EXECUTION COPY
KEYCORP STUDENT LOAN TRUST 1999-B
$65,000,000
FLOATING RATE ASSET BACKED CERTIFICATES
KEY BANK USA, NATIONAL ASSOCIATION
(SELLER)
CERTIFICATE UNDERWRITING AGREEMENT
September 30, 1999
Credit Suisse First Boston Corporation
As Representative of the
several Underwriters
11 Madison Avenue
New York, N.Y. 10010
Dear Sirs:
1. INTRODUCTORY. Key Bank USA, National Association, a national
banking association ("KBUSA"), proposes to cause KeyCorp Student Loan Trust
1999-B (the "Trust") to issue and sell $65,000,000 principal amount of its
Floating Rate Asset Backed Certificates (the "Certificates") to the underwriters
named in Schedule I hereto (the "Underwriters"), for whom you (the
"Representative") are acting as representative. The Trust was formed, and the
Certificates issued, pursuant to the Trust Agreement, dated as of September 1,
1999, as amended and restated by the Amended and Restated Trust Agreement, dated
as of September 1, 1999 (as further amended and supplemented from time to time,
collectively, the "Trust Agreement") between KBUSA, as depositor and Bank One,
National Association, as Eligible Lender Trustee (the "Eligible Lender
Trustee"). The assets of the Trust include, among other things, two pools of
graduate and undergraduate student loans (collectively, the "Initial Financed
Student Loans") and certain monies due thereunder on and after September 1, 1999
with respect to certain of the Initial Financed Student Loans, and September 27,
1999, with respect to certain other Initial Financed Student Loans
(collectively, the "Cutoff Date"). Such Initial Financed Student Loans were sold
to the Eligible Lender Trustee on behalf of the Trust by the Seller pursuant to
the Sale and Servicing Agreement, dated as of September 1, 1999 (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"), KBUSA, as seller (in such capacity, the "Seller"), and
KBUSA as administrator (in such capacity, the "Administrator"). The Master
Servicer has also entered into two 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, "Sub-Servicer") and Great Lakes Educational
Loan Services, Inc., a Wisconsin corporation ("Great Lakes" or a
"Sub-Servicer"). After the Closing Date (as defined below), the Eligible Lender
Trustee, acting on behalf of the Trust, will acquire certain additional student
loans identified in the Sale and Servicing Agreement on or prior to December 24,
1999 (the "Subsequent Pool Student Loans") and on or prior to the end of the
Funding Period (the "Other Subsequent Student Loans"; and together with the
Subsequent Pool Student Loans and 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, 1999 (as amended and
supplemented from time to time, the "Administration Agreement"), among the
Indenture Trustee, the Trust and the Administrator. The Trust will also be a
party to that certain cap agreement (the "Cap Agreement") between the Trust and
KBUSA, as cap provider (in such capacity, the "Cap Provider"), whereunder the
Certificateholders will be entitled, subject to the limitations of the Cap
Agreement, to receive payments from the Cap Provider in the amount of any
Certificateholders' Interest Index Carryover for the Certificates 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. The Sale and Servicing Agreement, the Indenture (as defined below), the
Trust Agreement, the Administration Agreement and the Cap Agreement are referred
to herein as the "Basic Documents."
Simultaneously with the issuance and sale of the Certificates as
contemplated herein, pursuant to the Indenture (the "Indenture"), dated as of
September 1, 1999, between the Trust and Bankers Trust Company, as indenture
trustee (the "Indenture Trustee"), the Trust will issue $280,000,000 principal
amount of its Floating Rate Class A-1 Asset Backed Notes (the "Class A-1
Notes"), $625,000,000 principal amount of its Floating Rate Class A-2 Asset
Backed Notes (the "Class A-2 Notes" and together with the Class A-1 Notes, the
"Class A Notes"), and $30,000,000 principal amount of its Floating Rate Class M
Asset Backed Notes (the "Class M Notes" and, with the Class A Notes, the
"Notes"). The Notes will be sold pursuant to an underwriting agreement dated the
date hereof (the "Note Underwriting Agreement") between the Seller and the
Representative.
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 SELLER. (a) The Seller
represents and warrants to and agrees with the several Underwriters that:
(i) A registration statement on Form S-3 (Registration No. 333-80109)
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 and the Certificates. 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) after effectiveness of such registration statement,
a final base prospectus and a final prospectus supplement relating to the
Certificates in accordance with Rules 430A and 424(b)(1) or (4) under the
Securities Act of 1933, as amended (the "Act"), or (ii) a final base
prospectus and a final prospectus supplement relating to the Certificates
in accordance with Rules 415 and 424(b)(2) or (5).
The Seller has included in such registration statement, as amended at
the Effective Date, all information (other than Rule 430A Information)
required by the Act and the rules thereunder to be included in the
Prospectus with respect to the Certificates and the offering thereof. As
filed such final prospectus supplement shall include all Rule 430A
Information, together with all other such required information, with
respect to the Certificates and the offering thereof and, except to the
extent that the Representative shall agree in writing to a modification,
shall be in all substantive respects in the form furnished to the
Representative prior to the Execution Time or, to the extent not completed
at the Execution Time, shall contain only such specific additional
information and other changes (beyond that contained in the latest
preliminary base prospectus and preliminary prospectus supplement, if any,
that have previously been furnished to the Representative) as 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 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
Certificates and the offering thereof and is used prior to filing of the
Prospectus. "Prospectus" shall mean the prospectus supplement relating to
the Certificates that is first filed pursuant to Rule 424(b) after the
Execution Time, together with the Base Prospectus or, if no filing pursuant
to Rule 424(b) is required, shall mean the prospectus supplement relating
to the Certificates, including the Base Prospectus, included in the
Registration Statement at the Effective Date. "Rule 430A Information" means
information with respect to the Certificates and the offering of the
Certificates permitted to be omitted from the Registration Statement when
it becomes effective pursuant to Rule 430A. "Rule 415," "Rule 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 TERI is a party will be true
and correct in all material respects.
(iii) This Agreement has been duly authorized, executed and delivered
by the Seller. The execution, delivery and performance of this Agreement
and the issuance and sale of the Certificates and compliance with the terms
and provisions hereof will not result in a breach or violation of any of
the terms and provisions of, or constitute a default under, any agreement
or instrument to which the Seller is a party or by which the Seller is
bound or to which any of the properties of the Seller is subject which
could reasonably be expected to have a material adverse effect on the
transactions contemplated herein. The Seller has full corporate power and
authority to cause the Trust to authorize, issue and sell the Certificates,
all as contemplated by this Agreement.
(iv) Other than as contemplated by this Agreement or as disclosed in
the Prospectus, there is no broker, finder or other party that is entitled
to receive from the Seller or any of its 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 Seller's assignment and delivery of the Financed Student
Loans to the Eligible Lender Trustee on behalf of the Trust as of the
Closing Date will vest in the Eligible Lender Trustee on behalf of the
Trust all the Seller'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.
(vii) 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 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.
(viii) The Seller is not, and after giving effect to the offering and
sale of the Certificates, will not be an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in the
United States Investment Company Act of 1940, as amended (the "Investment
Company Act");
(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 relating to stabilization on
the inside cover page of, and the statements under the caption "Underwriting"
in, the preliminary prospectus and the Prospectus.
3. PURCHASE, SALE AND DELIVERY OF THE CERTIFICATES. On the basis of
the representations, warranties and agreements herein contained, but subject to
the terms and conditions herein set forth, the Seller agrees to cause the Trust
to sell to the Underwriters, and the Underwriters agree, severally and not
jointly, to purchase from the Trust, at a purchase price of 100% of the
principal amount of the Certificates the respective principal amounts of
Certificates set forth opposite the names of the Underwriters in Schedule I
hereto. In addition, the Seller agrees to cause the Underwriters to be paid an
aggregate structuring fee in connection with the structuring of the Notes and
the Certificates of $914,500.00.
The Seller will deliver the Certificates to the Representative for the
respective accounts of the Underwriters, against payment of the purchase price
to or upon the order of the Seller by wire transfer or check in Federal (same
day) Funds, at the office of Stroock & Stroock & Lavan LLP, 180 Maiden Lane, New
York, New York 10038, on September 29, 1999, or at such other time not later
than seven full business days thereafter as the Representative and the Seller
determine, such time being herein referred to as the "Closing Date." The
Certificates to be so delivered will be initially represented by one or more
Certificates registered in the name of Cede & Co., the nominee of The Depository
Trust Company ("DTC"). The interests of beneficial owners of the Certificates
will be represented by book entries on the records of DTC and participating
members thereof. Definitive Certificates will be available only under the
limited circumstances specified in the Trust Agreement.
