Execution Copy
KEYCORP STUDENT LOAN TRUST
2006-A
$1,034,631,000
ASSET BACKED NOTES
KEYBANK NATIONAL
ASSOCIATION
KEY CONSUMER RECEIVABLES
LLC
NOTE UNDERWRITING
AGREEMENT
November 29, 2006
Deutsche Bank Securities Inc.
As Representative of the
several Underwriters
60 Wall Street
New York, New York 10005
Dear Sirs:
1.
Introductory . Key Consumer Receivables LLC, a Delaware
limited liability company, (the “Depositor”), proposes
to cause KeyCorp Student Loan Trust 2006-A (the
“Trust”) to issue and sell $84,000,000 principal amount
of its Floating Rate Class I-A-1 Asset Backed Notes (the
“Class I-A-1 Notes”), $149,170,000 principal amount of
its Floating Rate Class I-A-2 Asset Backed Notes (the
“Class I-A-2 Notes”), $7,211,000 principal amount of
its Floating Rate Class I-B Asset Backed Notes (the
“Class I-B Notes”), $160,927,000 principal amount of
its Floating Rate Class II-A-1 Asset Backed Notes (the
“Class II-A-1 Notes”), $197,000,000 principal amount of
its Floating Rate Class II-A-2 Asset Backed Notes (the
“Class II-A-2 Notes”), $146,730,000 principal amount of
its Floating Rate Class II-A-3 Asset Backed Notes (the
“Class II-A-3 Notes”), $140,274,000 principal amount of
its Floating Rate Class II-A-4 Asset Backed Notes (the
“Class II-A-4 Notes”), $101,664,000 principal
amount of its Floating Rate Class II-B Asset Backed Notes (the
“Class II-B Notes”) and $47,655,000 principal amount of
its Floating Rate Class II-C Asset Backed Notes (the
“Class II-C Notes” and together with the Class I-A-1
Notes, the Class I-A-2 Notes, the Class I-B Notes, the Class II-A-1
Notes, the Class II-A-2 Notes, the Class II-A-3 Notes, the Class
II-A-4 Notes and the Class II-B Notes, the “Notes”) to
the underwriters named in Schedule I hereto (the
“Underwriters”), for whom you (the
“Representative”) are acting as representative.
The Trust was formed pursuant to the Trust Agreement, dated
as of October 26, 2006, as amended and restated by the Amended and
Restated Trust Agreement, dated as of December 1, 2006 (as further
amended and supplemented from time to time, collectively, the
“Trust Agreement”) between the Depositor and The Bank
of New York (Delaware), as owner trustee (the “Owner
Trustee”). The Eligible Lender Trustee was
appointed pursuant to the Eligible Lender Trustee Agreement, dated
as of December 1, 2006 between the Depositor and JPMorgan Chase
Bank, National Association, as the eligible lender trustee (the
“Eligible Lender Trustee”). The assets of the
Trust include certain student loans (collectively, the
“Financed Student Loans”). Such Financed Student
Loans will be acquired by the Trust from the Depositor on or about
December 7, 2006 (the “Closing Date”). The
Financed Student Loans will be divided into two pools of student
loans, the first group will consist of Financed Student Loans that
are reinsured by the United States Department of Education (the
“Department”) (collectively, the “Financed
Federal Loans”). The second group will consist of (i)
Financed Student Loans that are not guaranteed by any party nor
reinsured by the Department (collectively “Financed
Unguaranteed Private Loans”) and (ii) Financed Student Loans
that are not reinsured by the Department or any other government
agency but are guaranteed by a private guarantor (collectively,
“Guaranteed Financed Private Loans” and together with
the Financed Unguaranteed Private Loans, the “Financed
Private Loans”). All Financed Student Loans that are
part of the first group described above are referred to as the
“Group I Student Loans” and all Financed Student Loans
that are part of the second group described above are referred to
as the “Group II Student Loans.” The Depositor
will purchase all of the Financed Student Loans from KeyBank
National Association, a national banking association
(“KBNA,” and in such capacity, the
“Seller”), pursuant to the Student Loan Transfer
Agreement, dated as of December 1, 2006 (the “Student Loan
Transfer Agreement”) among KBNA, the Depositor and JPMorgan
Chase Bank, National Association, as eligible lender trustee on
behalf of the Depositor (the “Depositor Eligible Lender
Trustee”). The Group I Notes will be entitled to
receive payments of interest and principal primarily from the
cashflow on the Group I Student Loans. The Group II Notes
will be entitled to receive payments of interest and principal
primarily from the cashflow on the Group II Student
Loans.
