Exhibit 4.6
EXECUTION COPY
FIFTH TERMS SUPPLEMENT
TO THE
TRUST AGREEMENT
DATED AS OF MAY 15, 1998
between
EMT CORP.
as Issuer
and
BANK ONE TRUST COMPANY, N.A.
as Trustee
Dated as of June 1, 2000
Securing
$636,000,000
STUDENT LOAN ASSET-BACKED
AUCTION RATE NOTES
2000-I SENIOR SERIES A-16 through A-22
and
2000-I SENIOR SUBORDINATE SERIES B-3
TABLE OF CONTENTS
Page
ARTICLE I. DEFINITIONS.........................................1
ARTICLE II. AUTHORIZATION, TERMS AND ISSUANCE...................8
Section 2.1. Authorization Of 2000-I Notes.......................8
Section 2.2. Purposes............................................9
Section 2.3. Terms Of 2000-I Notes Generally.....................9
Section 2.4. 2000-I Notes........................................9
Section 2.5. Series Interest Rate...............................12
Section 2.5.1. Determining The Interest Rate......................12
Section 2.5.7. Changes In The Auction Date........................25
Section 2.6. Additional Provisions Regarding The Series
Interest Rates On The 2000-I Notes.................25
Section 2.7. Qualifications Of Market Agent.....................26
Article Iii. Distributions......................................26
Section 3.1. Distributions Of Interest And Principal............26
Section 3.2. Selection Of Notes To Receive Payments
Of Principal.......................................27
Article Iv. Miscellaneous......................................28
Section 4.1. Authority For This Fifth Terms Supplement..........28
Section 4.2. COUNTERPARTS.......................................28
Section 4.3. Fifth Terms Supplement Constitutes A Security
Agreement..........................................28
Section 4.4. GOVERNING LAW......................................28
Section 4.5. Reports To Rating Agencies.........................28
Section 4.6. Ratification Of Trust Agreement....................28
Section 4.7. RECYCLING PERIOD...................................28
Section 4.8. Master Promissory Notes...............................29
-i-
FIFTH TERMS SUPPLEMENT, dated as of June 1, 2000, between EMT
CORP., an Indiana corporation (the "Issuer") acting through KEYBANK INDIANA,
N.A. not in its individual capacity but solely as eligible lender trustee (the
"Eligible Lender Trustee") pursuant to a certain trust agreement, dated as of
May 15, 1998, by and between the Issuer and the Eligible Lender Trustee (the
"Eligible Lender Trust Agreement") and BANK ONE TRUST COMPANY, N.A. (successor
to NBD Bank, N.A.) a national banking association, duly established existing and
authorized to accept and execute trusts of the character herein set out under
and by virtue of the laws of the United States of America, with its designated
trust office in Indianapolis Indiana (the "Trustee") as Trustee under a Trust
Agreement dated as of May 15, 1998, as amended and supplemented to the date
hereof including by this Fifth Terms Supplement, by and between the Issuer and
such Trustee (the "Trust Agreement").
PRELIMINARY STATEMENT
Sections 2.1 and 7.1 of the Trust Agreement provide, among other
things, that the Issuer and the Trustee may enter into an instrument
constituting a Supplemental Trust Agreement supplemental to the Trust Agreement
for the purpose of authorizing one or more Series of Notes and to specify
certain terms of such Series of Notes. The Issuer has duly authorized the
execution and delivery of seven Series of Senior Notes in an aggregate principal
amount not to exceed $636,000,000 to be known as the Issuer's Student Loan
Asset-Backed Auction Rate Notes, 2000-I Senior Series A-16 in the aggregate
principal amount of $98,000,000 (the "Series A-16 Notes") 2000-I Senior Series
A-17 in the aggregate principal amount of $98,000,000 (the "Series A-17 Notes"),
2000-I Senior Series A 18 in the aggregate principal amount of $98,000,000 (the
Series A-18 Notes ), 2000-I Senior Series A-19 in the aggregate principal amount
of $98,000,000 (the "Series A-19 Notes"), 2000-I Senior Series A-20 in the
aggregate principal amount of $98,000,000 (the "Series A-20 Notes"), 2000-I
Senior Series A-21 in the aggregate principal amount of $49,000,000 (the "Series
A-21 Notes"), and 2000-I Senior Series A-22 in the aggregate principal amount of
$49,000,000 (the "Series A-22 Notes"). The Series A-16 Notes, Series A-17 Notes,
Series X- 00 Notes, Series A-19 Notes, Series A-20 Notes, Series A-21 Notes and
Series A 22 Notes are referred to herein as the 2000-I Senior Notes. The Issuer
has also duly authorized the execution and delivery of a Series of Senior
Subordinate Notes in an aggregate principal amount of $48,000,000 to be known as
the Issuer's Student Loan Asset- Backed Auction Rate Notes, 2000-I Senior
Subordinate Series B-3 (the "Series B-3 Notes", and, collectively with the 2000
Senior Notes the "2000-I Notes"). The Issuer and the Trustee are executing and
delivering this Fifth Terms Supplement as a subsequent Supplemental Trust
Agreement in order to provide for the 2000-I Notes.
ARTICLE I.
DEFINITIONS
Capitalized terms used in this Fifth Terms Supplement and not
otherwise defined herein shall have the meaning set forth for such term in the
Trust Agreement.
"ALL HOLD RATE" means the Applicable LIBOR Rate less .20%.
"APPLICABLE LIBOR RATE" means with respect to the 2000-I Notes
(i) for Auction
Periods of 35 days or less, One-Month LIBOR, (ii) for Auction Periods of more
than 35 days but less than 91 days, Three-Month LIBOR, (iii) for Auction
Periods of more than 90 days but less than 181 days, Six-Month LIBOR, and (iv)
for Auction Periods of more than 180 days, One-Year LIBOR. As used in this
definition and otherwise herein, the terms "ONE-MONTH LIBOR," "THREE-MONTH
LIBOR," "SIX-MONTH LIBOR," or "ONE-YEAR LIBOR" mean the rate of interest per
annum equal to the rate per annum at which United States dollar deposits having
a maturity of one-month, three months, six months, or one year, respectively,
are offered to prime banks in the London interbank market which appear on
Telerate Page 3750 as of approximately 11:00 a.m., London time, on the Series
Rate Determination Date. If such rate does not appear on Telerate Page 3750,
the rate for that day will be determined on the basis of the Reuters Screen
LIBOR Page. If at least two such quotations appear on Telerate Page 3750,
One-Month LIBOR, Three-Month LIBOR, Six-Month LIBOR or One-Year LIBOR,
respectively, will be the arithmetic mean (rounded upwards, if necessary, to
the nearest one-hundredth of one percent) of such offered rates. If fewer than
two such quotes appear, One-Month LIBOR, Three-Month LIBOR, Six-Month LIBOR or
One-Year LIBOR, respectively, with respect to such Series Interest Period will
be determined at approximately 11:00 a.m., London time, on such Series Rate
Determination Date on the basis of the rate at which deposits in United States
dollars having a maturity of one month, three months, six months or one year,
respectively, are offered to prime banks in the London interbank market by four
major banks in the London interbank market selected by the Auction Agent or the
Trustee, as applicable, and in a principal amount of not less than U.S.
$1,000,000 and that is representative for a single transaction in such market
at such time. The Auction Agent or the Trustee, as applicable, are to request
the principal London office of each of such banks to provide a quotation of its
rate. If at least two quotations are provided One-Month LIBOR, Three-Month
LIBOR, Six-Month LIBOR or One-Year LIBOR, respectively, will be the arithmetic
mean (rounded upwards, if necessary, to the nearest one-hundredth of one
percent) of such offered rates. If fewer than two quotations are provided,
One-Month LIBOR, Three-Month LIBOR, Six-Month LIBOR or One-Year LIBOR,
respectively, with respect to such Series Interest Period will be the
arithmetic mean (rounded upwards, if necessary to the nearest one-hundredth of
one percent) of the rates quoted at approximately 11:00 a.m., New York City
time on such Series Rate Determination Date by three major banks in New York,
New York selected by the Auction Agent or the Trustee, as applicable, for loans
in United States dollars to leading European banks having a maturity of one
month, three months, six months or one year, respectively, and in a principal
amount equal to an amount of not less than U.S. $1,000 000 and that is
representative for a single transaction in such market at such time; provided,
however, that if the banks selected as aforesaid are not quoting as mentioned
in this sentence, One-Month LIBOR, Three-Month LIBOR, Six-Month LIBOR or
One-Year LIBOR, respectively, in effect for the applicable Series Interest
Period will be One-Month LIBOR, Three-Month LIBOR, Six-Month LIBOR or One-Year
LIBOR, respectively, in effect for the immediately preceding Series Interest
Period.
"AUCTION" means the implementation of the Auction Procedures
on an Auction Date.
"AUCTION AGENCY AGREEMENT" means the initial Auction Agency
Agreement unless and until a substitute Auction Agency Agreement is entered
into, after which "Auction Agency Agreement" shall mean such substitute Auction
Agency Agreement.