4. OFFERING BY THE UNDERWRITERS. It is understood that, after the
Registration Statement becomes effective, the several Underwriters propose to
offer the Certificates for sale to the public (which may include selected
dealers) as set forth in the Prospectus.
5. COVENANTS OF THE SELLER. The Seller covenants and agrees with the
several Underwriters that:
(a) Prior to the termination of the offering of the Certificates, the
Seller will not file any amendment of the Registration Statement or supplement
to the Prospectus unless the Seller has furnished the Representative a copy for
its review prior to filing and will not file any such proposed amendment or
supplement to which the Representative reasonably objects. Subject to the
foregoing sentence, if the Registration Statement has become or becomes
effective pursuant to Rule 430A, or filing of the Prospectus is otherwise
required under Rule 424(b), the Seller will file the Prospectus, properly
completed, and any supplement thereto, with the Commission pursuant to and in
accordance with the applicable paragraph of Rule 424(b) within the time period
prescribed and will provide evidence satisfactory to the Representative of such
timely filing.
(b) The Seller will advise the Representative promptly of any proposal
to amend or supplement the registration statement as filed or the related
prospectus or the Registration Statement or the Prospectus and will not effect
such amendment or supplementation without the consent of the Representative
prior to the Closing Date, and thereafter will not effect any such amendment or
supplementation to which the Representative reasonably objects; the Seller will
also advise the Representative promptly of any request by the Commission for any
amendment of or supplement to the Registration Statement or the Prospectus or
for any additional information; and the Seller will also advise the
Representative promptly of the effectiveness of the Registration Statement (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 the Seller will use its best efforts to prevent the issuance of
any such stop order and to obtain as soon as possible the lifting of any issued
stop order.
(c) If, at any time when a prospectus relating to the Certificates is
required to be delivered under the Act, any event occurs as a result of which
the Prospectus as then amended or supplemented would contain an untrue statement
of a material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, or if it is necessary at any time to amend 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 hereof.
(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 the holders of the Certificates an earnings statement of the Trust covering a
period of at least twelve months beginning after the Effective Date which will
satisfy the provisions of Section 11(a) of the Act and Rule 158 of the
applicable Rules and Regulations thereunder. For the purpose of the preceding
sentence, "Availability Date" means the 45th day after the end of the fourth
fiscal quarter following the fiscal quarter that includes the Effective Date,
except that, if such fourth fiscal quarter is the last quarter of the Trust's
fiscal year, "Availability Date" means the 90th day after the end of such fourth
fiscal quarter.
(e) The Seller will furnish to the Representative copies of the
Registration Statement (two of which will be signed and will include all
exhibits), each related preliminary prospectus, the Prospectus and all
amendments and supplements to such documents, in each case as soon as available
and in such quantities as the Representative reasonably requests.
(f) The Seller will arrange for the qualification of the Certificates
for sale under the laws of the States of New York, Florida, California, Hawaii,
and the District of Columbia and will continue such qualifications in effect so
long as required for the distribution.
(g) For a period from the date of this Agreement until the retirement
of the Certificates, or until such time as the several Underwriters shall cease
to maintain a secondary market in the Certificates, whichever occurs first, the
Seller will deliver to the Representative the annual statements of compliance
and the annual independent certified public accountants' reports furnished to
the Indenture Trustee or the Eligible Lender Trustee pursuant to the Sale and
Servicing Agreement, as soon as such statements and reports are furnished to the
Indenture Trustee or the Eligible Lender Trustee.
(h) So long as any of the Certificates is 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 the holders of the
Certificates 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 the Seller 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 Seller 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 Seller 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 Certificates by the rating agency or agencies that initially rate the
Certificates is conditional at the time of the issuance of the Certificates 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 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, neither the Seller nor 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
construed to prevent the sale of student loans by the Seller.
(l) The Seller will apply the net proceeds of the offering and the
sale of the Certificates and the Notes that it receives in the manner set forth
in the Prospectus under the caption "Use of Proceeds."
(m) The Seller will pay all expenses incident to the performance of
its obligations under this Agreement, including (i) the printing and filing of
the documents (including the Registration Statement and Prospectus) (ii) the
preparation, issuance and delivery of the Certificates to the Representative,
(iii) the fees and disbursements of the Seller's counsel and accountants, (iv)
the qualification of the Certificates under securities laws in accordance with
the provisions of Section 5(f), including filing fees and the fees and
disbursements of counsel for the Representative in connection therewith and in
connection with the preparation of any blue sky or legal investment survey, if
any is requested, (v) the printing and delivery to the Representative of copies
of the Registration Statement as originally filed and of each amendment thereto,
(vi) the printing and delivery to the Representative of copies of any blue sky
or legal investment survey prepared in connection with the Certificates, (vii)
any fees charged by rating agencies for the rating of the Certificates, (viii)
the fees and expenses, if any, incurred with respect to any filing with the
National Association of Securities Dealers, Inc. and (ix) the fees and expenses
of Thompson Hine & Flory LLP in its role as counsel to the Trust incurred as a
result of providing the opinions required by Section 6(h) hereof.
6. CONDITIONS OF THE OBLIGATIONS OF THE UNDERWRITERS. The obligations
of the several Underwriters to purchase and pay for the Certificates will be
subject to the accuracy of the representations and warranties on the part of 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) The Representative shall have received a letter, dated on or prior
to the Closing Date of Ernst & Young LLP on behalf of the Seller 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 or KeyCorp which, in the judgment of the Representative,
materially impairs the investment quality of the Certificates or makes it
impractical or inadvisable to market the Certificates; (ii) any downgrading in
the rating of any debt securities of KBUSA or KeyCorp 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 or
KeyCorp (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 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
Certificates on the terms and in the manner contemplated in the Prospectus.
(e) The Representative shall have received an opinion of Forrest F.
Stanley, Esq., General Counsel of KBUSA, as counsel for KBUSA, as the Seller,
the Master Servicer, the Cap Provider and the Administrator, 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 Thompson Hine
& Flory LLP, counsel to the Seller, dated the Closing Date, in the form attached
hereto as Exhibit B, or as is otherwise satisfactory in form and substance to
the Representative and its counsel.
(g) The Representative shall have received an opinion of Kirkpatrick &
Lockhart LLP, counsel to the Seller, 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 Certificates" accurately describe
the material Pennsylvania tax consequences to holders of the Certificates.
(h) The Representative shall have received an opinion addressed to the
several Underwriters of Thompson Hine & Flory 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 for which a Partnership Election is Made--Tax
Consequences to Holders of the Certificates" accurately describe the material
Federal income tax consequences to holders of the Certificates, and the
statements in the Prospectus under the headings "Summary of Terms--ERISA
Considerations" and "ERISA Considerations" to the extent that they constitute
statements of matters of law or legal conclusions with respect thereto, have
been prepared or reviewed by such counsel and accurately describe the material
consequences to holders of the Certificates under ERISA. Thompson Hine & Flory
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.
(i) The Representative shall have received an opinion addressed to the
several Underwriters of Stroock & Stroock & Lavan LLP, in its capacity as
special counsel to the several Underwriters, dated the Closing Date, with
respect to the validity of the Certificates and the Notes and such other related
matters as the Representative shall reasonably require and the Seller 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.
(j) The Representative shall have received an opinion of Dean Blakey &
Moskowitz, 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 the
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 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; 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.
(k) 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 Agreement 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 Agreement 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 Agreement 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 Agreement 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.
(l) The Representative shall have received an opinion of counsel to
Great Lakes, 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.
(m) 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.
(n) The Representative shall have received an opinion of 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.
(o) 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.
(p) The Representative shall have received an opinion of counsel to
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 counsel'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.