The assets of the Trust will further
include certain monies due and collected under the Financed Student
Loans on and after November 1, 2006, (the “Cutoff
Date”). The Financed Student Loans will be sold to the
Trust and the Eligible Lender Trustee on behalf of the Trust by the
Depositor and the Depositor Eligible Lender Trustee pursuant to the
Sale and Servicing Agreement, dated as of December 1, 2006 (as
amended and supplemented from time to time, the “Sale and
Servicing Agreement”), among the Trust, the Eligible Lender
Trustee, the Depositor Eligible Lender Trustee, KBNA, as master
servicer (in such capacity, the “Master Servicer”), the
Depositor and KBNA, as administrator (in such capacity, the
“Administrator”). The Master Servicer has also
entered into four certain subservicing agreements to have the
Financed Student Loans subserviced with each of Pennsylvania Higher
Education Assistance Agency, an agency of the Commonwealth of
Pennsylvania (“PHEAA” and, in its capacity as a
subservicer, a “Subservicer”) and Great Lakes
Educational Loan Services, Inc., a Wisconsin corporation
(“GLELSI” and in its capacity as a subservicer, a
“Subservicer”), two agreements with PHEAA regarding
certain of the Group I and Group II Student Loans, respectively,
and two agreements with GLELSI regarding certain of the Group I and
Group II Student Loans, respectively. The Notes will be
issued pursuant to the Indenture to be dated as of December 1, 2006
(as amended and supplemented from time to time, the
“Indenture”), among Deutsche Bank Trust Company
Americas as the indenture trustee (the “Indenture
Trustee”), the Trust and Deutsche Bank Trust Company Americas
as paying agent and note registrar. In addition, the
Administrator will perform certain administrative duties on behalf
of the Trust pursuant to the Administration Agreement, dated as of
December 1, 2006 (as amended and supplemented from time to time,
the “Administration Agreement”), between the Trust, the
Indenture Trustee and the Administrator. The Sale
and Servicing Agreement, the Indenture, the Trust Agreement, the
Student Loan Transfer Agreement and the Administration Agreement
are referred to herein as the “Basic
Documents.”
Simultaneously with the issuance and sale
of the Notes as contemplated herein, and pursuant to the Trust
Agreement, the Trust will issue its Trust Certificate (the
“Certificate”) representing a fractional undivided
residual beneficial interest in the Trust to the Depositor or its
designated affiliate.
At or prior to the time
when sales to investors of the Notes were first made to investors
by the several Underwriters for which Deutsche Bank Securities Inc.
is acting as Representative which was approximately 3:00 p.m. on
November 29, 2006 (the “Time of Sale”), the Depositor
had prepared or caused the preparation of the following information
(collectively, the “Time of Sale Information”): the
preliminary prospectus supplement dated November 6, 2006 relating
to the Notes and containing all information to be included in the
Final Prospectus (as defined below) other than pricing related
information and accompanied by the base prospectus dated November
6, 2006 and the supplement to the preliminary prospectus supplement
dated November 29, 2006 (collectively, along with information
referred to under the caption “Static Pools” therein
regardless of whether it is deemed a part of the Registration
Statement or Final Prospectus, the “Preliminary
Prospectus”). If, subsequent to the Time of Sale and
prior to the Closing Date (as defined below), the Depositor wishes
to convey additional or changed information in order to make the
Time of Sale Information, in the light of the circumstances under
which statements in the Time of Sale Information were made, not
misleading, and as a result investors in the Notes elect to
terminate their old “Contracts of Sale” (within the
meaning of Rule 159 under the Securities Act of 1933, as amended
(the “Securities Act”)) for any Notes and enter into
new Contracts of Sale with the Underwriters, then “Time of
Sale Information” will refer to the information conveyed to
investors at the time of entry into the first such new Contract of
Sale, in an amended Preliminary Prospectus approved by the
Depositor and the Representative that corrects such material
misstatements or omissions (a “Corrected Prospectus”)
and “Time of Sale” will refer to the time and date on
which such new Contracts of Sale were entered into.
Capitalized terms used and not otherwise
defined herein shall have the meanings given them in
Appendix A attached hereto.
The Company hereby agrees with the
several Underwriters as follows:
2.
Representations and Warranties of the
Depositor and KBNA .
(a) Each of the Depositor and KBNA, jointly and
severally, represents and warrants to and agrees with the several
Underwriters that:
(i)
A registration statement on Form S-3
(Registration No. 333-135860) 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 Securities Act of the
offering and sale of the Notes and has become effective and is
still effective as of the date hereof. A Preliminary
Prospectus was filed with the Commission pursuant to Rule 424(b) of
the Securities Act and the rules and regulations thereunder (the
“Rules and Regulations”). A final prospectus
supplement dated the date hereof, containing the same information
as the Preliminary Prospectus, but including the pricing related
information and accompanied by the base prospectus dated November
6, 2006 (together, along with information referred to under the
caption “Static Pools” therein regardless of whether it
is deemed a part of the Registration Statement or Final Prospectus,
the “Final Prospectus”, and together with the
Preliminary Prospectus and any Corrected Prospectus, the
“Prospectus”) will be filed with the Commission
pursuant to Rule 424(b) of the Rules and Regulations (“Rule
424(b)”) within the time period required thereby. The
Depositor may have filed or caused to have filed one or more
amendments thereto, each of which amendments has previously been
furnished to the Representative. The Depositor will next file
or cause to have filed with the Commission (i) after effectiveness
of such registration statement, a final base prospectus and a final
prospectus supplement relating to the Notes in accordance with
Rules 430A and 424(b)(1) or (4) under the Securities Act, or (ii) a
final base prospectus and a final prospectus supplement relating to
the Notes in accordance with Rules 415 and 424(b)(2) or (5).