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"AUCTION AGENT" means Bankers Trust Company, a New York
banking corporation, its successors and assigns, as the initial Auction Agent
under the initial Auction Agency Agreement unless and until a substitute Auction
Agency Agreement becomes effective, after which "Auction Agent" shall mean the
substitute Auction Agent.
"AUCTION AGENT FEE" has the meaning set forth in the Auction
Agency Agreement.
"AUCTION AGENT FEE RATE" has the meaning set forth in the
Auction Agency Agreement.
SECTION 1.1. "AUCTION DATE" means initially, June 22, 2000
with respect to the Series A-16 Notes, July 10, 2000 with respect to the Series
A-17 Notes, July 17, 2000 with respect to the Series A-18 Notes, July 24, 2000
with respect to the Series A-19 Notes, July 20, 2000 with respect to the Series
A-20 Notes, July 17, 2000 with respect to the Series A-21 Notes, July 25, 2000
with respect to the A-22 Notes and July 10, 2000 with respect to the Series B-3
Notes and thereafter, the Business Day immediately preceding the first day of
each Auction Period for each respective Series, other than:
(a) with respect to any Series of Notes, each
Auction Period commencing after the
ownership of such Series of Notes is no
longer maintained in Book-Entry Form by the
Securities Depository;
(b) each Auction Period commencing after and
during the continuance of a Payment Default;
or
(c) each Auction Period commencing less than two
Business Days after the cure or waiver of a
Payment Default.
Notwithstanding the foregoing, the Auction Date for one or more Auction Periods
may be changed pursuant to Section 2.5.6 of this Terms Supplement.
"AUCTION PERIOD" means, with respect to each Series of
2000-I Notes, the Series Interest Period applicable to such Series of Notes
during which time the related Series Interest Rate is determined pursuant to
Section 2.5.1 hereof, which Auction Period (after the Initial Period for such
Series) initially shall consist of 7 days with respect to the Series A-16 Notes
and 28 days with respect to the Series A-17 Notes, the Series A-18 Notes, Series
A-19 Notes Series A-20 Notes Series A-21, Notes Series A-22 Notes and Series B-3
Notes and may be adjusted pursuant to Section 2.5.6 hereof.
"AUCTION PERIOD ADJUSTMENT" means an adjustment to the
Auction Period as provided in Section 2.5.6 hereof.
"AUCTION PROCEDURES" means the procedures set forth in Section
2.5.1 hereof by which the Auction Rate is determined.
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"AUCTION RATE" means the rate of interest per annum that
results from implementation of the Auction Procedures and is determined as
described in Section 2.5.1 (c)(ii) hereof.
"AUTHORIZED DENOMINATIONS" means, with respect to any Series
of 2000-I Notes, $50,000 and integral multiples of $50,000 in excess thereof.
"AVAILABLE 2000-I NOTES" has the meaning set forth in
Section 2.5.1 (c)(i)(A) hereof.
"BID" has the meaning set forth in Section 2.5.1 (a)(i)
hereof.
"BID AUCTION RATE" has the meaning set forth in Section
2.5.1 (c)(1) hereof.
"BIDDER" has the meaning set forth in Section 2.5.1 (a)(i)
hereof.
"BOND EQUIVALENT YIELD" means, in respect of any security,
the "bond equivalent yield" the rate for which is quoted in THE WALL STREET
Journal on a bank discount basis, a yield (expressed as a percentage) for such
security which appears on Telerate United States Treasury and Money Market
Composite Page 0223, rounded up to the nearest one one-hundredth of one percent.
"BOOK-ENTRY FORM" or "BOOK-ENTRY SYSTEM" means a form or
system under which (i) the beneficial right to principal and interest may be
transferred only through a book entry, (ii) physical securities in registered
form are issued only to a Securities Depository or its nominee as registered
owner, with the securities "immobilized" to the custody of the Securities
Depository, and (iii) the book entry is the record that identifies the owners of
beneficial interests in that principal and interest.
"BROKER-DEALER" means Xxxxxxx Xxxxx Xxxxxx Inc. with respect
to the Series A-16 Notes, Series A-17 Notes, Series A-18 Notes, Series A-19
Notes, Series A-20 Notes and Series B-3 Notes, PaineWebber Incorporated with
respect to the Series A-21 Notes and A-22 Notes, or any other broker or dealer
(each as defined in the Securities Exchange Act of 1934, as amended), commercial
bank or other entity permitted by law to perform the functions required of a
Broker-Dealer set forth in the Auction Procedures that (a) is a Participant (or
an affiliate of a Participant), (b) has been appointed as such by the Trustee
pursuant to Section 2.5.5 hereof or the Issuer pursuant to the Trust Agreement
and (c) has entered into a Broker-Dealer Agreement that is in effect on the date
of reference.
"BROKER-DEALER AGREEMENT" means each agreement between the
Auction Agent and a Broker- Dealer, and approved by the Issuer, pursuant to
which the Broker-Dealer agrees to participate in Auctions as set forth in the
Auction Procedures, as from time to time amended or supplemented. Each
Broker-Dealer Agreement shall be in substantially the form of the Broker-Dealer
Agreements dated as of June 1, 2000 between Bankers Trust Company, as Auction
Agent and the applicable Broker-Dealer.
"BROKER-DEALER FEE" has the meaning set forth in the
Broker-Dealer Agreement.
4
"BROKER-DEALER FEE RATE" has the meaning set forth in the
applicable Broker-Dealer Agreement.
"BUSINESS DAY" means any day on which the New York Stock
Exchange is open for trading and any day other than a Saturday, a Sunday or a
day on which banking institutions or trust companies in New York or Indiana are
authorized or obligated by law, regulation or executive order to remain closed.
"CLOSING DATE" means, with respect to the 2000-I Notes, June
9, 2000, the date of initial issuance and delivery of the 2000-I Notes
hereunder.
"EXISTING NOTE OWNER" means (i) with respect to and for the
purpose of dealing with the Auction Agent in connection with an Auction, a
Person who is a Broker-Dealer listed in the Existing Note Owner Registry at the
close of business on the Business Day immediately preceding such Auction and
(ii) with respect to and for the purpose of dealing with the Broker-Dealer in
connection with an Auction, a Person who is a beneficial owner of Notes.
"EXISTING NOTE OWNER REGISTRY" means the registry of Persons
who are owners of the Notes, maintained by the Auction Agent as provided in the
Auction Agency Agreement.
"FIFTH TERMS SUPPLEMENT" means this Fifth Terms Supplement,
as from time to time amended or supplemented.
"FINAL MATURITY DATE" means December 1, 2030 for each Series
of 2000-I Notes.
"HOLD ORDER" has the meaning set forth in Section
2.5.1(a)(i) hereof.
"INTEREST RATE" means with respect to a Series of 2000-I
Notes, the rate of interest per annum borne by such Series as of the time
referred to, including, without limitation, the related Series Initial Rate and
the related Series Interest Rate,
"MARKET AGENT" means Xxxxxxx Xxxxx Barney Inc. with respect
to the Series A-16 Notes, Series A-17 Notes, Series A-18 Notes, Series A-19
Notes, Series A-20 Notes and Series B-3 Notes, and PaineWebber Incorporated with
respect to the Series A-21 Notes and Series A-22 Notes, in such capacity
hereunder or any successor to any of them in such capacity hereunder.
"MAXIMUM AUCTION RATE" means, with respect to a Series of
2000-I Notes, (i) for Auction Periods of 35 days or less, either (A) One-Month
LIBOR plus 1.50% (if both ratings assigned by the Rating Agencies to the Series
of 2000-I Notes, are "AAA") or (B) One-Month LIBOR plus 2.50% (if both of the
ratings assigned by the Rating Agencies to the Series of 2000-I Notes, are "AA-"
or better) or (C) One-Month LIBOR plus 3.50% (if any one of the ratings assigned
by the Rating Agencies to the Series of Notes is less than "AA-") or (ii) for
Auction Periods of greater than 35 days, either (X) the Applicable LIBOR Rate,
plus 1.50% (if both of the ratings assigned by the Rating Agencies to the Series
of 2000-I Notes are "AAA" ) or (Y) the Applicable LIBOR Rate, plus 2.50% (if
both ratings assigned by the Rating Agencies to the Series of 2000-I Notes are
"AA-" or better) or (Z) the Applicable LIBOR Rate plus 3.50% (if any one of the
ratings assigned by the Rating Agencies to the Series of 2000-I Notes is less
than
5
"AA-"). For purposes of the Auction Agent and the Auction Procedures, the
ratings referred to in this definition shall be the last ratings of which the
Auction Agent has been given notice pursuant to the Auction Agency Agreement.