(q) The Representative shall have received an opinion of counsel to
the New York State Higher Education Services Corporation ("HESC"), dated the
Closing Date and satisfactory in form and substance to the Representative and
its counsel, to the effect that:
(i) HESC 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 HESC'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) HESC 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 HESC'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
HESC's obligations under such Guarantee Agreement) to which HESC is a party
has been duly authorized, executed and delivered by HESC and is the legal,
valid and binding obligation of HESC enforceable against HESC 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 HESC of the Guarantee
Agreement to which it is a party, nor the consummation by HESC of the
transactions contemplated therein nor the fulfillment of the terms thereof
by HESC 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 HESC or of any indenture or other agreement
or instrument to which HESC is a party or by which HESC is bound, or result
in a violation of or contravene the terms of any statute, order or
regulation applicable to HESC of any court, regulatory body, administrative
agency or governmental body having jurisdiction over HESC.
(v) There are no actions, proceedings or investigations pending or, to
the best of such counsel's knowledge after due inquiry, threatened against
HESC before or by any governmental authority that might materially and
adversely affect the performance by HESC 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 HESC's obligations under such Guarantee Agreement) to
which it is a party.
(r) 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.
(s) The Representative shall have received an opinion of Kotin,
Crabtree & Strong, counsel to The Education Resources Institute, Inc., a
Massachusetts non-profit corporation ("TERI"), dated the Closing Date and
satisfactory in form and substance to the Representative and its counsel, to the
effect that:
(i) TERI 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) TERI 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 TERI is a party has been duly
authorized, executed and delivered by TERI and is the legal, valid and
binding obligation of TERI enforceable against TERI 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 TERI of the Guarantee
Agreement to which it is a party, nor the consummation by TERI of the
transactions contemplated therein nor the fulfillment of the terms thereof
by TERI 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 TERI or of any indenture or other agreement
or instrument to which TERI is a party or by which TERI is bound, or result
in a violation of or contravene the terms of any statute, order or
regulation applicable to TERI of any court, regulatory body, administrative
agency or governmental body having jurisdiction over TERI.
(iv) There are no actions, proceedings or investigations pending or,
to the best of such counsel's knowledge after due inquiry, threatened
against TERI before or by any governmental authority that might materially
and adversely affect the performance by TERI of its obligations under, or
the validity or enforceability of, the Guarantee Agreement to which it is a
party.
(t) 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 preliminary prospectus dated September 20,
1999 and the Prospectus dated September 30, 1999 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 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 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.
(u) 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
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 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 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 and the Guarantee Agreements do not require any
consent, approval or authorization of, or any registration or filing with,
any applicable governmental authority.
(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 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 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.
(v) The Representative shall have received an opinion of Pepper
Hamilton LLP, Delaware counsel to the Trust, dated the Closing Date, in
form and substance satisfactory to the Representative and its counsel.
(w) The Representative shall have received an opinion of Pepper
Hamilton 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.
(x) 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,
1999, 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.
(y) 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, 1999, 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.
(z) 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,
Pennsylvania, Wisconsin, Delaware, New York and Illinois, as applicable,
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.
(aa) The Certificates shall be rated "A3" by Moody's Investors
Service, Inc. ("Moody's"), "A" Fitch IBCA, Inc. ("Fitch"), and "A" Standard and
Poor's Ratings Services, a division of the McGraw-Hill Companies, Inc. ("S&P")
and each a "Rating Agency"), and no Rating Agency shall have placed any
Certificate under surveillance or review with possible negative implications.
(bb) The issuance of the Notes and the Certificates shall not have
resulted in a reduction or withdrawal by any Rating Agency of the current rating
of any outstanding securities issued or originated by the Seller or any of its
affiliates.
(cc) On the Closing Date, $280,000,000 aggregate principal amount of
the Class A-1 Notes, $625,000,000 aggregate principal amount of the Class A-2
Notes, and $30,000,000 aggregate principal amount of the Class M Notes shall
have been issued and sold.
(dd) TERI shall have furnished to the Representative a certificate of
TERI, 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 TERI 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.
(ee) 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.
(ff) 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.
(gg) 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.
(hh) 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.
(ii) 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.
(jj) ECMC shall have furnished to the Representative a certificate of
ECMC, 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 ECMC 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.
(kk) HESC shall have furnished to the Representative a certificate of
HESC, 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 HESC 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.
(ll) USAF shall have furnished to the Representative a certificate of
USAF, 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 USAF 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.
(mm) 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.
(nn) 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.
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, 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 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 through the Representative 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 (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 written information relating to
such Underwriter 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
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 Seller on the
one hand and the Underwriters on the other from the offering of the Certificates
or (ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Seller on the one hand and the Underwriters on the other in connection with
the statements or omissions which resulted in such losses, claims, damages or
liabilities as well as any other relevant equitable considerations. The relative
benefits received by the Seller on the one hand and the Underwriters on the
other shall be deemed to be in the same proportion as the total net proceeds
from the offering (before deducting expenses) received by the Seller 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
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 Company and the Underwriters agree that it would not
be just and equitable if contribution pursuant to this subsection (d) were
determined by PRO RATA allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above in this
subsection (d). The amount paid or payable by an indemnified party as a result
of the losses, claims, damages or liabilities referred to in the first sentence
of this subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any action or claim which is the subject of this subsection (d).
Notwithstanding the provisions of this subsection (d), no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Certificates underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission, except as may be
provided in any agreement among the Underwriters relating to the offering of the
Certificates. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. The obligations
of the Underwriters in this subsection (d) to contribute are several in
proportion their respective underwriting obligations and not joint.
(e) The obligations of the Seller under this Section shall be in
addition to any liability which the Seller may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section shall be in addition to any liability which the
respective Underwriters may otherwise have and shall extend, upon the same terms
and conditions, to each director of the Seller, to each officer of the Seller
who has signed the Registration Statement and to each person, if any, who
controls the Seller within the meaning of the Act.
8. SURVIVAL OF REPRESENTATIONS AND OBLIGATIONS. The respective
indemnities, agreements, representations, warranties and other statements of the
Seller or its officers and of the several Underwriters set forth in or made
pursuant to this Agreement or contained in certificates of officers of the
Seller submitted pursuant hereto shall remain operative and in full force and
effect, regardless of any investigation or statement as to the results thereof,
made by or on behalf of any Underwriter, the Seller or any of their respective
representatives, officers or directors or any controlling person, and will
survive delivery of and payment for the Certificates. If for any reason the
purchase of the Certificates by the Underwriters is not consummated, the Seller
shall remain responsible for the expenses to be paid or reimbursed by the Seller
pursuant to Section 5 and the respective obligations of the Seller and the
Underwriters pursuant to Section 7 shall remain in effect. If for any reason the
purchase of the Certificates by the Underwriters is not consummated (other than
pursuant to Section 9), 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 Certificates.
9. FAILURE TO PURCHASE THE CERTIFICATES. If any Underwriter or
Underwriters default in their obligations to purchase its portion of the
Certificates hereunder and the aggregate principal amount of the Certificates
that such defaulting Underwriter or Underwriters agreed but failed to purchase
does not exceed 10% of the total principal amount of the Certificates, the
Representative may make arrangements satisfactory to the Seller for the purchase
of such Certificates by other persons, including any of the Underwriters, but if
no such arrangements are made by the Closing Date, the non-defaulting
Underwriters shall be obligated severally, in proportion to their respective
commitments hereunder, to purchase the Certificates that such defaulting
Underwriters agreed but failed to purchase. If any Underwriter or Underwriters
so default and the aggregate principal amount of the Certificates with respect
to such default or defaults exceeds 10% of the total principal amount of the
Certificates and arrangements satisfactory to the Representative and the Seller
for the purchase of such Certificates by other persons are not made within 36
hours after such default, this Agreement will terminate without liability on the
part of any non-defaulting Underwriter or the Seller, 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 11 Madison Avenue, New York, NY 10010, Attention:
Joseph Fashano; if sent to the Seller, will be mailed, delivered or telegraphed
and confirmed to it at Key Bank USA, National Association, 800 Superior Avenue,
Cleveland, OH 44144, Attention: Senior Vice President, Education Lending;
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 will be governed by, and construed
in accordance with, the laws of the State of New York.
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
Seller and the several Underwriters in accordance with its terms.
Very truly yours,
KEY BANK USA, NATIONAL ASSOCIATION
By: /s/ Donald Schilling
-------------------------------
Name: Donald Schilling
Title: Senior Vice President
The foregoing Certificate
Underwriting Agreement is hereby confirmed
and accepted as of the date first written above.