Except as set forth in Section 5(B) hereof, no “issuer
free writing prospectus” as defined in Rule 433 of the Rules
and Regulations relating to the Notes has been or will be used by
or on behalf of the Depositor.
The Depositor or KBNA have included or
caused to be included in such registration statement, as amended at
the Effective Date (including without limitation each deemed
effective date with respect to the Depositor and the Underwriters
pursuant to Rule 430B(f)(2) of the Rules and Regulations), all
information (other than Rule 430A Information) required by the
Securities Act and the rules thereunder to be included in the
Prospectus with respect to the Notes and the offering thereof.
On the effective date of the Registration Statement, relating
to the Notes, such Registration Statement conformed and on the
Closing Date will conform in all material respects to the
requirements of the Securities Act. As filed such final
prospectus supplement shall include all Rule 430A Information,
together with all other such required information, with respect to
the Notes and the offering thereof and, except to the extent that
the Representative shall agree in writing to a modification, shall
be in all substantive respects in the form furnished to the
Representative prior to the Execution Time or, to the extent not
completed at the Execution Time, shall contain only such specific
additional information and other changes (beyond that contained in
the latest preliminary base prospectus and preliminary prospectus
supplement, if any, that have previously been furnished to the
Representative) as the Depositor or KBNA 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 Securities 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 without limitation each
deemed effective date with respect to the Depositor and the
Underwriters pursuant to Rule 430B(f)(2) of the Rules and
Regulations) including any Preliminary Prospectus Supplement.
“Preliminary Prospectus Supplement” shall mean
the preliminary prospectus supplement to the Base Prospectus which
describes the Notes and the offering thereof and is used prior to
filing of the Prospectus. “Rule 430A Information”
means information with respect to the Notes and the offering of the
Notes permitted to be omitted from the Registration Statement when
it becomes effective pursuant to Rule 430A. “Rule
415,” “Rule 424,” “Rule 430A” and
“Regulation S-K” refer to such rules or regulations
under the Securities 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 date of the first use of the
Preliminary Prospectus, as of the earlier of the date of the first
use of the final prospectus and the Time of Sale of the Notes, and
as of the Closing Date (as defined below), KBNA’s
representations and warranties in the Basic Documents to which it
is a party will be true and correct in all material respects.
The documents incorporated by reference in the Registration
Statement and Prospectus, at the time they were or hereafter are
filed with the Commission, complied and will comply in all material
respects to the requirements of the Securities Act or the Exchange
Act, as applicable, and the Rules and Regulations; and any further
documents so filed and incorporated by reference in the Prospectus,
when such documents are filed with the Commission, will conform in
all material respects to the requirements of the Securities Act or
the Exchange Act, as applicable, and the Rules and
Regulations.
(iii)
This Agreement has been duly authorized,
executed and delivered by KBNA and the Depositor. The
execution, delivery and performance of this Agreement and the
issuance and sale of the Notes and compliance with the terms and
provisions hereof will not result in a breach or violation of any
of the terms and provisions of, or constitute a default under, any
agreement or instrument to which KBNA or the Depositor are a party
or by which KBNA or the Depositor are bound or to which any of the
properties of KBNA or the Depositor are subject which could
reasonably be expected to have a material adverse effect on the
transactions contemplated herein. The Depositor has full
corporate power and authority to cause the Trust to authorize,
issue and sell the Notes, all as contemplated by this Agreement.
(iv)
Other than as contemplated by this
Agreement or as disclosed in the Prospectus, there is no broker,
finder or other party that is entitled to receive from KBNA, the
Depositor or any of their subsidiaries any brokerage or
finder’s fee or other fee or commission as a result of any of
the transactions contemplated by this Agreement.
(v)
All legal or governmental proceedings,
contracts or documents of a character required to be described in
the Registration Statement or the Prospectus or to be filed as an
exhibit to the Registration Statement have been so described or
filed as required.
(vi)
The assignment and delivery of the
Financed Student Loans to the Depositor and the Depositor Eligible
Lender Trustee by KBNA, pursuant to the Student Loan Transfer
Agreement, will vest in the Depositor and the Depositor Eligible
Lender Trustee all of KBNA’s right, title and interest
therein, or will result in a first priority perfected security
interest therein, in either case subject to no prior lien,
mortgage, security interest, pledge, adverse claim, charge or other
encumbrances.
(vii)
The Depositor’s assignment and
delivery of the Financed Student Loans to the Trust and 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 Depositor’s right, title and interest therein,
or will result in a first priority perfected security interest
therein, in either case subject to no prior lien, mortgage,
security interest, pledge, adverse claim, charge or other
encumbrance.
(viii)
The Trust’s grant of a security
interest in (x) the Financed Student Loans to the Indenture
Trustee, as of the Closing Date, 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.