"NET LOAN RATE" means the rate of interest per annum (rounded
to the next highest one one-hundredth of one percent) equal to the applicable
United States Treasury Security Rate, plus 1.50%. For Auction Periods of 180
days or less, the applicable United States Treasury Security Rate is for 91-day
United States Treasury securities, and for Auction Periods of more than 180
days, the applicable United States Treasury Security Rate is for one-year United
States Treasury securities. The foregoing notwithstanding, if the Auction Rate
shall exceed the Net Loan Rate computed as set forth above, the Net Loan Rate
shall be re-computed to the rate of interest per annum (rounded to the next
highest one hundredth of one percent) equal to (i) the weighted average interest
rate of the Loans (after giving effect to all applicable interest subsidy
payments, special allowance payments, rebate fees on consolidation Loans and
reductions pursuant to borrower incentives or similar programs, if any) as of
the last day of the prior calendar quarter, less (ii) any applicable expenses
(but in no event in an amount in excess of 1.5% of the principal amount of the
Outstanding Notes) during such period. The prior sentence may be modified upon
receipt of a Rating Confirmation. The latter method of calculating the Net Loan
Rate shall only be applied if the rate so calculated is greater than the
resultant rate in the second sentence hereof.
"NINETY-ONE DAY UNITED STATES TREASURY XXXX RATE" means that
rate of interest per annum equal to the Bond Equivalent Yield - 91-Day T-Xxxx on
the 91-Day United States Treasury Bills sold at the last auction thereof that
immediately precedes the Series Rate Adjustment Date for the Series of 2000-I
Notes to which the Net Loan Rate applies.
"NON-PAYMENT RATE" means One-Month LIBOR plus 1.50%.
"NOTE OWNERS' AUCTION RATE INTEREST CARRYOVER" means as to any
Series of 2000-I Notes, with respect to any Series Interest Period for which the
Series Interest Rate for such Series Interest Period is the Net Loan Rate, the
amount equal to the excess, if any, of (a) the amount of interest on such Series
of 2000-I Notes that would have accrued in respect of the related Series
Interest Period had interest been calculated based on the applicable Auction
Rate over (b) the amount of interest on such Series of 2000-I Notes actually
accrued in respect of such Series Interest Period at the Net Loan Rate, together
with the unpaid portion of any such excess from prior Series Interest Periods
(and interest accrued thereon, to the extent permitted by law at the applicable
rate calculated based on One-Month LIBOR); PROVIDED, HOWEVER, that, with respect
to any Series of 2000-I Notes, on the related Final Maturity Date, the portion
of the Note Owners' Auction Rate Interest Carryover allocable to such Series of
2000-I Notes will be equal to the lesser of (i) the portion allocable to such
Series of 2000-I Notes of the Note Owners' Auction Rate Interest Carryover on
such date determined as described above and (ii) the amount of funds, if any,
required and available to be distributed with respect to such Series of 2000-I
Notes on such date pursuant to Section 5.3(B). EIGHTH of the Trust Agreement.
"NOTICE OF FEE RATE CHANGE" means a notice of a change in the
Auction Agent Fee Rate or the Broker-Dealer Fee Rate substantially in the form
of Exhibit E to the Auction Agency Agreement.
6
"ORDER" has the meaning set forth in Section 2.5.1 (a)(i)
hereof.
"PAYMENT DEFAULT" means, with respect to any Series of 2000-I
Notes, a default in the due and punctual payment of interest on or principal of
a 2000-I Note of such Series on the related Series Payment Date or Final
Maturity Date, as applicable.
"RECORD DATE" means, with respect to a Series of 2000-I Notes,
one Business Day prior to the related Auction Date.
"REUTERS SCREEN LIBOR PAGE" means the display designated as
page `LIBOR' on the Reuters Monitor Money Rates Service (or such other page as
may replace the LIBOR page for the purposes of displaying London interbank
offered rates of major banks).
"SELL ORDER" has the meaning set forth in Section 2.5.1 (a)(i)
hereof.
"SENIOR NOTES" means Notes that are Senior Obligations such as
the 2000-I Senior Notes.
"SENIOR SUBORDINATE NOTES" means Notes that are Senior
Subordinate Obligations such as the Series B-3 Notes.
"SERIES INITIAL PERIOD" means, as to a Series of 2000-I Notes,
the period commencing on the Closing Date and continuing through the day
immediately preceding the Series Initial Rate Adjustment Date for such Series.
"SERIES INITIAL RATE" means the rates per annum for each
Series of the 2000-I Notes as set forth in the Exhibits to the Purchase
Agreement.
"SERIES INITIAL RATE ADJUSTMENT DATE" means (i) with respect
to the Series X-00 Xxxxx, Xxxx 00, 0000, (xx) with respect to the Series A-17
Notes, July 11, 2000 (iii) with respect to the Series A-18 Notes, July 18, 2000,
(iv) with respect to the Series A-19 Notes, July 25, 2000, (v) with respect to
the Series A-20 Notes, July 21, 2000, (vi) with respect to the Series A-21
Notes, July 18, 2000, (vii) with respect to the Series A-22 Notes, July 26, 2000
and (viii) with respect to the Series B-3 Notes, July 11, 2000.
"SERIES INTEREST PERIOD" means with respect to a Series of
2000-I Notes the applicable Series Initial Period and each period commencing on
a Series Rate Adjustment Date for such Series and ending on the day before (i)
the next Series Rate Adjustment Date for such Series or (ii) the Final Maturity
Date of such Series, as applicable.
"SERIES INTEREST RATE" means each variable rate of interest
per annum borne by a Series of the 2000-I Notes for each Auction Period and
determined in accordance with the provisions of Sections 2.4 and 2.5 hereof;
provided, however, that in the event of a Payment Default the Series Interest
Rate shall equal the Non-Payment Rate; provided, further, however that such
Series Interest Rate shall in no event exceed the Series Interest Rate
Limitation.
"SERIES INTEREST RATE LIMITATION" means, with respect to each
Series of 2000-I Notes, a rate equal to 17.0% per annum.
7
"SERIES PAYMENT DATE" means the day immediately following
each Auction Date for such Series, and on the maturity or redemption date
thereof.
"SERIES RATE ADJUSTMENT DATE" means the date on which a
Series Interest Rate is effective, and means with respect to a Series of 2000-I
Notes, the date of commencement of each Auction Period.
"SERIES RATE DETERMINATION DATE" means, with respect to a
Series of 2000-I Notes, the Auction Date or if no Auction Date is applicable to
such Series, the Business Day immediately preceding the date of commencement of
an Auction Period.
"SUBMISSION DEADLINE" means 1:00 p.m., eastern time on any
Auction Date or such other time on any Auction Date by which Broker-Dealers are
required to submit Orders to the Auction Agent as specified by the Auction Agent
from time to time.
"SUBMITTED BID" has the meaning set forth in Section 2.5.1
(c)(i) hereof.
"SUBMITTED HOLD ORDER" has the meaning set forth in Section
2.5.1 (c)(i) hereof.
"SUBMITTED ORDER" has the meaning set forth in Section 2.5
(c)(i) hereof.
"SUBMITTED SELL ORDER" has the meaning set forth in Section
2.5.1 (c)(1) hereof.
"SUFFICIENT BIDS" has the meaning set forth in Section 2.5.1
(c)(i) hereof.
"TELERATE PAGE 3750" means the display page so designated on
the [Telerate, Inc. formerly Dow Xxxxx] Telerate Service (or such other page as
may replace that page on that service for the purpose of displaying comparable
rates or prices).
"UNITED STATES TREASURY SECURITY RATE" means, for purposes
of calculating the Net Loan Rate applicable to the particular Notes, that rate
of interest per annum equal to the Bond Equivalent Yield on the applicable
United States Treasury Securities sold at the last auction thereof that
immediately precedes the Series Rate Adjustment Date for such Notes.
ARTICLE II.
AUTHORIZATION, TERMS AND ISSUANCE
SECTION 2.1. AUTHORIZATION OF 2000-I NOTES. There is hereby
authorized the borrowing of funds, and to evidence such borrowing there are
hereby authorized seven Series of Senior Notes, designated (i) the "EMT Corp.
Student Loan Asset-Backed Auction Rate Notes 2000-I Senior Series A-16" in the
aggregate principal amount of $98,000,000, (ii) the "EMT Corp. Student Loan
Asset-Backed Auction Rate Notes 2000-I Senior Series A-17" in the aggregate
principal amount of $98,000,000, (iii) the "EMT Corp. Student Loan Asset-Backed
Auction Rate Notes 2000-I Series A-18" in the aggregate principal amount of
$98,000,000, (iv) the "EMT Corp. Student Loan Asset-Backed Auction Rate Notes
2000-I Senior Series A-19" in the aggregate principal amount of $98,000,000, (v)
the "EMT Corp. Student Loan Asset-Backed Auction Rate Notes 2000-I Senior Series
A-20" in the aggregate principal amount of
8
$98,000,000, (vi) the "EMT Corp. Student Loan Asset-Backed Auction Rate Notes
2000-I Senior Series A-21" in the aggregate principal amount of $49,000,000,
(vii) the "EMT Corp. Student Loan Asset-Backed Auction Rate Notes 2000-I Senior
Series A-22" in the aggregate principal amount of $49,000,000 and (viii) the
"EMT Corp. Student Loan Asset-Backed Auction Rate Notes 2000-I Senior
Subordinate Series B-3" in the aggregate principal amount of $48,000,000.