CREDIT SUISSE FIRST BOSTON CORPORATION
By: /s/ Paul Vambutas
---------------------------
Name: Paul Vambutas
Title: Vice President
Acting on behalf of itself and as Representative of the
several Underwriters.
SCHEDULE I
UNDERWRITER Certificates
Credit Suisse First Boston Corporation......................... $65,000,000
Total.......................................................... $65,000,000
===========
APPENDIX A
[Form of Opinion of Counsel to Key Bank USA, National Association]
September 30, 1999
Credit Suisse First Boston Corporation Moody's Investor Service, Inc.
11 Madison Avenue 99 Church Street, 4th Floor
New York, New York 10010 New York, New York 10007
Bank One, National Association Fitch IBCA, Inc.
1 Bank One Plaza, Suite IL1-0126 One State Street Plaza
Chicago, Illinois 60670-0126 New York, New York 10004
Bankers Trust Company Standard & Poor's Ratings Group
Four Albany Street 26 Broadway, 15th Floor
New York, New York 10006 New York, New York 10004
Re: KEYCORP STUDENT LOAN TRUST 1999-B
Gentlemen:
I am the General Counsel of Key Bank USA, National Association (the
"Bank") and have acted as counsel to the Bank in connection with the issuance
and sale by the KeyCorp Student Loan Trust 1999-B (the "Trust") of (i) Floating
Rate Class A-1 Asset Backed Notes in the aggregate principal amount of
$280,000,000, Floating Rate Class A-2 Asset Backed Notes in the aggregate
principal amount of $625,000,000, and Floating Rate Class M Asset Backed Notes
in the aggregate principal amount of $30,000,000, pursuant to the Note
Underwriting Agreement dated September 30, 1999 between the Bank and Credit
Suisse First Boston Corporation (the "Note Underwriting Agreement") and (ii)
Floating Rate Asset Backed Certificates in the aggregate principal amount of
$65,000,000, pursuant to the Certificate Underwriting Agreement dated September
30, 1999 between the Bank and Credit Suisse First Boston Corporation (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, "Principal Documents" shall mean, collectively, (a) the Sale and
Servicing Agreement, the Great Lakes Sub-Servicing Agreement, the PHEAA
Sub-Servicing Agreement, the Trust Agreement, the Cap Agreement and the
Administration Agreement, and (b) the Guarantee Agreement to which the Bank,
TERI, 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 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, and sell the Initial Financed Student Loans.
(2) The Bank has duly authorized, executed, and delivered the written
order to the Eligible Lender Trustee to authenticate the Certificates. 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 to
the General Qualifications (as defined in Appendix A).
(3) The Bank 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 Note Underwriting Agreement, the Notes will be validly issued
and entitled to the benefits of the Indenture, subject to the General
Qualifications.
(4) The Bank 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 Bank, enforceable against the
Bank in accordance with their terms, subject to the General Qualifications.
(5) Neither the transfer of the Initial Financed Loans by the Bank to
the Eligible Lender Trustee on behalf of the Trust, nor the assignment by the
Bank of the Trust Estate to the Trust, nor the grant by the Trust of the
security interest in the Collateral to the Indenture Trustee pursuant to the
Indenture, nor the execution and delivery by the Bank 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 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, (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.
(6) There are no actions, proceedings or investigations pending
against the Bank or, to my actual knowledge, threatened against the Bank 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 Bank or the ability of the Bank 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 Bank 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.
(8) To my actual knowledge, there are no legal or governmental
proceedings pending or threatened against the Bank that are required to be
disclosed in the Registration Statement, other than those disclosed therein.
(9) To my actual knowledge, there are no contracts, indentures,
mortgages, loan agreements, notes, leases, or other instruments to which the
Bank 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 4 and 5, the Bank holds the requisite title
and rights to the Financed Student Loans, (ii) the Underwriting Agreements and
the Principal Documents have been duly executed and delivered by all parties
thereto (other than the Bank) 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 is a party or by which it or its 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 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
Agreements and Principal Documents and may not be relied upon for any other
purpose or by any other person.
Very truly yours,
APPENDIX A
This Appendix A is attached to, and shall be deemed a part of the
Opinion Letter of Forrest F. Stanley, General Counsel of Key Bank USA, National
Association, to Credit Suisse First Boston Corporation, et al., dated September
30, 1999 (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, are specifically
directed to the Bank or its property, and are issued by a court of
competent jurisdiction.
EXHIBIT B
[Form of Opinion of Thompson Hine & Flory LLP]
September 30, 1999
Credit Suisse First Boston Corporation,
As Representative of the Underwriters
Eleven Madison Avenue
New York, New York 10010-3629
Re: KeyCorp Student Loan Trust 1999-B; Security Interests
Ladies and Gentlemen:
We have acted as counsel to Key Bank USA, National Association (the "Seller",
Key Bank USA, National Association, as master servicer (the "Master Servicer",
and KeyCorp Student Loan Trust 1999-B (the "Trust") in connection with the
negotiation, execution and delivery of the following:
1. the Indenture, dated as of September 1, 1999, by and between the
Trust and Bankers Trust Company, as Indenture Trustee (the
"Indenture Trustee")(the "Indenture");
2. the Trust Agreement, dated as of September 1, 1999 by and among
the Seller, Bank One, National Association, as Eligible Lender
Trustee (the "Eligible Lender Trustee") and Bank One Delaware,
Inc., as Delaware Co-Trustee (the ADelaware Co-Trustee) (the
"Trust Agreement");
3. the Sale and Servicing Agreement, dated as of September 1, 1999,
by and among the Trust, the Seller, the Eligible Lender Trustee
and Key Bank USA, National Association, as Administrator and
Master Servicer (the "Sale and Servicing Agreement");
4. the Subservicing Agreement, dated as of September 1, 1999, by and
between the Master Servicer and Great Lakes Higher Education Loan
Servicing Corporation ("Great Lakes")(the "Great Lakes
Subservicing Agreement");
5. the Subservicing Agreement, dated as of September 1, 1999, by and
between the Master Servicer and Pennsylvania Higher Education
Assistance Agency ("PHEAA")(the "PHEAA Subservicing Agreement");
6. the Administration Agreement, dated as of September 1, 1999, by
and among the Trust, Key Bank USA, National Association, as
Administrator, and the Indenture Trustee (the "Administration
Agreement");
7. the Underwriting Agreement, dated as of September 30, 1999, by
and between the Seller and Credit Suisse First Boston
Corporation, as the Representative of the Underwriters (the
"Underwriting Agreement");
8. the Certificate Underwriting Agreement, dated as of September 30,
1999, by and between the Seller and Credit Suisse First Boston
Corporation, as the Representative of the Underwriters (the
"Certificate Underwriting Agreement");
9. the ISDA Master Agreement and Schedule thereto, each dated as of
September 30, 1999, by and between Key Bank USA and the Trust
(the "Cap Agreement");
10. the Key Bank USA, National Association Registration Statement
dated August 17, 1999 (Registration No. 333-80109), as amended
(such registration statement as so amended being referred to
herein as the "Registration Statement"), including the final
prospectus which was a part thereof when the Registration
Statement was declared effective (the "Prospectus"); and
11. UCC-1 financing statements as listed on EXHIBIT A attached
hereto.
The documents described in numbers 1 through 10 above are collectively referred
to herein as the "Agreements." The documents described in number 11 above and
listed on EXHIBIT A are collectively referred to herein as the "Financing
Statements." This opinion is being delivered pursuant to Section 6(f) of the
Underwriting Agreement and Section 6(f) of the Certificate Underwriting
Agreement. Capitalized terms used herein but not defined herein shall have the
meanings assigned to such terms in the Sale and Servicing Agreement.