(ix)
The Depositor is not, and after giving
effect to the offering and sale of the Notes, will not be an
“investment company” or an entity
“controlled” by an “investment company,” as
such terms are defined in the United States Investment Company Act
of 1940, as amended (the “Investment Company Act”), and
the exemption provided under Section 3(c)(5) of the Investment
Company Act is applicable to the Depositor with respect to the
offering and sale of the Notes.
(x)
The Time of Sale Information, at the Time
of Sale, did not, and neither the Time of Sale Information nor the
Final Prospectus at the Closing Date will 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;
provided that the Depositor makes no representation and warranty
with respect to any statements or omissions made in reliance upon
and in conformity with the Underwriter Information (as defined
herein).
(xi)
The Depositor is not, and on the date on
which the first bona fide offer of the Notes is made, will not be
an “ineligible issuer” as defined in Rule
405.
(b)
Each of KBNA and the Depositor hereby
agrees with the Underwriters that, for all purposes of this
Agreement, the only information furnished to the Depositor by the
Underwriters through the Representative specifically for use in the
Registration Statement, the Prospectus, or any amendment or
supplement thereto, or any related preliminary prospectus are the
statements under the caption “Underwriting” and under
the caption “Plan of Distribution” in the Prospectus
(the “Underwriter Information”).
3.
Purchase, Sale and Delivery of the
Notes . On the basis of
the representations, warranties and agreements herein contained,
but subject to the terms and conditions herein set forth, the
Depositor agrees to cause the Trust to sell to the Underwriters,
and the Underwriters agree, severally and not jointly, to purchase
from the Trust, at a purchase price of 99.820% of the principal
amount of the Class I-A-1 Notes, at a purchase price of 99.760% of
the principal amount of the Class I-A-2 Notes, at a purchase price
of 99.690% of the principal amount of the Class I-B Notes, at a
purchase price of 99.810% of the principal amount of the Class
II-A-1 Notes, at a purchase price of 99.780% of the principal
amount of the Class II-A-2 Notes, and at a purchase price of
99.760% of the principal amount of the Class II-A-3 Notes, at a
purchase price of 99.720% of the principal amount of the Class
II-A-4 at a purchase price of 99.650% of the principal amount of
the Class II-B Notes Notes, at a purchase price of 99.550% of the
principal amount of the Class II-C Notes the respective principal
amounts of each class of Notes set forth opposite the names of the
Underwriters in Schedule I hereto. In addition, the
Depositor agrees to cause Deutsche Bank Securities Inc. and KeyBanc
Capital Markets, a Division of McDonald Investments Inc. to be paid
an aggregate structuring fee in connection with the structuring of
the Notes of $1,034,631.
The Depositor will deliver or cause the
delivery of the Notes to the Representative (or its designee) for
the respective accounts of the Underwriters, against payment of the
purchase price to or upon the order of the Depositor or its
designee by wire transfer or check in Federal (same day) Funds, at
the office of McKee Nelson LLP, One Battery Park Plaza, 34th Floor,
New York, New York 10004, on December 7, 2006, or at such other
time not later than seven full Business Days thereafter as the
Representative and the Depositor determine, such time being herein
referred to as the “Closing Date.” The Notes to
be so delivered will be initially represented by one or more Notes
of each class registered in the name of Cede & Co., the
nominee of The Depository Trust Company (“DTC”).
The interests of beneficial owners of the Notes will be
represented by book entries on the records of DTC and participating
members thereof. Definitive Notes will be available only
under the limited circumstances specified in the
Indenture.
4.
Offering by the
Underwriters . It is
understood that, provided that the Registration Statement remains
effective, the several Underwriters propose to offer the Notes for
sale to the public (which may include selected dealers) as set
forth in the Prospectus.
5A.
Covenants of the Depositor and
KBNA . Each of KBNA and
the Depositor, severally and jointly, agrees with the several
Underwriters that:
(a)
Prior to the termination of the offering
of the Notes, the Depositor will not file or cause to be filed any
amendment of the Registration Statement or supplement to the
Prospectus unless the Depositor 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 Depositor will file or cause to be filed 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 Depositor will advise the
Representative or cause the Representative to be advised promptly
of any proposal to amend or supplement the registration statement
as filed or the related prospectus supplement 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 Depositor will also advise the Representative or cause the
Representative to be advised or cause the Representative to be
advised 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 Depositor will also advise
the Representative promptly of the effectiveness of the
Registration Statement (if the Effective Time is subsequent to the
execution of this Agreement) and of any amendment or supplement to
the Registration Statement or the Prospectus and of the issuance by
the Commission of any stop order suspending the effectiveness of
the Registration Statement or the institution or threat of any
proceeding for that purpose and the Depositor will use its best
efforts to prevent the issuance of any such stop order and to
obtain as soon as possible the lifting of any issued stop
order.
(c)
If, at any time when a prospectus
relating to the Notes is required to be delivered under the
Securities 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 Securities Act or the Exchange Act, the Depositor
promptly will prepare and file, or cause to be prepared and filed,
with the Commission an amendment or supplement which will correct
such statement or omission, or an amendment or supplement which
will effect such compliance. Neither the consent of the
Representative to, nor the delivery of the several Underwriters of,
any such amendment or supplement shall constitute a waiver of any
of the conditions set forth in Section 6 hereof.
