
"AAA" by Fitch Investors Service, L.P., ▇▇▇▇▇'▇ Investors Service, Inc. and
Standard & Poor's Ratings Services, and no rating agency shall have placed
either of the Class A-1 Notes or the Class A-2 Notes under surveillance or
review with possible negative implications.
20
(s) The issuance of the Certificates and 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 the Seller or any of its
affiliates.
(t) On the Closing Date, $[ ] aggregate principal amount of
the Certificates shall have been issued and sold.
The Seller will provide or cause to be provided to the Representative
such conformed copies of such of the foregoing opinions, certificates, letters
and documents as the Representative reasonably requests.
7. Indemnification and Contribution. (a) The Seller will
--------------------------------
indemnify and hold each Underwriter harmless against any losses, claims, damages
or liabilities to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the Registration Statement,
the preliminary Basic Prospectus, Preliminary Prospectus Supplement (if any),
the Basic Prospectus, or the Prospectus or any amendment or supplement thereto,
or arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse each Underwriter for any
legal or other expenses reasonably incurred by such Underwriter in connection
with investigating or defending any such loss, claim, damage, liability or
action as such expenses are incurred; provided, however, that the Seller will
-------- -------
not be liable in any such case to the extent that any such loss, claim, damage
or liability arises out of or is based upon an untrue statement or alleged
untrue statement in or omission or alleged omission from any of such documents
in reliance upon and in conformity with written information furnished to the
Seller by any Underwriter specifically for use therein.
(b) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Seller against any losses, claims, damages or liabilities
to which the Seller may become subject, under the Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of any material fact contained in the Registration Statement, the preliminary
Basic Prospectus, Preliminary Prospectus Supplement (if any), Basic Prospectus,
or the Prospectus or any amendment or supplement thereto or arise out of or are
based upon the omission or the alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, in each
21
case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information relating to such Underwriter and
furnished to the Seller by such Underwriter through the Representative
specifically for use therein, and will reimburse any legal or other expenses
reasonably incurred by the Seller in connection with investigating or defending
any such loss, claim, damage, liability or action as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under this Section
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
subsection (a) or (b) above, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party otherwise than
under subsection (a) or (b) above. In case any such action is brought against
any indemnified party and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein and, to
the extent that it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party), and after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof and approval by the indemnified party of the counsel appointed
by the indemnifying party, the indemnifying party will not be liable to such
indemnified party under this Section for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation. In no event shall the
indemnifying party be liable for fees and expenses for more than one counsel
separate from their own counsel for all indemnified parties in connection with
any one action or related actions in the same jurisdiction arising out of the
same general allegations or circumstances unless any such indemnified party
shall have been advised by such counsel that there may be one or more legal
defenses available to it which are different from or additional to or in
conflict with those available to the other indemnified parties and in the
reasonable judgment of such counsel it is advisable for such indemnified party
to employ separate counsel. An indemnifying party will not, without the prior
written consent of the indemnified party, settle or compromise or consent to the
entry of any judgment with respect to any pending or threatened claim, action,
suit or proceeding in respect of which indemnification or contribution may be
sought hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
includes
22
an unconditional release of each indemnified party from all liability arising
out of such claim, action, suit or proceeding.
(d) If the indemnification provided for in this Section is unavailable
or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnifying party as a result of the losses, claims, damages or
liabilities referred to in subsection (a) or (b) above (i) in such proportion as
is appropriate to reflect the relative benefits received by the Seller on the
one hand and the Underwriters on the other from the offering of the 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 Seller on the one hand and the Underwriters on the other in connection with
the statements or omissions which resulted in such losses, claims, damages or
liabilities as well as any other relevant equitable considerations. The
relative benefits received by the Seller on the one hand and the Underwriters on
the other shall be deemed to be in the same proportion as the total net proceeds
from the offering (before deducting expenses) of the Notes received by the
Seller bear to the total underwriting discounts and commissions applicable to
the Notes received by the Underwriters. The relative fault shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Seller or by the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such untrue statement or omission. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities referred to in the first sentence of this
subsection (d) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any action or claim which is the subject of this subsection (d).