Pursuant to the Sale and Servicing Agreement, the Seller is selling to the Trust
(or, in the case of the Initial Financed Student Loans, to the Eligible Lender
Trustee on behalf of the Trust), without recourse, for the benefit of the
Noteholders and the Certificateholders, all of its rights, title and interest in
(i) the Financed Student Loans (other than the Additional Student Loans) (the
"Initial Financed Student Loans") and all obligations of the Obligors
thereunder, including all monies paid thereunder, and all written communications
received by the Seller with respect thereto (including borrower correspondence,
notices of death, disability or bankruptcy and requests for deferrals or
forbearances), on or after the Cutoff Date, or any Subsequent Cutoff Date, as
the case may be; (ii) the Assigned Agreements insofar as they relate to the
Financed Student Loans but not with respect to any other loans covered thereby
(the "Assigned Rights"); (iii) all funds on deposit from time to time in the
Trust Accounts (including all income thereon); and (iv) the proceeds of any and
all of the foregoing (the "Collateral"). Under the terms of the Indenture, the
Trust (and, with respect to the Financed Student Loans, the Eligible Lender
Trustee) will pledge to the Indenture Trustee for the benefit of the Noteholders
all of its right, title and interests in (i) the Financed Student Loans, and all
obligations of the Obligors thereunder, including all monies paid thereunder on
or after the Cutoff Date (or, in the case of Additional Student Loans, on or
after the related Subsequent Cutoff Date); (ii) the Sale and Servicing
Agreement, including the right of the Trust to cause the Seller to repurchase or
a Subservicer to purchase, Financed Student Loans from the Trust under
circumstances described therein and including the Assigned Rights; (iii) each
Guarantee Agreement, including the right of the Issuer to cause the related
Guarantor to make Guaranty Payments in respect of the Financed Student Loans ;
(iv) all funds on deposit from time to time in the Trust Accounts; and (v) all
present and future claims, demands, causes and choses in action in respect of
any or all of the foregoing and all payments on or under and all proceeds from
any of the foregoing.
Concurrently with the sale of the Financed Student Loans to the Eligible Lender
Trustee (on behalf of the Trust) and the pledge of the Financed Student Loans to
the Indenture Trustee, the Eligible Lender Trustee (on behalf of the Trust) will
deliver the Certificates and the Indenture Trustee will deliver the Notes to the
Trust. The Class A Notes are being sold in a public offering pursuant to the
Underwriting Agreement. The Class M Notes and $64,350,000 of the Certificates
are being sold to Key Bank, National Association in a private offering pursuant
to the Certificate Underwriting Agreement and the Underwriting Agreement. Seller
will retain $650,000 of the Certificates.
In rendering the opinion expressed below, we have examined and relied on each of
the documents listed above, as well as originals, or copies certified or
otherwise identified to our satisfaction, of such other documents, corporate
records, certificates of public officials and such other persons, instruments,
laws, statutes, ordinances, regulations and other matters and we have made
investigations of law, as we have deemed appropriate as a basis for the opinion
expressed below, including, but not limited to, Form UCC-11 searches purporting
to show all financing statements filed against the Seller in the jurisdictions
specified in Schedule 1 hereto and the Eligible Lender Trustee and the Trust in
the jurisdictions specified in Schedule 2 hereto as listed below (collectively,
the "Lien Searches"):
1. letters from Intercounty Clearance Corporation dated September 10,
1999, as to its searches of the records of the Secretary of State of
Ohio through July 25, 1999 for financing statements filed against
Seller, the Trust or the Eligible Lender Trustee, under the Ohio UCC
and copies of all such financing statements;
2. certificates of the Recorder of Cuyahoga County, Ohio dated
September 14, 1999, as to its searches of its records through
September 13, 1999 for financing statements filed against Seller, the
Trust or the Eligible Lender Trustee, under the Ohio UCC and copies of
all such financing statements;
3. letter from the Docket Department of Thompson Hine & Flory LLP
dated September 13, 1999, as to filings and notices of state
government tax liens, attachment liens and judgment liens with respect
to Seller, the Trust or the Eligible Lender Trustee, on file in the
Cuyahoga County, Ohio Common Pleas Court;
4. letter from the Docket Department of Thompson Hine & Flory LLP
dated September 13, 1999, as to filings and notices of Federal
government tax liens with respect to the Seller, the Trust or the
Eligible Lender Trustee, on file in the Recorder's Office of Cuyahoga
County, Ohio;
5. letters from Intercounty Clearance Corporation dated September 10,
1999, as to its searches of the records of the Secretary of the
Commonwealth of Pennsylvania through August 31, 1999 for financing
statements filed against Seller, the Trust or the Eligible Lender
Trustee, under the Pennsylvania UCC and copies of all such financing
statements;
6. letters from Intercounty Clearance Corporation dated September 10,
1999, as to its searches of the records of the Prothonotary of Dauphin
County, Pennsylvania through September 2, 1999 for financing
statements filed against Seller, the Trust or the Eligible Lender
Trustee, under the Pennsylvania UCC and copies of all such financing
statements;
7. letters from Intercounty Clearance Corporation dated September 10,
1999, as to its searches of the records of the Secretary of State of
Wisconsin through July 30, 1999 for financing statements filed against
Seller, the Trust or the Eligible Lender Trustee, under the Wisconsin
UCC and copies of all such financing statements;
8. letters from Intercounty Clearance Corporation dated September 10,
1999, as to its searches of the records of the Register of Dane
County, Wisconsin through September 3, 1999 for financing statements
filed against Seller, the Trust or the Eligible Lender Trustee, under
the Wisconsin UCC and copies of all such financing statements;
9. certificate of the Recorder of Secretary of State of Delaware dated
September 28, 1999, as to its searches of its records through
September 21, 1999 for financing statements filed against the Trust,
under the Delaware UCC and copies of all such financing statements;
10. letters from Intercounty Clearance Corporation dated September 10,
1999, as to its searches of the records of the Secretary of State of
Illinois through September 7, 1999 for financing statements filed
against the Trust or the Eligible Lender Trustee, under the Illinois
UCC and copies of all such financing statements;
11. letters from Intercounty Clearance Corporation dated September 10,
1999, as to its searches of the records of the Recorder of Cook
County, Illinois through August 27, 1999 for financing statements
filed against the Trust or the Eligible Lender Trustee, under the
Illinois UCC and copies of all such financing statements;
12. letters from Intercounty Clearance Corporation dated September 10,
1999, as to its searches of the records of the Department of State of
New York through September 3, 1999 for financing statements filed
against the Trust or the Eligible Lender Trustee, under the New York
UCC and copies of all such financing statements; and
13. letters from Intercounty Clearance Corporation dated September 10,
1999, as to its searches of the records of the City Register of New
York County, New York through August 19, 1999 for financing statements
filed against the Trust and the Eligible Lender Trustee, under the New
York UCC and copies of all such financing statements.
In rendering the opinions expressed below, we have relied, without independent
investigation, upon the Lien Searches. We have assumed that all such filings and
notices with respect to Seller have been properly filed and indexed in the
appropriate filing offices and that the Lien Searches accurately and completely
reflect all such filings and notices. Based upon certificates of Seller to the
following effect, we have assumed that no such filing or notice relating to
Seller has been made since the latest date specified in the relevant Lien
Searches.
We have not examined the Financed Student Loans and we have assumed the
conformity of the Financed Student Loans to the requirements of the Agreements.
The opinions expressed herein do not relate to or purport to cover the accuracy
of the descriptions of the Financed Student Loans in the Basic Documents or in
the financing statements filed in the offices described on Schedules 1 and 2
hereto. We have further assumed that each of the Financed Student Loans is in a
form required by the Higher Education Act and is an instrument which by its
terms does not preclude the grant of a security interest under the Agreements.
We have assumed that the promissory notes evidencing the Financed Student Loans
(the "Financed Student Loan Notes") are held and possessed by PHEAA and Great
Lakes, as applicable, pursuant to each of the PHEAA Subservicing Agreement and
the Great Lakes Subservicing Agreement, respectively. We have further assumed
that none of the Eligible Lender Trustee, the Indenture Trustee, PHEAA or Great
Lakes has received any other notice of bailment pursuant to Section 9-305 of the
Uniform Commercial Code with respect to the Financed Student Loan Notes, except
as contemplated by the Sale and Servicing Agreement, the PHEAA Subservicing
Agreement and the Great Lakes Subservicing Agreement.
In our examination in connection with this opinion, we have assumed the
authenticity of all documents submitted to us as originals, the genuineness of
all signatures, the legal capacity of all natural persons and the conformity to
the originals of all documents submitted to us as copies. In making our
examination of the documents executed by the parties thereto, we have assumed
that such parties (other than the Seller and the Trust) had the power, corporate
or otherwise, to enter into and perform all of their respective obligations
thereunder and have also assumed the due authorization by all requisite action,
corporate or otherwise, and the due execution and delivery by such parties of
such documents and the validity and binding effect thereof. We have further
assumed that there is not and will not be any other agreement that modifies or
supplements the agreements expressed in the Agreements. We have assumed there
are no prohibitions in any of the Agreements or the Basic Documents to which the
Trust or the Eligible Lender Trustee is a party that restrict the ability of
either such entity to assign or pledge interests in the Collateral and the
Indenture Trustee under the Indenture.