(d)
As soon as practicable, but not later
than the Availability Date (as defined below), either KBNA or the
Depositor will cause the Trust to make generally available to the
holders of the Notes an earnings statement of the Trust covering a
period of at least twelve months beginning after the Effective Date
which will satisfy the provisions of Section 11(a) of the
Securities 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 Depositor will furnish or cause to be
furnished 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)
For a period from the date of this
Agreement until the retirement of the Notes, or until such time as
the several Underwriters shall cease to maintain a secondary market
in the Notes, whichever occurs first, KBNA will deliver or cause to
be delivered 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.
(g)
So long as any of the Notes are
outstanding, either KBNA or the Depositor will furnish or cause to
be furnished to the Representative (i) as soon as practicable
after the end of the fiscal year all documents required to be
distributed to the holders of the Notes or filed with the
Commission on behalf of the Trust pursuant to the Exchange Act or
any order of the Commission thereunder and (ii) from time to
time, any other information concerning KBNA or the Depositor as the
Representative may reasonably request only insofar as such
information reasonably relates to the Registration Statement or the
transactions contemplated by the Basic Documents.
(h)
On or before the Closing Date, the
Depositor shall mark its accounting and other records, if any,
relating to the Financed Student Loans and shall instruct the
Master Servicer (which shall cause each Subservicer) to mark the
computer records of the Master Servicer (or such Subservicer)
relating to the Financed Student Loans to show the absolute
ownership by the Trust and the Eligible Lender Trustee on behalf of
the Trust of the Financed Student Loans, and from and after the
Closing Date the Depositor shall not and shall require that the
Master Servicer (which shall ensure that any Subservicer) shall not
take any action inconsistent with the ownership by the Trust and
the Eligible Lender Trustee on behalf of the Trust of such Financed
Student Loans, other than as permitted by the Sale and Servicing
Agreement.
(i)
To the extent, if any, that the rating
provided with respect to the Notes by the Rating Agencies that
initially rate the Notes is conditional at the time of issuance of
the Notes upon the furnishing of documents or the taking of any
other actions by KBNA or the Depositor agreed upon on or prior to
the Closing Date, KBNA and the Depositor, as applicable, shall
furnish or cause to be furnished such documents and take any such
other actions. A copy of any such document shall be provided
to the Representative at the time it is delivered to the Rating
Agencies.
(j)
For the period beginning on the date of
this Agreement and ending 90 days after the Closing Date, none of
KBNA, the Depositor or any trust originated, directly or
indirectly, by KBNA or the Depositor will, without the prior
written consent of the Representative, offer to sell or sell notes
(other than the Notes) collateralized by, or certificates
evidencing an ownership interest in, student loans; provided
, however , that this shall not be construed to prevent the
sale of student loans by the Depositor.
(k)
The Depositor will apply the net proceeds
of the offering and the sale of the Notes that it receives in the
manner set forth in the Prospectus under the caption “Use of
Proceeds.”
(l)
KBNA will pay or cause to be paid all
expenses incident to the performance of its and the
Depositor’s obligations under this Agreement, including
(i) the printing and filing of the documents (including the
Registration Statement and Prospectus) (ii) the preparation,
issuance and delivery of the Notes to the Representative,
(iii) the fees and disbursements of KBNA’s and the
Depositor’s counsels and accountants, (iv) the printing
and delivery to the Representative of copies of the Registration
Statement as originally filed and of each amendment thereto,
(v) the printing and delivery to the Representative of copies
of any blue sky or legal investment survey prepared in connection
with the Notes, (vi) any fees charged by rating agencies for
the rating of the Notes, (vii) the fees and expenses, if any,
incurred with respect to any filing with the National Association
of Securities Dealers, Inc., and (viii) the fees and expenses
of Thompson Hine LLP in its role as counsel to the Trust incurred
as a result of providing the opinions required by Section 6(i)
hereof.
(m)
The Depositor shall file the final
pricing information, which may be posted on a Bloomberg screen or
distributed via Bloomberg.
5B.
Certain Agreements of the
Underwriters . Each of
the several Underwriters, for itself only, represents, warrants and
agrees with the Depositor as follows:
Other than the Preliminary Prospectus and
the Final Prospectus, each Underwriter has not conveyed and will
not convey, without the Depositor’s prior written approval,
to any potential investor in the Notes any other written material
of any kind relating to any “issuer information” as
defined in Rule 433(h)(2) of the Securities Act, or the Notes that
would constitute a “prospectus” or a “free
writing prospectus,” each as defined in the Securities Act
(“Prohibited Materials”), including, but not limited to
the materials constituting a road show presentation to Potential
Investors (other than use of such materials as part of each road
show, live or electronic, in which representatives of KBNA have
participated) and any “ABS informational and computational
materials” within the meaning of Item 1101(a) of Regulation
AB promulgated by the Commission under the Securities Act and the
Exchange Act; provided, however, that you may convey to one or more
of your Potential Investors (i) information permitted in Rule 134
under the Securities Act or previously included in the Preliminary
Prospectus and (ii) a free writing prospectus, as defined in Rule
405 under the Securities Act, containing only: (a) a column or
other entry showing the status of the subscriptions for each class
of the Notes (both for the issuance as a whole and for each
underwriter’s specific retention) and confirmation
information, (b) expected settlement date and expected and actual
pricing parameters of the Notes, (c) information relating to the
class, size, rating, price, CUSIP, coupon, yield, spread,
benchmark, status of the Notes, the expected final payment date,
the trade date and payment window of one or more classes of Notes,
and the weighted average life of any class of Notes, (d) expected
maturities of any class of Notes, and (e) the eligibility of the
Notes to be purchased by ERISA plans provided that, in the case of
clauses (i) and (ii), such information is posted on a Bloomberg
screen or distributed via Bloomberg and, in the case of clause
(ii), other than the final pricing terms, which will be posted on a
Bloomberg screen or distributed via Bloomberg, such free writing
prospectus shall not contain information that would require the
issuer to file such free writing prospectus pursuant to Rule 433
under the Securities Act.