Notwithstanding the provisions of this subsection (d), no Underwriter shall be
required to contribute any amount in excess of the amount by which the
underwriting discount or commission applicable to the Notes exceeds the amount
of any damages which such Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
(e) The obligations of the Seller under this Section shall be in
addition to any liability which the Seller may otherwise have and shall extend,
upon the same terms and
23
conditions, to each person, if any, who controls any Underwriter within the
meaning of the Act; and the obligations of the Underwriters under this Section
shall be in addition to any liability which the respective Underwriters may
otherwise have and shall extend, upon the same terms and conditions, to each
director of the Seller, to each officer of the Seller who has signed the
Registration Statement and to each person, if any, who controls the Seller
within the meaning of the Act.
8. Survival of Representations and Obligations. The respective
-------------------------------------------
indemnities, agreements, representations, warranties and other statements of the
Seller or its officers and of the several Underwriters set forth in or made
pursuant to this Agreement or contained in certificates of officers of the
Seller submitted pursuant hereto shall remain operative and in full force and
effect, regardless of any investigation or statement as to the results thereof,
made by or on behalf of any Underwriter, the Seller or any of their respective
representatives, officers or directors or any controlling person, and will
survive delivery of and payment for the Notes. If for any reason the purchase
of the Notes by the Underwriters is not consummated, the Seller shall remain
responsible for the expenses to be paid or reimbursed by the Seller pursuant to
Section 5 and the respective obligations of the Seller and the Underwriters
pursuant to Section 7 shall remain in effect. If for any reason the purchase of
the Notes by the Underwriters is not consummated (other than because of a
failure to satisfy the conditions set forth in items (iii), (v) and (vi) of
Section 6(d)), the Seller will reimburse the Underwriters for all out-of-pocket
expenses (including fees and disbursements of counsel) reasonably incurred by
them in connection with the offering of the Notes.
9. Notices. All communications hereunder will be in writing
-------
and, if sent to the Underwriters, will be mailed, delivered or telegraphed and
confirmed to the Representative at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇: Investment Banking--Transactions Advisory Group; if sent to the
Seller, will be mailed, delivered or telegraphed, and confirmed to it at Signet
Bank, ▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Treasurer;
provided, however, that any notice to an Underwriter pursuant to Section 7 will
-------- -------
be mailed, delivered or telegraphed and confirmed to such Underwriter. Any such
notice will take effect at the time of receipt.
10. Successors. This Agreement will inure to the benefit of and
----------
be binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 7, and no
other person will have any right or obligations hereunder.
24
11. Representation of Underwriters. The Representative shall act for
------------------------------
the several Underwriters in connection with this financing, and any action taken
by the Representative will be binding upon all the Underwriters.
12. Counterparts. This Agreement may be executed in any number
------------
of counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
13. Applicable Law. This Agreement will be governed by, and
--------------
construed in accordance with, the laws of the State of New York.
25
If the foregoing is in accordance with the Representative's
understanding of our agreement, kindly sign and return to us one of the
counterparts hereof, whereupon it will become a binding agreement between the
Seller and the several Underwriters in accordance with its terms.
Very truly yours,
SIGNET BANK
By: ___________________________
Name:
Title:
The foregoing Note
Underwriting Agreement is
hereby confirmed and
accepted as of the date
first written above.
CS FIRST BOSTON CORPORATION
By:_______________________
Name:
Title:
Acting on behalf of itself and as
Representative of the several Underwriters
26
SCHEDULE I
Principal Amount of Principal Amount of
Underwriter Class A-1 Notes Class A-2 Notes
---------------------------- ----------------------- -----------------------
CS First Boston Corporation $ $
------------------- -------------------
[other Underwriters] $ $
------------------- -------------------
Total $ $
------------------- -------------------
27
APPENDIX A
[See Appendix A to Administration Agreement]
28
EXHIBIT A
[Letterhead of Signet Bank]
[ ], 1996
CS First ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
[other Underwriters]
Re: Floating Rate Asset Backed Notes
and Floating Rate Asset Backed Certificates
-------------------------------------------
Gentlemen:
I am the General Counsel of Signet Bank (the "Seller") and have acted as
counsel to the Seller in connection with the issuance and sale by Signet Student
Loan Trust 1996-A (the "Trust") of (i) $[ ] principal amount of its
Floating Rate Class A-1 Asset Backed Notes and $[ ] principal amount of
its Floating Rate Class A-2 Asset Backed Notes (collectively, the "Notes")
pursuant to the Note Underwriting Agreement dated [ ], 1996 between the
Seller and the Underwriters named therein (the "Note Underwriting Agreement")
and (ii) Floating Rate Asset Backed Certificates in the aggregate principal
amount of $[ ] (the "Certificates") pursuant to the Certificate
Underwriting Agreement dated [ ], 1996 between the Seller and the
Underwriters named therein (the "Certificate Underwriting Agreement" and,
together with the Note Underwriting Agreement, the "Underwriting Agreements").