In rendering this opinion, we have also assumed the following matters and have
considered and relied without independent investigation upon the representations
and covenants made by the Seller in the Agreements or in certain certificates,
as of the time of the respective transfer of the Financed Student Loans by the
Seller to the Eligible Lender Trustee (on behalf of the Trust), and the
subsequent pledge by the Eligible Lender Trustee (on behalf of the Trust) of the
Financed Student Loans to the Indenture Trustee, unless otherwise specified:
A. At no time relevant to our opinion were any of the Financed Student
Loans subject to (1) any lien of any government or any agency or
instrumentality thereof, including, without limitation, any Federal,
state or local tax lien (including, without limitation, liens under
Section 6323(c)(2) and (d) of the Internal Revenue Code of 1986, as
amended), (2) any lien arising under the Employment Retirement Income
Security Act of 1974, as amended, or (3) any lien arising by operation
of law (including, without limitation, any attachment or execution
lien) or other lien which does not require the filing of a financing
statement or other appropriate notice to take priority over other
security interests.
B. No Financed Student Loans will be subject to any interest that is
inconsistent with the transfer of the Financed Student Loans to the
Eligible Lender Trustee (on behalf of the Trust) or the pledge of the
Financed Student Loans to the Indenture Trustee.
C. The chief executive office of the Seller is located at Key Tower,
127 Public Square, Cleveland, Cuyahoga County, Ohio.
D. The chief executive office of the Trust is located at the chief
executive office of the Eligible Lender Trustee, 1 First National
Plaza, Chicago, Illinois 60670.
E. The chief executive office of the Eligible Lender Trustee is
located at 1 First National Plaza, Chicago, Illinois 60670.
F. None of the Seller, Trust or Eligible Lender Trustee has changed
its name, identity or corporate structure, or the location of its
chief executive office within the past four months.
G. There has been delivered to the Eligible Lender Trustee from the
Seller a Schedule of Financed Student Loans in accordance with the
terms of the Sale and Servicing Agreement.
H. The Financing Statements contain the correct name of the applicable
secured party and the current address of the secured party from which
information concerning the security interests may be obtained.
I. The Financing Statements will be filed with the appropriate filing
offices as listed on Exhibit A. We have further assumed that no other
financing statements relating to the Financed Student Loans will be
filed in the filing offices between the date hereof and the actual
date the Financing Statements are filed.
J. Value has been given (1) by the Eligible Lender Trustee (on behalf
of the Trust) to the Seller in connection with the transfer of the
Financed Student Loans by the Seller to the Trust and (2) by the
Indenture Trustee to the Eligible Lender Trustee (on behalf of the
Trust) in connection with the grant of the liens and security
interests by the Trust in favor of the Indenture Trustee.
K. At all times material to our opinion, all factual statements
contained in certificates delivered to us by the Seller, the Indenture
Trustee or the Eligible Lender Trustee were accurate and correct.
The Seller has delivered a certificate stating that, with respect to all
Financed Student Loans transferred to the Trust, it had good and marketable
title to the Financed Student Loans, free and clear of all liens at the time of
transfer and confirming the matters set forth in paragraphs C, F, and G above.
The Eligible Lender Trustee has delivered a certificate stating that it does not
have knowledge of any lien affecting the Financed Student Loans or the proceeds
thereof except as reflected in the Sale and Servicing Agreement and in favor of
the Indenture Trustee as set forth in the Indenture. The Indenture Trustee has
delivered a certificate stating that it does not have knowledge of any lien
affecting the Financed Student Loans or the proceeds thereof except as reflected
in the Sale and Servicing Agreement and the Indenture.
In addition, we have been advised that any Financed Student Loan Notes held or
possessed by PHEAA (which will be held or possessed at PHEAA's office located in
the Commonwealth of Pennsylvania) or Great Lakes (which will be held or
possessed at Great Lakes= office located in the State of Wisconsin) will not be
held or possessed within the State of Ohio. With your consent we are assuming
for the purposes of this opinion that the laws of Delaware, Pennsylvania and
Wisconsin regarding perfection of security interests in the Collateral are the
same as those of the State of Ohio. We have, however, reviewed the most recent
compilations available to us of the laws of the States of Delaware and Wisconsin
and the Commonwealth of Pennsylvania and based on such review have concluded
that UCC Section 9-304 as adopted in Ohio (Section 1309.23 of the Ohio Revised
Code) is substantially similar to UCC Section 9-304 as adopted in the State of
Delaware (6 Del. C. Section 9-304 (1998)), the State of Wisconsin (Wis. Stat.
Section 409.304 (1998)) and the Commonwealth of Pennsylvania (13 Pa. Cons. Stat.
Section 9304 (1998)).
We are admitted to the Bar of the State of Ohio (and, with respect to certain
lawyers in our firm, the Bar of the State of New York) and we express no opinion
herein as to the laws of any jurisdiction other than the laws of the United
States of America and the laws of the State of Ohio, and as to the opinions
expressed in paragraphs (3), (7) and (8), the laws of the State of New York.
For purposes of this opinion, the "Ohio UCC" means the Uniform Commercial Code
as in effect in the State of Ohio.
Based upon the foregoing and subject to the limitations, qualifications,
exceptions and assumptions set forth herein, we are of the opinion that:
(1) If the transfer by the Seller of the Financed Student Loans,
including all moneys paid by the Obligors thereunder, pursuant to the
terms of the Sale and Servicing Agreement is characterized as a sale
for purposes of applicable state commercial law, such transfer has
been effected by delivery of the written assignment in the form of
Exhibit E to the Sale and Servicing Agreement. If the transfer is so
characterized, the Eligible Lender Trustee on behalf of the Trust has
acquired all right, title and interest of the Seller in the Financed
Student Loans, including all moneys paid by the Obligors thereunder,
free and clear of any Liens, other than any Liens the priority of
which is determined under applicable law without regard to the filing
of record of a financing statement in the offices listed on Schedule 1
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 Eligible Lender Trustee on behalf of the Trust acquired the
Financed Student Loans.
(2) If the transfer by the Seller of the Financed Student Loans,
including all moneys paid by the Obligors thereunder, pursuant to the
terms of the Sale and Servicing Agreement is not characterized as a
sale for purposes of applicable state commercial law, the Sale and
Servicing Agreement creates a valid security interest in favor of the
Eligible Lender Trustee on behalf of the Trust in the Financed Student
Loans, including all moneys paid by the Obligors thereunder, that has
been duly perfected by (a) the filing of financing statements executed
by the Seller in the offices indicated in Schedule 1 hereto and (b)
the execution and delivery by PHEAA and Great Lakes of each of the
PHEAA Subservicing Agreement and the Great Lakes Subservicing
Agreement, respectively, and the taking of possession of the Financed
Student Loan Notes by PHEAA and Great Lakes. If the transfer is so
characterized, the filing of such financing statements and the
execution and delivery by PHEAA and Great Lakes of each of the PHEAA
Subservicing Agreement and the Great Lakes Subservicing Agreement,
respectively, have perfected a security interest in such Financed
Student Loans, including all moneys paid by the Obligors thereunder
and proceeds thereof which is prior to any other security interest
which must be perfected under Chapters 1301 through 1310 of the Ohio
UCC by filing appropriate financing statements or taking possession of
the collateral. No filings or other actions, other than the filing of
appropriate UCC continuation statements and the continued possession
of the Financed Student Loan Notes by the applicable Subservicer
pursuant to the Sale and Servicing Agreement, are necessary to
maintain the perfection and priority of such security interest. We
call your attention to the fact that, (X) unless continuous possession
of the Financed Student Loan Notes is retained by the applicable
Subservicer, perfection of the security interest in the Financed
Student Loans will be terminated and (Y) 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 by the Obligors thereunder, and in the other Collateral
will be terminated if the Seller hereafter changes its name, identity
or corporate structure so that the financing statements filed in the
offices indicated in Schedule 1 hereto become seriously misleading.