SECTION 2.2. PURPOSES. The 2000-I Notes are authorized to
finance the acquisition by the Issuer of Loans, and to make deposits to the
trust Accounts required hereby.
SECTION 2.3. TERMS OF 2000-I NOTES GENERALLY. The 2000-I
Notes shall be issued in fully registered form in substantially the form set
forth in Exhibit A hereof, with such variations, omissions and insertions as may
be required by the circumstances, as may be required or permitted by the Trust
Agreement and this Fifth Terms Supplement or be consistent with the Trust
Agreement and this Fifth Terms Supplement and necessary or appropriate to
conform to the rules and requirements of any governmental authority or any usage
or requirement of law with respect thereto.
The 2000-I Notes may be issued only in Authorized
Denominations. The 2000-I Notes shall be dated as of the Closing Date. Each
Series of 2000-I Notes shall mature on its Final Maturity Date. The Series A-16
Notes shall be numbered consecutively from 1 upwards with the prefix A-16
preceding each number. The Series A-17 Notes shall be numbered consecutively
from 1 upwards with the prefix A-17 preceding each number. The Series A-18 Notes
shall be numbered consecutively from 1 upwards with the prefix A-18 preceding
each number. The Series A-19 Notes shall be numbered consecutively from 1
upwards with the prefix A-19 preceding each number. The Series A-20 Notes shall
be numbered consecutively from 1 upwards with the prefix A-20 preceding each
number. The Series A-21 Notes shall be numbered consecutively from 1 upwards
with the prefix A-21 preceding each number. The Series A-22 Notes shall be
numbered consecutively from 1 upwards with the prefix A-22 preceding each number
The Series B-3 Notes shall be numbered consecutively from I upwards with the
prefix B-3 preceding each number. The 2000-I Notes shall be issued to a
Securities Depository for use in a Book-Entry System in accordance with the
provisions of Section 2.7 of the Trust Agreement.
Interest on each 2000-I Note shall accrue on the Outstanding
Amount of such 2000-I Note until such 2000-I Note has been paid in full or
payment has been duly provided for, as the case may be, and shall accrue from
the later of the initial date thereof or the most recent Note Interest Payment
Date to which interest has been paid or duly provided for. Each 2000-I Note
shall bear interest at an interest rate determined in accordance with the
provisions and subject to the limitations set forth herein, and interest on each
Series of 2000-I Notes shall be paid for the related Series Initial Period and
each Series Interest Period for such Series thereafter on each applicable Series
Payment Date.
Principal will be paid on the then Outstanding Series of
2000-I Notes on each applicable Series Payment Date as set forth in Section 3.1
hereof. The 2000-I Notes are subject to redemption, in whole or in part, at the
option of the Issuer on the applicable Series Payment
9
Date at a price of par plus accrued interest, upon not less than ten days prior
written notice to the Owners of such 2000-I Notes.
SECTION 2.4. 2000-I NOTES. During the related Series Initial
Period, each Series of 2000-I Notes shall bear interest at the Series Initial
Rate for such Series. Thereafter, except with respect to an Auction Period
Adjustment, the Series A-16 Notes shall bear interest at a Series Interest Rate
based on a 7-day Auction Period and each of the Series A-17 Note, Series A-18
Notes, Series A-19 Notes, Series A-20 Notes, Series A-21 Notes, Series A-22
Notes and Series B-3 Notes shall bear interest at a Series Interest Rate based
on a 28-day Auction Period.
For each Series of 2000-I Notes during the Series Initial
Period for such Series and each Auction Period thereafter, interest at the
Series Interest Rate shall accrue daily and shall be computed for the actual
number of days elapsed on the basis of a year consisting of 365/366 days, as
applicable.
The Series Interest Rate to be borne by each Series of 2000-I
Notes after such Series Initial Period for each Auction Period prior to an
Auction Period Adjustment, if any, shall be determined as herein described. Each
such Auction Period shall commence on and include the day following the
expiration of the immediately preceding Auction Period and terminate on and
include the Auction Date for the next succeeding Auction Period, subject to
adjustment as described below; provided, however, that in the case of the
Auction Period that immediately follows the Series Initial Period for a Series
of 2000-I Notes, such Auction Period shall commence on the Series Initial Rate
Adjustment Date for such Series.
The Series Interest Rate on each Series of 2000-I Notes for
each Auction Period shall be the lesser of the (i) Net Loan Rate in effect for
such Auction Period and (ii) the Auction Rate in effect for such Auction Period
as determined in accordance with Section 2.5.1 hereof; provided however, that
such Series Interest Rate shall in no event exceed the Series Interest Rate
Limitation, and further provided that if, on any Series Rate Determination Date,
an Auction is not held for any reason, then the Series Interest Rate on such
Series of 2000-I Notes for the next succeeding Auction Period shall be the Net
Loan Rate.
Notwithstanding the foregoing:
(a) if the ownership of a Series of 2000-I Notes is no longer
maintained in Book-Entry Form, the Series Interest Rate on the 2000-I Notes of
such Series for any Series Interest Period commencing after the delivery of
certificates representing 2000-I Notes of such Series pursuant to Section 2.15
of the Trust Agreement shall equal the lesser of (i) the Maximum Auction Rate
and (ii) the Net Loan Rate on the Business Day immediately preceding the first
day of such subsequent Series Interest Period; or
(b) if a Payment Default shall have occurred, the Series
Interest Rate on each Series of 2000-I Notes of the Series Interest Period for
such Series commencing on or immediately after such Payment Default and for each
Series Interest Period thereafter ,to and including the Series Interest Period,
if any, during which, or commencing less than two Business Days after, such
Payment Default is cured in accordance with this Fifth Terms Supplement, shall
equal the applicable Non-Payment Rate on the first day of each such Series
Interest Period.
10
In accordance with Section 2.5.1 (c) (ii) hereof, the Auction
Agent shall promptly give written notice to the Trustee of each Series Interest
Rate (unless the Series Interest Rate is the Non-Payment Rate) and either the
Auction Rate or the Net Loan Rate, as the case may be, when such rate is not the
Series Interest Rate, applicable to each Series of 2000-I Notes. The Trustee
shall notify the Note Owners of 2000-I Notes of the Series Interest Rate
applicable to each such Series of 2000-I Notes for each Auction Period on the
second Business Day of such Auction Period.
Notwithstanding any other provision of the 2000-I Notes or
this Fifth Terms Supplement and except for the occurrence of a Payment Default,
interest payable on each 2000-I Note for an Auction Period shall never exceed
for such Auction Period the amount of interest payable at the Net Loan Rate
(subject to the Series Interest Rate Limitation) in effect for such Auction
Period.
If the Auction Rate for a Series of 2000-I Notes is greater
than the Net Loan Rate, then the Series Interest Rate applicable to such Series
of 2000-I Notes for that Series Interest Period will be the Net Loan Rate. If
the Series Interest Rate applicable to such Series of 2000-I Notes for any
Series Interest Period is the Net Loan Rate, the Trustee shall determine the
Note Owners' Auction Rate Interest Carryover, if any, with respect to such
2000-I Notes for such Series Interest Period. Such determination of the Note
Owners' Auction Rate Interest Carryover shall be made separately for each Series
of 2000-I Notes. Note Owners' Auction Rate Interest Carryover shall bear
interest calculated at a rate equal to One-Month LIBOR (as determined by the
Auction Agent, provided the Trustee has received notice of One-Month LIBOR from
the Auction Agent, and if the Trustee shall not have received such notice from
the Auction Agent, then as determined by the Trustee) from the Series Payment
Date for the Series Interest Period with respect to which such Note Owners'
Auction Rate Interest Carryover was calculated until paid. For purposes of this
Fifth Terms Supplement, any reference to "principal" or "interest" herein shall
not include within the meaning of such words Note Owners' Auction Rate Interest
Carryover or any interest accrued on any such Note Owners' Auction Rate Interest
Carryover. Such Note Owners' Auction Rate Interest Carryover shall be separately
calculated for each 2000-I Note of such Series by the Trustee during such Series
Interest Period in sufficient time for the Trustee to give notice to each Note
Owner of such Note Owners' Auction Rate Interest Carryover as required in the
next succeeding sentence. On the Series Payment Date for a Series Interest
Period with respect to which such Note Owners' Auction Rate Interest Carryover
for a Series of 2000-I Notes has been calculated by the Trustee, the Trustee
shall give written notice to each Note Owner of the applicable Series of the
Note Owners' Auction Rate Interest Carryover applicable to each Note Owner's
2000-I Note of such Series, which written notice may be included in any other
written statement sent by the Trustee to such Note Owner and shall be mailed on
such Series Payment Date by first-class mail, postage prepaid, to each such Note
Owner at such Note Owner's address as it appears on the registration books
maintained by the Registrar. Such notice shall state in addition to such Note
Owners' Auction Rate Interest Carryover, that, unless and until a 2000-I Note of
such Series has been paid in full or has been deemed no longer Outstanding
(after which all accrued Note Owners' Auction Rate Interest Carryover (and all
accrued interest thereon) that remains unpaid shall be cancelled and no Note
Owners' Auction Rate Interest Carryover (and interest accrued thereon) shall be
paid with respect to a 2000-I Note of such Series), (i) the Note Owners' Auction
Rate Interest Carryover (and interest accrued thereon calculated at a rate equal
to One-Month LIBOR) shall be paid by
11
the Trustee on a 2000-I Note of such Series on the first occurring Series
Payment Date for such Series for a subsequent Series Interest Period if and to
the extent that (1) during such Series Interest Period no additional Note
Owners' Auction Rate Interest Carryover is accruing on such Series of 2000-I
Notes and (2) moneys are available pursuant to the terms of this Fifth Terms
Supplement in an amount sufficient to pay all or a portion of such Note Owners'
Auction Rate Interest Carryover and (ii) interest shall accrue on the Note
Owners' Auction Rate Interest Carryover at a rate equal to One-Month LIBOR until
such Note Owners' Auction Rate Interest Carryover is paid in full or is
cancelled.