6.
Conditions of the Obligations of the
Underwriters . The
obligations of the several Underwriters to purchase and pay for the
Notes will be subject to the accuracy of the representations and
warranties on the part of KBNA and the Depositor herein, to the
accuracy of the written statements of officers of KBNA and the
Depositor made pursuant to the provisions of this Section, to the
performance by KBNA and the Depositor of their obligations
hereunder and to the following additional conditions
precedent:
(a)
If the Effective Time is not prior to the
execution and delivery of this Agreement, the Effective Time shall
have occurred not later than 6:00 p.m., New York City time, on
the date of this Agreement or such later time or date as shall have
been consented to by the Representative.
(b)
If the Effective Time is prior to the
execution and delivery of this Agreement, the Prospectus and any
supplements thereto shall have been filed with the Commission in
accordance with the Rules and Regulations and Section 5(a)
hereof. Prior to the Closing Date, no stop order suspending
the effectiveness of the Registration Statement shall have been
issued and no proceedings for that purpose shall have been
instituted or, to the knowledge of the Seller or the
Representative, shall be contemplated by the Commission.
(c)
The Representative shall have received a
letter, dated on or prior to the Closing Date of Ernst & Young
LLP on behalf of KBNA confirming that such accountants are
independent public accountants within the meaning of the Securities
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,
KBNA or KeyCorp which, in the judgment of the Representative,
materially impairs the investment quality of the Notes or makes it
impractical or inadvisable to market the Notes; (ii) any
downgrading in the rating of any debt securities of KBNA or KeyCorp
by any “nationally recognized statistical rating
organization” (as defined for purposes of Rule 436(g)
under the Securities Act), or any public announcement that any such
organization has under surveillance or review its rating of any
debt securities of KBNA 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 KBNA or KeyCorp on any exchange or in the
over-the-counter market; (v) any banking moratorium declared
by Federal or New York authorities; or (vi) any outbreak or
escalation of hostilities involving the United States or the
declaration by the United States of a national emergency or war, if
the effect of any such event specified in this clause (vi) in the
judgment of the Representative makes it impracticable or
inadvisable to proceed with the public offering or the delivery of
the Notes on the terms and in the manner contemplated in the
Prospectus.
(e)
The Representative shall have received an
opinion of internal counsel of KBNA, as counsel for (i) KBNA, as
the Seller, the Master Servicer and the Administrator and (ii) the
Depositor, dated the Closing Date, substantially in the form
attached hereto as Exhibit A, or as is otherwise satisfactory
in form and substance to the Representative and its
counsel.
(f)
The Representative shall have received
one or more opinions of Thompson Hine LLP, counsel to the Depositor
and 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, regarding certain true sale,
bankruptcy, insolvency and perfection of security interest matters
regarding the Seller, the Depositor and the Trust.
(g)
[Reserved].
(h)
[Reserved].
(i)
The Representative shall have received an
opinion addressed to the several Underwriters of Thompson Hine 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 Status” and “Federal
Tax Consequences for Trusts in which all Certificates are Retained
by the Seller, the Depositor or a Third Party Originator”
accurately describe the material Federal income tax consequences to
holders of the Notes, and the statements in the Prospectus under
the headings “Summary of Terms—ERISA
Considerations” and “ERISA Considerations” to the
extent that they constitute statements of matters of law or legal
conclusions with respect thereto, have been prepared or reviewed by
such counsel and accurately describe the material consequences to
holders of the Notes under ERISA. Thompson Hine 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
Financed Student Loans.
(j)
The Representative shall have received an
opinion addressed to the several Underwriters of McKee Nelson LLP,
in its capacity as special counsel to the several Underwriters,
dated the Closing Date, with respect to the validity of the Notes
and such other related matters as the Representative shall
reasonably require and each of KBNA and the Depositor shall have
furnished or caused to be furnished to such counsel such documents
as they may reasonably request for the purpose of enabling them to
pass upon such matters.