Except as otherwise indicated herein, capitalized terms are defined as set forth
in the Underwriting Agreements. As used herein, (i) "Principal Documents" shall
mean, collectively, the Trust Agreement, the Loan Sale Agreement, the
Administration Agreement and the Master Servicing Agreement.
Based upon and subject to the limitations and qualifications set forth
below, I am of the opinion that:
A-1
(1) The Seller has been duly organized and is validly existing as a
banking corporation in good standing under the laws of the Commonwealth of
Virginia, with full power (corporate and other) and authority to own its
properties and to conduct its business as now conducted by it and to enter into
and perform its obligations under the Underwriting Agreements and the Principal
Documents, and had, at all relevant times and now has the corporate power and
authority, and legal right, to acquire, own, sell and service the Initial
Financed Student Loans and any Additional Acquired Student Loans consistent with
all applicable conditions, restrictions and limitations of the Higher Education
Act.
(2) The Seller has executed and delivered the written order to the
Eligible Lender Trustee to authenticate the Certificates and such action has
been duly authorized by the Seller. When the Certificates have been duly
executed, authenticated, and delivered in accordance with the Trust Agreement
and the Certificates have been delivered and paid for pursuant to the
Certificate Underwriting Agreement, the Certificates will be validly issued and
entitled to the benefits of the Trust Agreement, subject, as to the
enforceability thereof, to bankruptcy, reorganization, insolvency, moratorium
and other laws affecting creditors' rights generally and by the application of
general principles of equity.
(3) The Seller has executed and delivered the written order to the
Eligible Lender Trustee to execute and deliver the Issuer Order to the Indenture
Trustee and such action has been duly authorized by the Seller. When the Notes
have been duly executed, delivered, and authenticated in accordance with the
Indenture and delivered and paid for pursuant to the Note Underwriting
Agreement, the Notes will be validly issued and entitled to the benefits of the
Indenture, subject, as to the enforceability thereof, to bankruptcy,
reorganization, insolvency, moratorium and other laws affecting creditors'
rights generally and by the application of general principles of equity.
(4) The Seller has duly authorized, executed, and delivered the
Underwriting Agreements and the Principal Documents and such Principal Documents
are legal, valid and binding obligations of the Seller, enforceable against the
Seller, subject, as to the enforceability thereof, to bankruptcy,
reorganization, insolvency, moratorium and other laws affecting creditors'
rights generally and to the application of general principles of equity.
(5) Neither the transfer of the Initial Financed Student Loans or the
Additional Acquired Student Loans by the Seller to the Eligible Lender Trustee
on behalf of the Trust, nor the assignment by the Seller of the Trust Estate to
the Trust, nor the grant by the Trust of the security interest in the Collateral
to the Indenture Trustee pursuant to the Indenture, nor the
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execution and delivery by the Seller of the Underwriting Agreements and the
Principal Documents, nor the consummation of the transactions contemplated by
the Underwriting Agreements or the Principal Documents nor the performance by
the Seller of its obligations thereunder will (i) violate the Articles of
Incorporation and by-laws, as amended, of the Seller, (ii) breach, or result in
a default under or acceleration of, any existing obligation of the Seller in any
indenture, agreement, or instrument known to me, after due inquiry and
reasonable investigation, which breach or default would reasonably be expected
to have a material adverse effect on the condition of the Seller, financial or
otherwise, or adversely affect the transactions contemplated by the Principal
Documents, (iii) violate or contravene the terms of any court order, or (iv)
violate applicable provisions of statutory law or regulation.