Subject to the payment priorities set forth in Section 5.3(B)
of the Trust Agreement, the Note Owners' Auction Rate Interest Carryover for a
Series of 2000-I Notes shall be paid by the Trustee on Outstanding 2000-I Notes
of such Series on the Series Payment Date for such Series following the first
occurring Series Payment Date for a subsequent Series Interest Period if and to
the extent that (i) during such Series Interest Period no additional Note
Owners' Auction Rate Interest Carryover is accruing on such Series of 2000-I
Notes and (ii) moneys are available pursuant to the terms of this Fifth Terms
Supplement in an amount sufficient to pay all or a portion of such Note Owners'
Auction Rate Interest Carryover. Any Note Owners' Auction Rate Interest
Carryover (and any interest accrued thereon) on any 2000-I Note which is due
and payable on a Series Payment Date on which such 2000-I Note is to be paid in
full or deemed no longer Outstanding under this Fifth Terms Supplement on said
Series Payment Date, shall be paid to the Note Owner thereof on said Series
Payment Date to the extent that moneys are available therefor in accordance
with the provisions of this Fifth Terms Supplement; provided, however, that any
Note Owners' Auction Rate Interest Carryover (and any interest accrued thereon)
which is not yet due and payable on said Series Payment Date shall be cancelled
with respect to said 2000-I Note that is to be paid in full or deemed no longer
outstanding under this Fifth Terns Supplement on said Series Payment Date and
shall not be paid on any succeeding Series Payment Date. To the extent that any
portion of the Note Owners' Auction Rate Interest Carryover for a Series of
2000-I Notes remains unpaid after payment of a portion thereof, such unpaid
portion of the Note Owners' Auction Rate Interest Carryover shall be paid in
whole or in part as required hereunder until fully paid by the Trustee on the
next occurring Series Payment Date or Dates, as necessary, for a subsequent
Series Interest Period or Periods for such Series if and to the extent that the
conditions in the second preceding sentence are satisfied. On any Series
Payment Date on which the Trustee pays only a portion of the Note Owners'
Auction Rate Interest Carryover on a 2000-I Note of such Series, the Trustee
shall give written notice in the manner set forth in the immediately preceding
paragraph to the Note Owner of such 2000-I Note receiving such partial payment
of the Note Owners' Auction Rate Interest Carryover remaining unpaid on such
2000-I Note.
The Note Interest Payment Date in such subsequent Series
Interest Period on which such Note Owners' Auction Rate Interest Carryover for a
Series of 2000-I Notes shall be paid shall be determined by the Trustee in
accordance with the provisions of the immediately preceding paragraph and the
Trustee shall make payment of the Note Owners' Auction Rate Interest Carryover
in the same manner as, and from the same Account from which, it pays interest on
the 2000-I Notes on a Series Payment Date.
In the event that the Auction Agent no longer determines, or
fails to determine, when required, the Series Interest Rate with respect to a
Series of 2000-I Notes, or, if for any
12
reason such manner of determination shall be held to be invalid or
unenforceable, the Series Interest Rate for the next succeeding Series Interest
Period, which Period shall be an Auction Period for such Series of 2000-I Notes,
shall be the Net Loan Rate as determined by the Trustee (which is responsible
for notifying the Auction Agent of such Net Loan Rate), for such next succeeding
Auction Period.
SECTION 2.5. SERIES INTEREST RATE.
SECTION 2.5.1. DETERMINING THE INTEREST RATE.
By purchasing 2000-I Notes, whether in an Auction or
otherwise, each purchaser of the 2000-I Notes, or its Broker-Dealer, must agree
and shall be deemed by such purchase to have agreed (i) to participate in
Auctions on the terms described herein, (ii) to have its beneficial ownership of
the 2000-I Notes maintained at all times in Book-Entry Form for the account of
its Participant, which in turn will maintain records of such beneficial
ownership and (iii) to authorize such Participant to disclose to the Auction
Agent such information with respect to such beneficial ownership as the Auction
Agent may request.
So long as the ownership of a Series of 2000-I Notes is
maintained in Book-Entry Form, an Existing Note Owner may sell, transfer or
otherwise dispose of 2000-I Notes of such Series only pursuant to a Bid or Sell
Order placed in an Auction or otherwise sell, transfer or dispose of 2000-I
Notes through a Broker-Dealer, provided that, in the case of all transfers other
than pursuant to Auctions, such Existing Note Owner its Broker-Dealer or its
Participant advises the Auction Agent of such transfer Auctions shall be
conducted on each Auction Date, if there is an Auction Agent on such Auction
Date, in the following manner (such procedures to be applicable separately to
each Series of the 2000-I Notes):
(a) (i) Prior to the Submission Deadline on each
Auction Date relating to a Series of 2000-I Notes:
(A) each Existing Note Owner of the
applicable Series of 2000-I Notes may submit to a
Broker-Dealer by telephone or otherwise any information as to:
(1) the principal amount of
Outstanding 2000-I Notes of such Series, if any, owned by
such Existing Note Owner which such Existing Note Owner
desires to continue to own without regard to the Series
Interest Rate for the next succeeding Auction Period;
(2) the principal amount of
Outstanding 2000-I Notes of such Series, if any, which
such Existing Note Owner offers to sell if the Series Interest
Rate for the next succeeding Auction Period shall be less than
the rate per annum specified by such Existing Note Owner;
and/or
(3) the principal amount of
Outstanding 2000-I Notes of such Series, if any, owned by
such Existing Note Owner which such Existing Note Owner offers
to sell without regard to the Series Interest Rate for the
next succeeding Auction Period;
13
and
(B) one or more Broker-Dealers may
contact potential Note Owners to determine the principal
amount of 2000-I Notes of such Series which each potential Note Owner
offers to purchase, if the Series Interest Rate for the next
succeeding Auction Period shall not be less than the rate per annum
specified by such potential Note Owner.
The statement of an Existing Note Owner or a potential Note
Owner referred to in (A) or (B) of this paragraph (i) is herein referred to as
an "Order," and each Existing Note Owner and each potential Note Owner placing
an Order is herein referred to as a "Bidder"; an order described in clause
(A)(1) is herein referred to as a "Hold Order"; an Order described in clauses
(A)(2) and (B) is herein referred to as a "Bid"; and an Order described in
clause (A)(3) is herein referred to as a "Sell Order."
(ii) (A) Subject to the provisions
of Section 2.5.l(b) hereof, a Bid by an Existing Note
Owner shall constitute an irrevocable offer to sell:
(1) the principal amount of
Outstanding 2000-I Notes specified in such Bid if the
Series Interest Rate determined as provided in this Section
2.5.1 shall be less than the rate specified therein; or
(2) such principal amount or
a lesser principal amount of Outstanding 2000-I Notes to
be determined as set forth in Section 2.5.l(d)(i)(D) hereof,
if the Series Interest Rate determined as provided in this
Section 2.5.1 shall be equal to the rate specified therein; or
(3) such principal amount or
a lesser principal amount of Outstanding 2000-I Notes to
be determined as set forth in Section 2.5.1 (d)(ii)(C) hereof,
if the rate specified therein shall be higher than the Series
Interest Rate and Sufficient Bids have not been made.
(B) Subject to the provisions of
Section 2.5.1 (b) hereof, a Sell Order by an Existing Note
Owner shall constitute an irrevocable offer to sell:
(1) the principal amount of
Outstanding 2000-I Notes specified in such Sell Order; or
(2) such principal amount or
a lesser principal amount of Outstanding 2000-I Notes set
forth in Section 2.5.1 (d)(ii)(C) hereof, if Sufficient Bids
have not been made.
(C) Subject to the provisions of
Section 2.5.1 (b) hereof, a Bid by a potential Note Owner
shall constitute an irrevocable offer to purchase:
(1) the principal amount of
Outstanding 2000-I Notes specified in such Bid if the
Series Interest Rate determined as provided in this Section
2.5.1 shall be higher than the rate specified in such Bid; or
14
(2) such principal amount,
or a lesser principal amount of Outstanding 2000-I Notes
set forth in Section 2.5.l(d)(i)(E) hereof, if the Series
Interest Rate determined as provided in this Section 2.5.1
shall be equal to the rate specified in such Bid.