(k)
The Representative shall have received an
opinion of the law offices of John Dean, 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 Programs,
(including the Coordination Agreements) and the Relevant Documents
(as defined in such opinion), and the transactions contemplated by
the Relevant Documents, conform in all material respects to the
applicable requirements of the Higher Education Act, and that, upon
the due authorization, execution and delivery of the Relevant
Documents and the consummation of such transactions, the Financed
Federal Loans, legal title to which will be held by the Eligible
Lender Trustee on behalf of the Trust, will qualify, subject to
compliance with all applicable origination and servicing
requirements, for all applicable federal assistance payments,
including federal reinsurance and federal interest subsidies and
special allowance payments;
(ii)
such counsel has examined the Prospectus,
and nothing has come to such counsel’s attention that would
lead such counsel to believe that, solely with respect to the
Higher Education Act and the student loan business, the Prospectus
or any amendment or supplement thereto as of the respective dates
thereof or on the Closing Date contains an untrue statement of a
material fact or omits to state a material fact necessary in order
to make the statements therein not misleading; and
(iii)
the Eligible Lender Trustee is an
“eligible lender” as such term is defined in Section
435(d) of the Higher Education Act for purposes of holding legal
title to the Financed Federal Loans.
(l)
The Representative shall have received an
opinion of counsel to PHEAA, in its capacity as Subservicer and as
Guarantor, 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 Subservicing Agreements and
the Guarantee Agreement (and the agreements with the Department
under Section 428 of the Higher Education Act to the extent
relevant to PHEAA’s obligations under such Guarantee
Agreement) to which it is a party, and had at all relevant times,
and now has, the power, authority and legal right to service the
Financed Student Loans it is servicing, to guarantee the Financed
Federal Loans covered by such Guarantee Agreement and to receive,
subject to compliance with all applicable conditions, restrictions
and limitations of the Higher Education Act, reinsurance payments
from the Department with respect to claims paid by it on such
Financed Federal Loans.
(ii)
PHEAA is duly qualified to do business
and is in good standing, and has obtained all necessary licenses
and approvals in each jurisdiction in which failure to qualify or
to obtain such license or approval would render any Financed
Student Loan or PHEAA’s obligation under its Guarantee
Agreement unenforceable by or on behalf of the Trust.
(iii)
Each of the PHEAA Subservicing Agreements
and the Guarantee Agreement (and the agreements with the Department
under Section 428 of the Higher Education Act to the extent
relevant to PHEAA’s obligations under such Guarantee
Agreement) to which 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 Subservicing Agreements or the Guarantee
Agreement to which it is a party, nor the consummation by PHEAA of
the transactions contemplated therein nor the fulfillment of the
terms thereof by PHEAA will conflict with, result in a breach,
violation or acceleration of, or constitute a default under, any
term or provision of PHEAA's authorizing legislation 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 Subservicing Agreements or
the Guarantee Agreement (or the agreements with the Department
under Section 428 of the Higher Education Act to the extent
relevant to PHEAA’s obligations under such Guarantee
Agreement) to which it is a party.
(vi)
Nothing has come to such counsel’s
attention that would lead such counsel to believe that the
representations and warranties of PHEAA contained in the PHEAA
Subservicing Agreements are other than as stated
therein.
(m)
The Representative shall have received an
opinion of counsel to GLELSI in its capacity as a Subservicer,
dated the Closing Date and satisfactory in form and substance to
the Representative and its counsel:
(i)
GLELSI 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 GLELSI Subservicing Agreements, 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 GLELSI Subservicing Agreements has
been duly authorized, executed and delivered by GLELSI and is the
legal, valid and binding obligation of GLELSI enforceable against
GLELSI 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
GLELSI of the GLELSI Subservicing Agreements, nor the consummation
by GLELSI of the transactions contemplated therein nor the
fulfillment of the terms thereof by GLELSI 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 GLELSI or of any indenture or other
agreement or instrument to which GLELSI is a party or by which
GLELSI is bound, or result in a violation of or contravene the
terms of any statute, order or regulation applicable to GLELSI of
any court, regulatory body, administrative agency or governmental
body having jurisdiction over GLELSI.
(iv)
There are no actions, proceedings or
investigations pending or, to the best of such counsel’s
knowledge after due inquiry, threatened against GLELSI before or by
any governmental authority that might materially and adversely
affect the performance by GLELSI of its obligations under, or the
validity or enforceability of, the GLELSI Subservicing
Agreements.
(v)
Nothing has come to such counsel’s
attention that would lead such counsel to believe that the
representations and warranties of GLELSI contained in the GLELSI
Subservicing Agreements are other than as stated
therein.
(n)
The Representative shall have received an
opinion of counsel to the American Student Assistance,
(“ASA”) dated the Closing Date and reasonably
satisfactory in form and substance to the Representative and its
counsel.
(o)
The Representative shall have received an
opinion of counsel to the National Student Loan Program
(“NSLP”), dated the Closing Date and reasonably
satisfactory in form and substance to the Representative and its
counsel.
(p)
The Representative shall have received an
opinion of counsel to the California Student Aid Commission
(“CSAC”), dated the Closing Date and reasonably
satisfactory in form and substance to the Representative and its
counsel.