(6) There are no actions, proceedings or investigations pending against
the Seller or, to my knowledge, threatened against the Seller before any court,
administrative agency, or tribunal (i) asserting the invalidity of the Trust or
any of the Underwriting Agreements or Principal Documents, (ii) seeking to
prevent the consummation of any of the transactions contemplated by any of the
Underwriting Agreements or the Principal Documents or the execution and delivery
thereof, or (iii) that could reasonably be expected to materially and adversely
affect the enforceability of the Underwriting Agreements or Principal Documents
against the Seller or the ability of the Seller to perform its obligations
thereunder.
(7) No consent, approval, authorization, or order of, or filing with, any
court or governmental agency or body is required of the Seller for the
consummation of the transactions contemplated in the Underwriting Agreements or
Principal Documents, except such consents, approvals, authorizations, or orders
as have been obtained or such filings as have been made.
(8) Nothing has come to our attention that would lead us to believe that
the representations and warranties of the Seller contained in the Principal
Documents are other than as stated therein.
(9) The Company has been duly organized and is validly existing as a
corporation in good standing under the laws of the Commonwealth of Virginia,
with full power (corporate and other) and authority to own its properties and to
conduct its business as now conducted by it and to enter into and perform its
obligations under the Trust Agreement.
(10) The Company has duly authorized, executed, and delivered the Trust
Agreement and the Trust Agreement is a legal, valid and binding obligation of
the Company, enforceable against
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the Company, subject, as to the enforceability thereof, to bankruptcy,
reorganization, insolvency, moratorium and other laws affecting creditors'
rights generally and by the application of general principles of equity.
(11) Neither the execution and delivery by the Company of the Trust
Agreement, nor the consummation of the transactions contemplated thereby nor the
performance by the Company of its obligations thereunder will (i) violate the
Articles of Incorporation and by-laws, as amended, of the Company, (ii) breach,
or result in a default under or acceleration of, any existing obligation of the
Company in any indenture, agreement, or instrument known to me, after due
inquiry and reasonable investigation, which breach or default would reasonably
be expected to have a material adverse effect on the condition of the Company,
financial or otherwise, or adversely affect the transactions contemplated by the
Principal Documents, (iii) violate or contravene the terms of any court order,
or (iv) violate applicable provisions of statutory law or regulation.
(12) There are no actions, proceedings or investigations pending against
the Company or, to my knowledge, threatened against the Company before any
court, administrative agency, or tribunal (i) asserting the invalidity of the
Trust Agreement or any of the other Principal Documents, (ii) seeking to prevent
the consummation of any of the transactions contemplated by any of the
Underwriting Agreements or the Principal Documents or the execution and delivery
thereof, or (iii) that could reasonably be expected to materially and adversely
affect the enforceability of the Trust Agreement against the Company or the
ability of the Company to perform its obligations thereunder.
(13) No consent, approval, authorization, or order of, or filing with, any
court or governmental agency or body is required of the Company for the
consummation of the transactions contemplated in the Trust Agreement, except
such consents, approvals, authorizations, or orders as have been obtained or
such filings as have been made.
(14) There are no legal or governmental proceedings pending or threatened
against the Seller, the Company or the Master Servicer that are required to be
disclosed in the Registration Statement, other than those disclosed therein.
(15) There are no contracts, indentures, mortgages, loan agreements,
notes, leases, or other instruments to which the Seller, the Company or the
Master Servicer is a party that are required to be described or referred to in
the Registration Statement or to be filed as exhibits thereto other than those
described or referred to or filed or incorporated by reference as exhibits
thereto.
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For purposes of this opinion, I have assumed that (i) the Underwriting
Agreements and the Principal Documents have been duly executed and delivered by
all parties thereto (other than the Seller and the Company) and are valid and
binding upon and enforceable against such parties, subject, as to the
enforceability thereof, to bankruptcy, reorganization, insolvency, moratorium
and other laws affecting creditors' rights generally and by the application of
general principles of equity.
The opinions expressed herein are limited to matters of Federal law and the
laws of the Commonwealth of Virginia, without giving effect to principles of
conflicts of laws.