(b) (i) Each Broker-Dealer shall submit in
writing to the Auction Agent prior to the Submission Deadline of each Auction
Date all Orders obtained by such Broker-Dealer and shall specify with respect to
each such Order;
(A) the name of the Bidder placing such
Order;
(B) the aggregate principal amount and
Series of 2000-I Notes that are the subject of such Order;
(C) to the extent that such Bidder is an
Existing Note Owner:
(1) the principal amount and Series of
2000-I Notes, if any, subject to any Hold Order placed by such
Existing Note Owner;
(2) the principal amount and Series of
2000-I Notes, if any, subject to any Bid placed by such
Existing Note Owner and the rate specified in such Bid; and
(3) the principal amount and Series of
2000-I Notes, if any, subject to any Sell Order placed by such
Existing Note Owner;
and
(D) (i) to the extent such Bidder is
a potential Note Owner, the rate specified in such
potential Note Owner's Bid.
(ii) If any rate specified in any
Bid contains more than three figures to the right of the
decimal point the, Auction Agent shall round such rate up to the next
higher one-thousandth (.001) of one percent.
(iii) If an Order or orders covering
all Outstanding 2000-I Notes of the applicable Series
owned by an Existing Note Owner is not submitted to the Auction Agent
prior to the Submission Deadline, the Auction Agent shall deem a Hold
Order to have been submitted on behalf of such Existing Note Owner
covering the principal amount of Outstanding 2000-I Notes owned by such
Existing Note Owner and not subject to an Order submitted to the
Auction Agent.
(iv) None of the Issuer, the Trustee
nor the Auction Agent shall be responsible for an failure
of a Broker-Dealer to submit an Order to the Auction Agent on behalf of
any Existing Note Owner or potential Note Owner.
(v) If any Existing Note Owner submits
through a Broker-Dealer to the Auction Agent one or more Orders
covering in the aggregate more than the
15
principal amount of the Series of Outstanding 2000-I Notes owned by
such Existing Note Owner, such Orders shall be considered valid as
follows and in the following order of priority:
(A) All Hold Orders shall be considered
valid, but only up to the aggregate principal amount of
the Series of Outstanding 2000-I Notes owned by such Existing Note
Owner, and if the aggregate principal amount of the Series of 2000-I
Notes subject to such Hold Orders exceeds the aggregate principal
amount of the Series of 2000-I Notes owned by such Existing Note
Owner, the aggregate principal amount of the Series of 2000-I Notes
subject to each such Hold Order shall be reduced pro rata so that the
aggregate principal amount of the Series of 2000-I Notes subject to
such Hold Order equals the aggregate principal amount of the Series of
Outstanding 2000-I Notes owned by such Existing Note Owner.
(B) (1) any Bid shall be considered valid
up to an amount equal to the excess of the principal amount of
the Series of Outstanding 2000-I Notes owned by such Existing
Note Owner over the aggregate principal amount of the Series
of 2000-I Notes subject to any Hold Order referred to in
clause (A) of this paragraph (v).
(2) subject to subclause
(1) of this clause (B), if more than one Bid with the same
rate is submitted on behalf of such Existing Note Owner and
the aggregate principal amount of the Series of Outstanding
2000-I Notes subject to such Bids is greater than such excess,
such Bids shall be considered valid up to an amount equal to
such excess;
(3) subject to subclauses
(1) and (2) of this clause (B), if more than one Bid with
different rates are submitted on behalf of such Existing Note
Owner, such Bids shall be considered valid first in the
ascending order of their respective rates until the highest
rate is reached at which such excess exists and then at such
rate up to the amount of such excess; and
(4) in any such event, the
amount of Outstanding 2000 I Notes, if any, subject to
Bids not valid under this clause (B) shall be treated as the
subject of a Bid by a potential Note Owner at the rate therein
specified; and
(C) All Sell Orders shall be considered
valid up to an amount equal to the excess of the
principal amount of the Series of Outstanding 2000-I Notes owned by
such Existing Note Owner over the aggregate principal amount of the
Series of 2000-I Notes subject to Hold Orders referred to in clause (A)
of this paragraph (v) and valid Bids referred to in clause (B) of this
paragraph (v).
(vi) If more than one Bid for a Series
of 2000-I Notes is submitted on behalf of any potential
Note Owner, each Bid submitted shall be a separate Bid with the rate
and principal amount therein specified.
16
(vii) An Existing Note Owner of a
Series of 2000-I Notes that offers to purchase additional
2000-I Notes of the same Series is, for purposes of such offer treated
as a potential Note Owner.
(viii) Any Bid or Sell Order
submitted by an Existing Note Owner covering an aggregate
principal amount of 2000-I Notes not equal to an Authorized
Denomination shall be rejected and shall be deemed a Hold Order. Any
Bid submitted by a potential Note Owner covering an aggregate
principal amount of 2000-I Notes not equal to an Authorized
Denomination shall be rejected.
(ix) Any Bid specifying a rate higher
than the Maximum Auction Rate will (a) be treated as a
Sell Order if submitted by an Existing Note Owner and (b) not be
accepted if submitted by a potential Note Owner.
(x) Any Bid submitted by an Existing
Note Owner or a potential Note Owner specifying a rate
lower than the All Hold Rate shall be treated as a Bid specifying the
All Hold Rate.
(xi) Any Order submitted in an
Auction by Broker-Dealer to the Auction Agent at the Submission
Deadline on an Auction Date shall be irrevocable.
(c) (i) Not earlier than the Submission
Deadline on each Auction Date, the Auction Agent shall assemble all valid Orders
submitted or deemed submitted to it by the Broker-Dealers (each such Order as
submitted or deemed submitted by a Broker-Dealer being herein referred to
individually as a "Submitted Hold Order," a "Submitted BID" OR A "SUBMITTED SELL
ORDER," as the case may be, or as a "Submitted Order," and collectively as
"Submitted Hold Orders," "Submitted Bids" or "Submitted Sell Orders," as the
case may be, or as "Submitted Orders") and shall determine for the applicable
Series of 2000-I Notes:
(A) the excess of the total principal
amount of Outstanding 2000-I Notes of such Series over
the sum of the aggregate principal amount of Outstanding 2000-I Notes
of such Series subject to Submitted Hold Orders (such excess being
herein referred to as the "Available 2000-I Notes" of such Series),
and
(B) from the Submitted Orders whether:
(1) the aggregate principal amount
of Outstanding 2000-I Notes of such Series subject to
Submitted Bids by potential Note Owners specifying one or more
rates equal to or lower than the Maximum Auction Rate;
exceeds or is equal to the sum of:
(2) the aggregate principal amount
of Outstanding 2000-I Notes of such Series subject to
Submitted Bids by Existing Note Owners specifying one or more
rates higher than the Maximum Auction Rate; and
(3) the aggregate principal amount
of Outstanding 2000-I Notes of such Series subject to
submitted Sell Orders;
17
(in the event such excess or such equality exists, other than because
all of the Outstanding 2000-I Notes of such Series are subject to
Submitted Hold Orders, such Submitted Bids described in subclause (1)
above shall be referred to collectively as "Sufficient Bids"; and
(C) if Sufficient Bids exist the "Bid
Auction Rate", which shall be the lowest rate specified
in such Submitted Bids such that if:
(1) (x) each Submitted Bid
from Existing Note Owners specifying such lowest rate and
(y) all other Submitted Bids from Existing Note Owners
specifying lower rates were rejected, thus entitling such
Existing Note Owners to continue to own the principal amount
of 2000-I Notes subject to such Submitted Bids; and
(2) (x) each such Submitted
Bid from potential Note Owners specifying such lowest
rate and (y) all other Submitted Bids from potential Note
Owners specifying lower rates were accepted;
the result would be that such Existing Note Owners described in
subclause (1) above would continue to own an aggregate principal
amount of Outstanding 2000-I Notes of the applicable Series which,
when added to the aggregate principal amount of Outstanding 2000-I
Notes of such Series to be purchased by such potential Note Owners
described in subclause (2) above, would equal not less than the
Available 2000-I Notes of such Series.
(ii) Promptly after the Auction
Agent has made the determinations pursuant to Section 2.5.1
(c)(i) hereof, the Auction Agent shall advise the Trustee of the Net
Loan Rate, the Maximum Auction Rate and the All Hold Rate and the
components thereof on the Auction Date and based on such
determinations the Auction Rate for the next succeeding Series
Interest Period for such Series of 2000-I Notes as follows:
(A) if Sufficient Bids exist that the
Auction Rate for the next succeeding Series Interest Period for
such Series shall be equal to the Bid Auction Rate so determined;
(B) if Sufficient Bids do not exist
(other than because all of the Outstanding 2000-I Notes of
such Series are subject to Submitted Hold Orders), that the Auction
Rate for the next succeeding Series Interest Period shall be equal to
the Maximum Auction Rate, or
(C) if all Outstanding 2000-I Notes
of such Series are subject to Submitted Hold Orders, that
the Auction Rate for the next succeeding Series Interest Period shall
be equal to the All Hold Rate.