(q)
The Representative shall have received an
opinion of counsel to Colorado Student Loan Program
(“CSLP”), dated the Closing Date and reasonably
satisfactory in form and substance to the Representative and its
counsel.
(r)
The Representative shall have received an
officer’s certificate from the New York State Higher
Education Services Corporation (“NYHESC”), dated the
Closing Date and reasonably satisfactory in form and substance to
the Representative and its counsel.
(s)
The Representative shall have received an
opinion of counsel to the Educational Credit Management Corporation
(“ECMC”), dated the Closing Date and reasonably
satisfactory in form and substance to the Representative and its
counsel.
(t)
The Representative shall have received an
opinion of counsel to United Student Aid Funds, Inc.
(“USAF”), dated the Closing Date and reasonably
satisfactory in form and substance to the Representative and its
counsel.
(u)
The Representative shall have received an
officer’s certificate from the Michigan Higher Education
Assistance Authority (“MHEAA”), dated the Closing Date
and reasonably satisfactory in form and substance to the
Representative and its counsel.
(v)
The Representative shall have received an
opinion of counsel to Great Lakes Higher Education Guaranty
Corporation (“GLHEGC”), dated the Closing Date and
satisfactory in form and substance to the Representative and its
counsel, to the effect that:
(i)
GLHEGC has been duly organized and is
validly existing as a nonstock corporation pursuant to Chapter 181
of the Wisconsin Statutes.
(ii)
GLHEGC, and its officers acting on its
behalf, had full legal authority to execute and deliver the
Contract of Guarantee with the Trust and the Guarantor Documents
(each as defined in such opinion) as of the respective dates of
their execution.
(iii)
GLHEGC had authority to engage in the
transaction agreed to in the Contract of Guarantee. The
Contract of Guarantee was duly executed and delivered by officers
acting on valid authority and with the approval of
GLHEGC.
(iv)
Except as otherwise qualified herein,
GLHEGC is in compliance with all material provisions of the
Guarantor Documents, and is in substantial compliance with the
Higher Education Act and the current Title IV Regulations with
respect to GLHEGC’s guarantee program insofar as the same
pertain to the Guarantor Documents.
(v)
The federal reinsurance, special
allowances and interest benefits on student loans guaranteed by
GLHEGC are in full force and effect to the fullest extent permitted
by the Higher Education Act.
(vi)
Subject to the limitations of the Higher
Education Act, GLHEGC has full power and authority to execute,
deliver and perform its obligations under, and has authorized,
executed and delivered, the Guarantor Documents, and the Guarantor
Documents constitute legal, valid and binding obligations of GLHEGC
enforceable against GLHEGC in accordance with their terms, except
as limited by applicable insolvency, reorganization, moratorium,
liquidation, readjustment of debt or similar laws affecting the
enforcement of the rights of creditors generally and subject to
general equity principles. Subject to the limitations of the
Higher Education Act, the execution and delivery by GLHEGC of the
Guarantor Documents did not and will not and the consummation of
the transactions contemplated thereby and the satisfaction of the
terms thereof will not, conflict with or result in a breach of any
of the terms, conditions or provisions of the articles or bylaws or
to the knowledge of such counsel, any decree, order, statute, rule
or governmental regulation applicable to GLHEGC or any restriction
contained in any contract, agreement or instrument to which GLHEGC
is a party or by which it is bound or constitute a default under
any of the foregoing.
(vii)
To the best of such counsel’s
knowledge, except with reference to certain litigation, and other
actions alleging borrower and/or school based defenses that could
result in denial of reinsurance under the Guarantor Documents based
on various state law theories causing material losses to lenders
and/or guarantors, and except as otherwise described in the
Prospectus Supplement, there is no litigation pending or threatened
in any court (a) in any way contesting or affecting the
validity or enforceability of the Guarantor Documents or
(b) against GLHEGC which may materially adversely affect the
security for the Notes or materially adversely affect GLHEGC or
GLHEGC’s student loan program.
(w)
The Representative shall have received an
opinion of counsel to Illinois Student Assistance Commission
(“ISAC”), dated the Closing Date and reasonably
satisfactory in form and substance to the Representative and its
counsel.
(x)
The Representative shall have received an
opinion of counsel to Kentucky Higher Education Assistance
Authority (“KHEAA”), dated the Closing Date and
reasonably satisfactory in form and substance to the Representative
and its counsel.
(y)
The Representative shall have received an
officer’s certificate from the Northwest Education Loan
Association (“NELA”), dated the Closing Date and
reasonably satisfactory in form and substance to the Representative
and its counsel.
(z)
The Representative shall have received an
officer’s certificate from Texas Guaranteed Student Loan
Corporation (“TGSLC”), dated the Closing Date and
reasonably satisfactory in form and substance to the Representative
and its counsel.
(aa)
The Representative shall have received an
opinion of counsel to The Education Resources Institute, Inc., a
Massachusetts non-profit corporation (“TERI”), dated
the Closing Date and reasonably satisfactory in form and substance
to the Representative and its counsel.
(bb)
The Representative shall have received an
opinion of Seward & Kissel, counsel to the Indenture Trustee,
dated the Closing Date and satisfactory in form an