(3) The Indenture creates a valid security interest in the
interest of the Eligible Lender Trustee on behalf of the Trust in the
Financed Student Loans, including all moneys paid by the Obligors
thereunder on or after the Cutoff Date, or any Subsequent Cutoff Date,
as the case may be, in favor of the Indenture Trustee, as trustee for
the benefit of the Noteholders, that has been duly perfected by (a)
the filing of financing statements executed by the Eligible Lender
Trustee in the offices indicated in Schedule 2 hereto and (b) the
execution and delivery by PHEAA and Great Lakes of each of the PHEAA
Subservicing Agreement and the Great Lakes Subservicing Agreement,
respectively, and the taking of possession of the Financed Student
Loan Notes by PHEAA and Great Lakes. The filing of such financing
statements and the execution and delivery by PHEAA and Great Lakes of
each of the PHEAA Subservicing Agreement and the Great Lakes
Subservicing Agreement, respectively, have perfected a security
interest in the interest of the Eligible Lender Trustee on behalf of
the Trust in the Financed Student Loans, including all moneys paid by
the Obligors thereunder and proceeds thereof which is prior to any
other security interest which must be perfected under Chapters 1301
through 1310 of the Ohio UCC by filing appropriate financing
statements or taking possession of the collateral. No filings or other
actions, other than the filing of appropriate UCC continuation
statements and the continued possession of the Financed Student Loan
Notes by the applicable Subservicer on behalf of the Indenture Trustee
pursuant to the Sale and Servicing Agreement, are necessary to
maintain the perfection and priority of such security interest. We
call your attention to the fact that, (X) unless continuous possession
of the Financed Student Loan Notes is retained by the applicable
Subservicer on behalf of the Indenture Trustee, perfection of the
security interest in the Financed Student Loans will be terminated and
(Y) 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 by the Obligors
thereunder, and in the other Collateral 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 2 hereto become seriously misleading.
(4) 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,
the Underwriting Agreement and the Certificate Underwriting Agreement
become an "investment company" as defined in the Investment Company
Act of 1940 ("Investment Company Act") or a company "controlled by" an
"investment company" within the meaning of the Investment Company Act.
(5) The Trust Agreement need not be qualified under the Trust
Indenture Act of 1939, as amended, and the Trust is not required to
register under the Investment Company Act.
(6) The Indenture need not be qualified under the Trust Indenture
Act of 1939, as amended.
(7) The Trust has duly authorized the execution and delivery of
the Indenture, the Sale and Servicing Agreement, the Administration
Agreement and the Cap Agreement, and, when duly executed and delivered
by the Eligible Lender Trustee, such documents will be valid and
binding obligations of the Trust, enforceable against the Trust in
accordance with their respective 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.
(8) The Seller has duly executed and delivered the Sale and
Servicing Agreement, the Trust Agreement, the Administration
Agreement, the Underwriting Agreement, the Certificate Underwriting
Agreement and the Cap Agreement, and, when duly executed and delivered
by the Seller, such documents will be valid and binding obligations of
the Seller, enforceable against the Seller in accordance with their
respective 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 Master Servicer has duly executed and delivered the PHEAA
Subservicing Agreement and the Great Lakes Subservicing Agreement,
and, when duly executed and delivered by the Master Servicer, such
documents will be valid and binding obligations of the Master
Servicer, enforceable against the Seller in accordance with their
respective 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.
(10) The execution and delivery of the Control Agreement by the
parties thereto perfects the security interest of the Seller in the
securities accounts therein described, subject to the exceptions and
exclusions therein provided (the "Securities Accounts"). The Sale and
Servicing Agreement is effective to assign the Seller's security
interest in the Securities Accounts to the Trust, notwithstanding the
fact that the Trust is not a party to the Control Agreement. The
Indenture is effective to assign the Trust's security interest in the
Securities Accounts to the Indenture Trustee, notwithstanding the fact
that the Indenture Trustee is not a party to the Control Agreement.
Section 1309.21(B) of the Ohio UCC (UCC Section 9-302(2)) provides
that no filing under the Ohio UCC is required to continue the
perfected status of a security interest against creditors of and
transferees from the original debtor if a secured party assigns a
perfected security interest. As to the priority of the security
interest in the Securities Accounts transferred first by the Seller to
the Trust and then by the Trust to the Indenture Trustee, assuming, on
the basis of the representations and warranties contained in the
Control Agreement that no other control or similar agreement has been
entered into by the securities intermediary referred to in the Control
Agreement, while there is no case or statute on point, we are of the
opinion that an Ohio court addressing the issue would hold (a) the
assignment of the Seller's first priority perfected security interests
in the Securities Accounts to the Trust would continue such first
priority perfected security interests in favor of the Trust and (b)
the subsequent assignment of the Trust's first priority perfected
security interests in the Securities Accounts to the Indenture Trustee
would continue such first priority perfected security interests in
favor of the Indenture Trustee.
Our opinions with respect to the creation and perfection of the
security interests in the Collateral (and in the Securities Accounts described
in the Control Agreement) are subject to the following exceptions:
(a) the opinions expressed in paragraphs (2) and (3) with respect to
proceeds is subject to (i) the effect of limitations under Section 9-306 of the
UCC on the priority and perfection of a security interest in proceeds, (ii) the
rights of a person in possession of proceeds consisting of money or instruments
(as defined in Section 9-105(l)(I) of the UCC) and (iii) the rights of a
purchaser of negotiable instruments or chattel paper (as defined in Section
9-105(l)(I) of the UCC) to the extent provided in Section 9-308 and 9-309 of the
UCC;
(b) in the case of property which becomes collateral after the date
the Sale and Servicing Agreement and the Indenture are duly executed, delivered
and accepted, Section 552 of the United States Bankruptcy Code limits the extent
to which property acquired by a debtor after the commencement of a case under
the United States Bankruptcy Code may be subject to a security interest arising
from a security agreement entered into by the debtor before the commencement of
such case;
(c) in the case of any Collateral, the Trust's, the Eligible Lender
Trustee=s or the Indenture Trustee=s respective security interests will
terminate upon a disposition of such Collateral authorized by the Trust, the
Eligible Lender Trustee or the Indenture Trustee, as applicable;
(d) we express no opinion as to the perfection or priority of any
security interest in favor of the Trust, the Eligible Lender Trustee or the
Indenture Trustee in any property acquired by any debtor more than four months
after such debtor changes its name, identity or corporate structure so as to
make the then filed Financing Statements seriously misleading, unless
appropriate new financing statements or amendments are filed before the
expiration is such four month period.
Our opinions with respect to the security interests of the Trust, the
Eligible Lender Trustee and the Indenture Trustee in the Collateral are subject
to the following qualifications:
(i) we express no opinion with respect to the priority of the
respective security interests of the Trust, the Eligible Lender Trustee and the
Indenture Trustee in the Collateral against (a) a lien creditor who attached or
levied on the Collateral prior to the perfection of the security interest of the
Trust, the Eligible Lender Trustee or the Indenture Trustee, (b) a security
interest in Collateral perfected under the laws of another jurisdiction to the
extent the Collateral was located in such jurisdiction within four months prior
to the date of the perfection of the security interest of the Trust, the
Eligible Lender Trustee or the Indenture Trustee, as applicable, (c) a lien or
claim in Collateral arising by operation of law that does not require filing or
possession in order to take priority over a prior perfected security interest,
(d) a lien, claim or encumbrance in favor of the United States of America or any
State, or any agency or instrumentality of either of them, or any other
governmental entity (including without limitation federal tax liens, liens
arising under the Employee Retirement Income Security Act of 1974, as amended,
or claims given priority pursuant to 31 U.S.C. ' 3713), or (e) a security
interest in Collateral perfected without possession pursuant to Section
1309.23(D) or (E) of the Ohio UCC [UCC Sections 9-304(4) or (5)]; and
(ii) this opinion is limited to the matters set forth herein, and no
opinion is implied or may be inferred beyond the matters expressly stated.
A copy of this opinion may be delivered to Moody's Investors Service,
Inc., Fitch IBCA, Inc., Standard & Poor=s Rating Group, Bank One, National
Association, as Eligible Lender Trustee, Bank One Delaware, Inc., as Delaware
Co-Trustee and Bankers Trust Company, as Indenture Trustee, each of which may
rely upon this opinion as if it were addressed to them. This opinion is solely
for the benefit of the addressees hereof and the persons named in the
immediately preceding sentence and is not to be quoted or referred to in any
manner without our prior written consent.