(iii) Promptly after the Auction
Agent has determined the Auction Rate, the Auction Agent
shall determine and advise the Trustee of the applicable Series
Interest Rate, which rate shall be the lesser of (a) the Auction Rate
and (b) the Net Loan Rate; provided, however, that in no event shall
the Series Interest Rate exceed the Series Interest Rate Limitation.
18
(d) Existing Note Owners of the applicable
Series shall continue to own the principal amount of 2000-I Notes of such Series
that are subject to Submitted Hold Orders. If the Net Loan Rate is equal to or
greater than the Bid Auction Rate and if Sufficient Bids have been received by
the Auction Agent, the Bid Auction Rate will be the Series Interest Rate and
Submitted Bids and Submitted Sell Orders will be accepted or rejected and the
Auction Agent will take such other action as described below in subparagraph
(i).
If the Net Loan Rate is less than the Auction Rate, the Net
Loan Rate will be the Series Interest Rate. If the Auction Rate and the Net Loan
Rate are both greater than the Series Interest Rate Limitation, the Series
Interest Rate shall be equal to the Series Interest Rate Limitation. If the
Auction Agent has not received Sufficient Bids (other than because all of the
Outstanding 2000-I Notes are subject to Submitted Hold Orders), the Series
Interest Rate will be the lesser of the Maximum Auction Rate and the Net Loan
Rate. In any of the cases described above, Submitted Orders will be accepted or
rejected and the Auction Agent will take such other action as described below in
subparagraph (ii).
(i) if Sufficient Bids have been
made and the Net Loan Rate is equal to or greater than the
Bid Auction Rate (in which case the Series Interest Rate shall be the
Bid Auction Rate), all Submitted Sell Orders shall be accepted and,
subject to the provisions of paragraphs (iv) and (v) of this Section
2.5.l(d), Submitted Bids shall be accepted or rejected as follows in
the following order of priority, and all other Submitted Bids shall be
rejected:
(A) Existing Note Owners' Submitted Bids
specifying any rate that is higher than the Series Interest Rate shall
be accepted, thus requiring each such Existing Note Owner to sell the
aggregate principal amount of 2000-I Notes subject to such Submitted
Bids;
(B) Existing Note Owners' Submitted Bids
specifying any rate that is lower than the Series Interest Rate shall
be rejected, thus entitling each such Existing Note Owner to continue
to own the aggregate principal amount of 2000-I Notes subject to such
Submitted Bids;
(C) Potential Note Owners' Submitted Bids
specifying any rate that is lower than the Series Interest Rate shall
be accepted;
(D) Each Existing Note Owners' Submitted
Bid specifying a rate that is equal to the Series Interest Rate shall
be rejected, thus entitling such Existing Note Owner to continue to own
the aggregate principal amount of 2000-I Notes subject to such
Submitted Bid, unless the aggregate principal amount of Outstanding
2000-I Notes subject to all such Submitted Bids shall be greater than
the principal amount of 2000-I Notes of the applicable Series (the
"remaining principal amount") equal to the excess of the Available
2000-I Notes of such Series over the aggregate principal amount of
2000-I Notes of such Series subject to Submitted Bids described in
clauses (B) and (C) of this Section 2.5.1 (d) (i), in which event such
Submitted Bid of such Existing Note Owner shall be rejected in part,
and such Existing Note Owner shall be entitled to continue to own the
principal amount of 2000-I Notes subject to such Submitted Bid, but
only in an
19
amount equal to the aggregate principal amount of 2000-I Notes of such
Series obtained by multiplying the remaining principal amount by a
fraction, the numerator of which shall be the principal amount of
Outstanding 2000-I Notes of such Series owned by such Existing Note
Owner subject to such Submitted Bid and the denominator of which shall
be the sum of the principal amount of Outstanding 2000-I Notes of such
Series subject to such Submitted Bids made by all such Existing Note
Owners that specified a rate equal to the Series Interest Rate; and
(E) Each potential Note Owner's Submitted
Bid specifying a rate that is equal to the Series Interest Rate shall
be accepted, but only in an amount equal to the principal amount of
2000-I Notes of the applicable Series obtained by multiplying the
excess of the aggregate principal amount of Available 2000-I Notes of
such Series over the aggregate principal amount of 2000-I Notes of such
Series subject to Submitted Bids described in clauses (B), (C) and (D)
of this Section 2.5.l(d) (i) by a fraction the numerator of which shall
be the aggregate principal amount of Outstanding 2000-I Notes of such
Series subject to such Submitted Bid and the denominator of which shall
be the sum of the principal amount of Outstanding 2000-I Notes of such
Series subject to Submitted Bids made by all such potential Note Owners
that specified a rate equal to the Series Interest Rate.
(ii) If Sufficient Bids have not been made
(other than because all of the Outstanding 2000-I Notes of the
applicable Series are subject to submitted Hold Orders) or if the Net
Loan Rate is less than the Bid Auction Rate (in which case the Series
Interest Rate shall be the Net Loan Rate), or if the Series Interest
Rate Limitation applies, subject to the provisions of Section 2.5.1
(d)(iv) hereof, Submitted Orders shall be accepted or rejected as
follows in the following order of priority and all other Submitted Bids
shall be rejected:
(A) Existing Note Owners' Submitted Bids
specifying any rate that is equal to or lower than the Series Interest
Rate shall be rejected, thus entitling such Existing Note Owners to
continue to own the aggregate principal amount of 2000-I Notes subject
to such Submitted Bids;
(B) Potential Note Owners' Submitted Bids
specifying (1) any rate that is equal to or lower than the Series
Interest Rate shall be accepted and (2) any rate that is higher than
the Series Interest Rate shall be rejected; and
(C) each Existing Note Owner's Submitted
Bid specifying any rate that is higher than the Series Interest Rate
and the Submitted Sell Order of each Existing Note Owner shall be
accepted, thus entitling each Existing Note Owner that submitted any
such Submitted Bid or Submitted Sell Order to sell the 2000-I Notes
subject to such Submitted Bid or Submitted Sell Order, but in both
cases only in an amount equal to the aggregate principal amount of
2000-I Notes of the applicable Series obtained by multiplying the
aggregate principal amount of 2000-I Notes subject to Submitted Bids
described in clause (B) of this Section 2.5.1 (d) (ii) by a fraction,
the numerator of which shall be the aggregate principal amount of
Outstanding 2000-I Notes of such Series owned by such Existing Note
Owner subject to such submitted Bid or Submitted Sell
20
Order and the denominator of which shall be the aggregate principal
amount of Outstanding 2000-I Notes of such Series subject to all such
Submitted Bids and Submitted Sell Orders.
(iii) If all Outstanding 2000-I Notes of
such Series are subject to Submitted Hold Orders all Submitted Bids
shall be rejected.
(iv) If, as a result of the procedures
described in paragraph (i) or (ii) of this Section 2.5.l(d), any
Existing Note Owner would be entitled or required to sell, or any
potential Note Owner would be entitled or required to purchase a
principal amount of 2000-I Notes of the applicable Series that is not
equal to an Authorized Denomination, the Auction Agent shall, in such
manner as in its sole discretion it shall determine, round up or down
the principal amount of 2000-I Notes to be purchased or sold by any
Existing Note Owner or potential Note Owner so that the principal
amount of 2000-I Notes purchased or sold by each Existing Note Owner or
potential Note Owner shall be equal to an Authorized Denomination or an
integral multiple of $50,000 in excess thereof.
(v) If, as a result of the procedures
described in paragraph (ii) of this Section 2.5.1 (d), any potential
Note Owner would be entitled or required to purchase less than an
Authorized Denomination of 2000-I Notes of the applicable Series, the
Auction Agent shall, in such manner as in its sole discretion it shall
determine, allocate 2000-I Notes of such Series for purchase among
potential Note Owners so that only 2000-I Notes in Authorized
Denominations or integral multiples of $50,000 in excess thereof are
purchased by any potential Note Owner, even if such allocation results
in one or more of such potential Note Owners not purchasing an 2000-I
Notes.
(e) Based on the result of each Auction, the
Auction Agent shall determine the aggregate principal amount of 2000-I Notes of
the applicable Series to be purchased and the aggregate principal amount of
2000-I Notes of the applicable Series to be sold by potential Note Owners and
Existing Note Owners on whose behalf each Broker-Dealer submitted Bids or Sell
Orders and, with respect to each Broker-Dealer, to the extent that such
aggregate principal amount of 2000-I Notes to be sold differs from such
aggregate principal amount of 2000-I Notes to be purchased, determine to which
other Broker-Dealer or Broker-Dealers acting for one or more purchasers such
Broker-Dealer shall deliver, or from which other Broker-Dealer or Broker-Dealers
acting for one or more sellers such Broker-Dealer shall receive, as the case may
be, 2000-I Notes.
(f) Any calculation by the Auction Agent or the
Trustee, as applicable, of the Series Interest Rate, One-Month LIBOR,
Three-Month LIBOR, the Maximum Auction Rate, the All Hold Rate, the Net Loan
Rate and the Non-Payment Rate shall, in the absence of manifest error, be
binding on all other parties.