This opinion is rendered solely to the addressee hereof, for its use in
connection with the transactions contemplated by the Underwriting Agreements and
Principal Documents and may not be relied upon for any other purpose or by any
other person.
Very truly yours,
-----------------------------
[ ]
General Counsel
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EXHIBIT B
[Letterhead of McGuire, Woods, Battle & ▇▇▇▇▇▇, L.L.P.]
[ ], 1996
CS First ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
[other Underwriters]
Re: Floating Rate Asset Backed Notes
and Floating Rate Asset Backed
Certificates
---------------------------------
Gentlemen:
We have acted as counsel to Signet Bank (the "Seller") and Signet Student
Loan Trust 1996-A (the "Trust") in connection with the issuance by the Trust of
the Floating Rate Class A-1 Asset Backed Notes in the aggregate principal amount
of $_______ and the Floating Rate Class A-2 Asset Backed Notes in the aggregate
principal amount of $________ (collectively, the "Notes") and the Floating Rate
Asset Backed Certificates in the aggregate principal amount of $____________.
This opinion letter is furnished to you pursuant to Section 6(f) of the Note
Underwriting Agreement (the "Note Underwriting Agreement") dated [ ],
1996 between the Seller and the Underwriters named therein and Section 6(f) of
the Certificate Underwriting Agreement (the "Certificate Underwriting
Agreement") dated [ ], 1996 between the Seller and the Underwriters
named therein. Except as otherwise indicated herein, capitalized terms used in
this opinion letter are defined as set forth in the Underwriting Agreements.
We have examined such documents, records and matters of law as we have
deemed necessary for purposes of this opinion letter, and based thereupon and
subject to the foregoing, we are of the opinion that:
(1) The Indenture creates a valid security interest in the Financed
Student Loans, including all moneys paid thereunder on or after the Cutoff
Date, in favor of the Indenture Trustee, as trustee for the benefit of the
Noteholders, that has been duly perfected by the filing of
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financing statements executed by the Eligible Lender Trustee in the offices
indicated in Schedule __ hereto, provided, that, this opinion does not in
any way derogate the conclusion expressed in paragraph ___ hereto [true
sale paragraph]. The filing of such financing statements has perfected a
first priority security interest in such Student Loans, including all
moneys paid thereunder, except for Liens the priority of which is
determined under the provisions of applicable law without regard to the
filing of record of a financing statement in the offices listed on Schedule
__ hereto or Liens the priority of which does require such a filing, but,
upon such filing, may relate back to a date prior to the date on which the
security interest was perfected. No filings or other actions, other than
the filing of appropriate UCC continuation statements, are necessary to
maintain the perfection and priority of such security interest. We call
your attention to the fact that unless appropriate financing statements are
timely filed in the appropriate offices, perfection of the security
interest in the Financed Student Loans, including all moneys paid
thereunder, will be terminated if the Trust hereafter changes its name,
identity or corporate structure so that the financing statements filed in
the offices indicated on Schedule __ hereto become seriously misleading.
(2) A security interest in the Financed Student Loans may, pursuant
to the provisions of 20 U.S.C. (S) 1087-2(d)(3), be perfected in the manner
provided by the UCC for perfection of a security interest in accounts.
(3) The Seller is not, and will not as a result of the offer and
sale of the Notes and Certificates as contemplated in the Prospectus and
the Note Underwriting Agreement and the Certificate Underwriting Agreement
become, an "investment company" as defined in the Investment Company Act or
a company "controlled by" an "investment company" within the meaning of the
Investment Company Act.
(4) All actions required to be taken and all filings required to be
made by the Seller or the Trust under the Act and the Exchange Act prior to
the sale of the Notes and the Certificates have been duly taken or made.
(5) The Trust Agreement need not be qualified under the Trust
Indenture Act of 1939, and the Trust is not required to register under the
Investment Company Act.
(6) The Indenture has been duly qualified under the Trust Indenture
Act.
(7) The Trust has been duly formed, is validly existing and is in
good standing under the laws of the State
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of Delaware, with full power and authority to own its assets and conduct
its business as described in the Prospectus.