Respectfully submitted,
SCHEDULE 1
1. Recorder's Office of County of Cuyahoga, Ohio
2. Secretary of State of Ohio
SCHEDULE 2
8. Recorder's Office of Cook County, Illinois
9. Secretary of State of Illinois
3. Recorder's Office of New York County, New York
10. Department of State of New York
11. Recorder's Office of New Castle County, Delaware
12. Secretary of State of Delaware
13. Prothonotary of Dauphin County, Pennsylvania
14. Secretary of the Commonwealth of Pennsylvania
15. Recorder's Office of Dane County, Wisconsin
16. Secretary of State of Wisconsin
17. Recorder's Office of County of Cuyahoga, Ohio
18. Secretary of State of Ohio
EXHIBIT A
KEYCORP STUDENT LOAN TRUST 1999-B
UCC FINANCING STATEMENTS DATE
UCC-1 (Debtor: Key Bank USA) - Ohio Secretary of State [Submitted] 9/23/99
UCC-1 (Debtor: Key Bank USA) - Cuyahoga County, Ohio 9/23/99
Recorder's Office
UCC-1 (Debtor: Key Bank USA) - Delaware Secretary of State __/__/99
UCC-1 (Debtor: Key Bank USA) - New Castle County, Delaware __/__/99
Recorder's Office
UCC-1 (Debtor: Key Bank USA) - Secretary of the Commonwealth 9/24/99
of Pennsylvania
UCC-1 (Debtor: Key Bank USA) - Prothonotary of Dauphin County, 9/24/99
Pennsylvania
UCC-1 (Debtor: Key Bank USA) - Wisconsin Secretary of State 9/24/99
UCC-1 (Debtor: Key Bank USA) - Dane County, Wisconsin 9/24/99
Recorder's Office
UCC-1 (Debtor: Trust) - Ohio Secretary of State [Submitted] 9/23/99
UCC-1 (Debtor: Trust) - Cuyahoga County, Ohio Recorder's Office 9/23/99
UCC-1 (Debtor: Trust) - Delaware Secretary of State __/__/99
UCC-1 (Debtor: Trust) - New Castle County, Delaware Recorder's Office __/__/99
UCC-1 (Debtor: Trust) - Secretary of the Commonwealth 9/24/99
of Pennsylvania
UCC-1 (Debtor: Trust) - Prothonotary of Dauphin County, 9/24/99
Pennsylvania
UCC FINANCING STATEMENTS DATE
UCC-1 (Debtor: Trust) - Wisconsin Secretary of State 9/24/99
UCC-1 (Debtor: Trust) - Dane County, Wisconsin Recorder's Office 9/24/99
UCC-1 (Debtor: Trust) - New York Secretary of State 9/24/99
UCC-1 (Debtor: Trust) - New York County __/__/99
UCC-1 (Debtor: Trust) - Illinois Secretary of State 9/24/99
UCC-1 (Debtor: Trust) - Cook County, Illinois Recorder's Office 9/24/99
UCC-1 (Debtor: Eligible Lender Trustee) - Ohio Secretary of
State [Submitted] 9/23/99
UCC-1 (Debtor: Eligible Lender Trustee) - Cuyahoga County, Ohio 9/23/99
Recorder's Office
UCC-1 (Debtor: Eligible Lender Trustee) - Delaware Secretary of State __/__/99
UCC-1 (Debtor: Eligible Lender Trustee) - New Castle County, Delaware __/__/99
Recorder's Office
UCC-1 (Debtor: Eligible Lender Trustee) - Secretary of the Commonwealth 9/24/99
of Pennsylvania
UCC-1 (Debtor: Eligible Lender Trustee) - Prothonotary of
Dauphin County, Pennsylvania 9/24/99
UCC-1 (Debtor: Eligible Lender Trustee) - Wisconsin Secretary of State 9/24/99
UCC-1 (Debtor: Eligible Lender Trustee) - Dane County, Wisconsin 9/24/99
Recorder's Office
UCC-1 (Debtor: Eligible Lender Trustee) - New York Secretary of State 9/24/99
UCC-1 (Debtor: Eligible Lender Trustee) - New York County __/__/99
October 8, 1999UCC-1 (Debtor: Eligible Lender Trustee) - Illinois
Secretary of State 9/24/99
UCC-1 (Debtor: Eligible Lender Trustee) - Cook County, Illinois 9/24/99
Recorder's Office
UCC FINANCING STATEMENTS DATE
[Form of Opinion of Thompson Hine & Flory LLP]
September 30, 1999
Credit Suisse First Boston Corporation,
As Representative of the Underwriters
Park Avenue Plaza
Eleven Madison Avenue
New York, New York 10010-3629
Re: KeyCorp Student Loan Trust 1999-B; Prospectus Disclosure
Ladies and Gentlemen:
We have acted as counsel for Key Bank USA, National Association (the "Seller")
in connection with the issuance by the KeyCorp Student Loan Trust 1999-B of the
Floating Rate Asset Backed Notes in the aggregate principal amount of
$935,000,000 and the Floating Rate Asset Backed Certificates in the aggregate
principal amount of $65,000,000. This opinion letter is furnished to you
pursuant to Section 6(f) of the Underwriting Agreement (the "Underwriting
Agreement") dated September 30, 1999 between the Seller and Credit Suisse First
Boston Corporation, as Representative of the Underwriters ("Underwriters") and
Section 6(f) of the Certificate Underwriting Agreement ("Certificate
Underwriting Agreement") dated September 30, 1999 between the Seller and Credit
Suisse First Boston Corporation, as Representative of the Underwriters. Except
as otherwise indicated herein, capitalized terms used in this opinion letter are
defined as set forth in the Underwriting Agreement or the Certificate
Underwriting Agreement, as applicable.
In that capacity, we have participated in the preparation of (i) the Prospectus
dated September 20, 1999 (the "Base Prospectus") and (ii) the Prospectus
Supplement dated September 30, 1999 (the "Prospectus Supplement," and
collectively, the "Prospectus") and we have from time to time had discussions
with officers and employees of the Seller and your employees and counsel
concerning the information contained in the Prospectus.
Based on the foregoing, we are of the opinion that the statements contained in
the Base Prospectus under the headings "Student Loan Financing Business -
Insurance of Student Loans, Guarantors of Student Loans," "Description of the
Notes," "Description of the Certificates," "Description of the Transfer and
Servicing Agreements" and "Certain Legal Aspects of the Financed Student Loans,"
to the extent that they describe legal matters, present fair summaries of such
legal matters.
The statements contained in the Prospectus Supplement under the captions "The
Financed Student Loan Pool - Insurance of Student Loans; Guarantors of Student
Loans - GUARANTORS FOR THE FINANCED FEDERAL LOANS," "-GUARANTORS FOR THE
GUARANTEED PRIVATE LOANS," "Description of the Securities" and "Description of
the Transfer and Servicing Agreements," insofar as such statements purport to
summarize the provisions of the Guarantee Agreements, the Certificates, the
Notes, the Indenture, the Administration Agreement, the Sale and Servicing
Agreement and the Trust Agreement, present fair summaries of such provisions.
We have not independently verified and, except as described in the two
immediately preceding paragraphs, are not herein passing upon and do not assume
any responsibility for, the accuracy, completeness or fairness of the
information contained in the Prospectus. Based upon the participation and
discussions described above, however, no facts have come to our attention to
cause us to believe that the Prospectus (except for the financial statements,
financial schedules and other numerical, financial and statistical information
contained therein, and (other than any description of any agreements or
instruments referred to above) any information therein concerning ASA, CSAC,
HESC, HICA, NSLP, TERI, USAF or PHEAA in its capacity as Guarantor, but not in
its capacity as Servicer, as to all of which we express no view) as of its date
or the date hereof contains 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, in the light of the circumstances under which they were
made, not misleading.
This opinion is furnished by us, as counsel for the Seller to you, solely for
your benefit as purchasers of the Notes and the Certificates and solely with
respect to the initial purchase of the Notes and the Certificates by you, upon
the understanding that we are not hereby assuming any professional
responsibility to any other person.
Very truly yours,