(8) The Trust has duly authorized the Indenture, the Loan Sale
Agreement, the Master Servicing Agreement and the Administration Agreement,
and, when duly executed and delivered by the other parties thereto, they
will be valid and binding obligations of the Trust, enforceable against the
Trust in accordance with their terms, subject, as to the enforceability
thereof, to bankruptcy, reorganization, insolvency, moratorium and other
laws affecting creditors' rights generally and by the application of
general principles of equity.
(9) The Registration Statement has become effective under the Act;
any required filing of the Prospectus (and any Supplement thereto) pursuant
to Rule 424(b) promulgated under the Act has been made in the manner and
within the time period required under such rule; no stop order suspending
the effectiveness of the Registration Statement has been issued and, to our
knowledge, no proceedings for that purpose are pending or threatened by the
Commission.
(10) The Basic Documents, and the transactions contemplated by the
Basic Documents, conform in all material respects to the applicable
requirements of the Higher Education Act, and, upon the due authorization,
execution and delivery of the Basic Documents and the consummation of such
transactions, the Financed Student Loans, legal title to which will be held
by the Eligible Lender Trustee on behalf of the Trust, will qualify,
subject to compliance with all applicable origination and servicing
requirements with respect thereto, to receive all applicable federal
assistance payments, including federal reinsurance and federal interest
subsidies and special allowance payments, with respect thereto.
(11) We have examined the Registration Statement and the Prospectus
(and any Supplement thereto), and nothing has come to our attention that
would lead us to believe that, solely with respect to the Higher Education
Act and the student loan business, the Registration Statement or the
Prospectus or any amendment or supplement thereto as of the respective
dates thereof or on the Closing Date contains an untrue statement of a
material fact or omits to state a material fact necessary in order to make
the statements therein not misleading.
(12) The Eligible Lender Trustee is an "eligible lender" as such
term is defined in Section 435(d) of the
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Higher Education Act for purposes of holding legal title to the Financed
Student Loans.
(13) The statements contained in the Prospectus under the headings
"Risk Factors -- Certain Legal Aspects" and "Certain Legal Aspects of the
Student Loans", to the extent that they describe legal matters, present
fair summaries of such legal matters.
(14) The statements contained in the Prospectus under the captions
"Description of the Securities", "Description of the Transfer and Servicing
Agreements", "Description of the Notes" and "Description of the
Certificates", insofar as such statements purport to summarize the
provisions of the Certificates, the Notes, the Indenture, the
Administration Agreement, the Loan Sale Agreement, the Master Servicing
Agreement and the Trust Agreement, present fair summaries of such
provisions.
We have participated in the preparation of the Registration Statement and
the Prospectus (and any supplement thereto). From time to time we have had
discussions with the officers and employees of the Seller and your employees and
counsel concerning the information contained in the Registration Statement and
the Prospectus (and any supplement thereto). Based thereupon we are of the
opinion that (a) the Registration Statement (except for the financial
statements, financial schedules and other numerical, financial and statistical
information contained therein and the Form T-1 included therein, as to all of
which we express no view) at the time the Registration Statement became
effective under the Act complied as to form in all material respects with the
Act and the Trust Indenture and the rules and regulations thereunder and (b) the
Prospectus (and any supplement thereto) (except for the financial statements,
financial schedules and other numerical, financial and statistical information
contained therein, as to all of which we express no view) as of its date
complied as to form with the Act and the rules and regulations thereunder.
Based upon the participation and discussions described above, no facts have come
to our attention to cause us to believe that (a) the Registration Statement
(except for the financial statements, financial schedules and other numerical,
financial and statistical information contained therein, as to which we express
no view) at the time the Registration Statement became effective under the Act
contained any untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading or (b) the Prospectus (and any Supplement thereto) (except for
the financial statements, financial schedules and other numerical, financial and
statistical information contained therein, as to all of which we express no
view) as of its date or the date hereof contained or contains any untrue
statement of a material
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fact or omitted or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
[McGuire, Woods, Battle & ▇▇▇▇▇▇, L.L.P. will rely on the opinion of ▇▇▇▇▇
& ▇▇▇▇ LLP with respect to certain matters of New York law and on ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ & Finger with respect to certain matters of Delaware law.]
Very truly yours,
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