(g) PAYMENT DEFAULTS. The Trustee shall
determine not later than 2:00 p.m., eastern time, on the Business Day next
succeeding a Note Interest Payment Date, whether a Payment Default has occurred.
If a Payment Default has occurred, the Trustee shall not later than 2:15 p.m.,
eastern time, on such Business Day, send a notice thereof in substantially the
21
form of Exhibit B attached hereto to the Auction Agent, by telecopy or similar
means and, if such Payment Default is cured, the Trustee shall immediately send
a notice in substantially the form of Exhibit C attached hereto to the Auction
Agent by telecopy or similar means.
SECTION 2.5.2. CALCULATION OF MAXIMUM AUCTION RATE, ALL HOLD
RATE, NET LOAN RATE, ONE-MONTH LIBOR, THREE-MONTH LIBOR AND NON-PAYMENT RATE.
The Issuer shall calculate the Net Loan Rate and inform the Auction Agent
thereof in writing no later than the Business Day preceding each Auction Date.
The Auction Agent shall calculate the Net Loan Rate, the Maximum Auction Rate,
the All Hold Rate and One-Month LIBOR or Three-Month LIBOR, as the case may be,
on each Auction Date and shall notify the Trustee and the Issuer and the
Broker-Dealers of the Net Loan Rate, the Maximum Auction Rate, the All Hold Rate
and One-Month LIBOR or Three-Month LIBOR, as the case may be, as provided in the
Auction Agency Agreement. If the ownership of the 2000-I Notes is no longer
maintained in Book-Entry Form by the Securities Depository, the Trustee shall
calculate the Maximum Auction Rate and the Issuer will report to the Trustee in
writing the Net Loan Rate on the Business Day immediately preceding the first
day of each Series Interest Period commencing after the delivery of certificates
representing the 2000-I Notes pursuant to Section 2.15 of the Trust Agreement.
If a Payment Default shall have occurred, the Trustee shall calculate the
Non-Payment Rate on the Series Rate Determination Date for (i) each Series
Interest Period commencing after the occurrence and during the continuance of
such Payment Default and (ii) any Series Interest Period commencing less than
two Business Days after the cure of any Payment Default. The Auction Agent shall
determine One-Month LIBOR or Three-Month LIBOR, as applicable, for each Series
Interest Period other than the Series Initial Interest Period; provided, that if
the ownership of the 2000-I Notes is no longer maintained in Book-Entry Form, or
if a Payment Default has occurred, then the Trustee shall determine One-Month
LIBOR or Three-Month LIBOR, as applicable, for each such Series Interest Period.
The determination by the Trustee or the Auction Agent, as the case may be, of
One-Month LIBOR or Three-Month LIBOR, as applicable, shall (in the absence of
manifest error) be final and binding upon all parties. If calculated or
determined by the Auction Agent, the Auction Agent shall promptly advise the
Trustee and the Issuer of One-Month LIBOR or Three-Month LIBOR, as applicable.
SECTION 2.5.3. NOTIFICATION OF RATES, AMOUNTS AND NOTE INTEREST
PAYMENT DATES.
(a) Certain notices are to be given as described below:
(b) Promptly after the Closing Date and after the
beginning of each subsequent Series Interest Period, and in any event at least
10 days prior to any Series Payment Date, as the case may, be the Trustee shall
confirm with the Auction Agent so long as no Payment Default has occurred and is
continuing and the ownership of the 2000-I Notes is maintained in Book-Entry
Form by the Securities Depository, (1) the date of such next Note Interest
Payment Date and (2) the amount payable to the Auction Agent on the Auction
Date.
If any day scheduled to be a Series Payment Date shall be
changed after the Trustee shall have given the notice or confirmation referred
to in the preceding sentence, the Trustee shall not later than 9:15 a.m.,
eastern time, on the Business Day next preceding the earlier of the new Series
Payment Date or the old Series Payment Date, by such means as the
22
Trustee deems practicable, give notice of such change to the Auction Agent, so
long as no Payment Default has occurred and is continuing and the ownership of
the 2000-I Notes is maintained in Book-Entry Form by the Securities Depository.
SECTION 2.5.4. AUCTION AGENT.
(a) Bankers Trust Company is hereby appointed as Initial
Auction Agent to serve as agent for the Issuer in connection with Auctions. The
Trustee and the Issuer will, and the Trustee is hereby directed to, enter into
the initial Auction Agency Agreement with Bankers Trust Company as the initial
Auction Agent. Any substitute Auction Agent shall be (i) a bank, national
banking association or trust company duly organized under the laws of the United
States of America or any state or territory thereof having its principal place
of business in the Borough of Manhattan, New York or such other location as
approved by the Trustee and the Market Agent in writing and having a combined
capital stock or surplus of at least $50,000,000, or (ii) a member of the
National Association of Securities Dealers, Inc. having a capitalization of at
least $50,000,000, and, in either case, authorized by law to perform all the
duties imposed upon it hereunder and under the Auction Agency Agreement. The
Auction Agent may at any time resign and be discharged of the duties and
obligations created by this Fifth Terms Supplement by giving at least 90 days'
notice to the Trustee, the Issuer and the Market Agents. The Auction Agent may
be removed at any time by the Trustee upon the written direction of the Note
Owners of 66-2/3% of the aggregate principal amount of the 2000-I Notes (and any
subsequently issued Series of Notes, but in no event less than 66-2/3% of the
aggregate principal amount of any Senior Notes) then outstanding, by an
instrument signed by such Note Owners or their attorneys and filed with the
Auction Agent, the Issuer, the applicable Market Agent and the Trustee upon at
least 90 days, notice. The Auction Agent may be removed by the Issuer in its
sole discretion at any time. Neither resignation nor removal of the Auction
Agent pursuant to the preceding three sentences shall be effective until and
unless a substitute Auction Agent who is reasonably acceptable to the Trustee
has been appointed and has accepted such appointment. If required by the Issuer
or the applicable Market Agent, with the Trustees consent, a substitute Auction
Agency Agreement shall be entered into with a substitute Auction Agent.
Notwithstanding the foregoing, the Auction Agent may terminate the Auction
Agency Agreement if, within 25 days after notifying the Trustee, the Issuer, and
the applicable Market Agent in writing that it has not received payment of any
Auction Agent Fee due it in accordance with the terms of the Auction Agency
Agreement, the Auction Agent does not receive such payment.
(b) If the Auction Agent shall resign or be removed or be
dissolved, or if the property or affairs of the Auction Agent shall be taken
under the control of any state or federal court or administrative body because
of bankruptcy or insolvency, or for any other reason, the Trustee, at the
direction of the Issuer (after receipt of a certificate from the applicable
Market Agent confirming that any proposed substitute Auction Agent meets the
requirements described in the immediately preceding paragraph), shall use its
best efforts to appoint a substitute Auction Agent.
(c) The Auction Agent is acting as agent for the Issuer in
connection with Auctions. In the absence of bad faith or negligence on its part,
the Auction Agent shall not be liable for any action taken, suffered or omitted
in good faith or for any error of judgment made by it in the performance of its
duties under the Auction Agency Agreement. The Auction Agent
23
shall not be liable for any error of judgment made in good faith unless the
Auction Agent shall have been negligent in ascertaining the pertinent facts.
(d) In the event of a change in the Auction Agent Fee Rate
pursuant to of the Auction Agency Agreement, the Auction Agent shall give a
Notice of Fee Rate Change to the Trustee and the Issuer in accordance with the
Auction Agency Agreement.
SECTION 2.5.5. BROKER-DEALERS.
(a) The Auction Agent will enter into a Broker-Dealer
Agreement with Xxxxxxx Xxxxx Xxxxxx Inc., as the initial Broker-Dealer with
respect to the Series A-16 Notes Series, A-17 Notes Series, A-18 Notes Series,
A-19 Notes Series, A-20 Notes and Series B-3 Notes, and with PaineWebber
Incorporated, as the initial Broker-Dealer with respect to the Series A-21 Notes
and A-22 Notes. An Authorized Officer of the Issuer may, from time to time,
approve one or more additional persons to serve as Broker-Dealers under
Broker-Dealer Agreements and shall be responsible for providing such
Broker-Dealer Agreements to the Trustee and the Auction Agent, provided,
however, that while Xxxxxxx Xxxxx Barney Inc. is serving as a Broker-Dealer with
respect to the 2000-I Notes, Xxxxxxx Xxxxx Xxxxxx Inc. shall have the right to
consent to the approval of any additional Broker-Dealers therefore, which
consent in any event will not be unreasonably withheld. The Auction Agent shall
have entered into a Broker-Dealer Agreement with each Broker-Dealer prior to the
participation of any such Broker-Dealer in any Auction.
(b) Any Broker-Dealer may be removed at any time at the
request of an Authorized Officer of the Issuer, but there shall, at all times,
be at least one Broker-Dealer appointed and acting as such.
SECTION 2.5.6. CHANGES IN AUCTION PERIOD OR PERIODS.
(a) While any of the 2000-I Notes are Outstanding, the Issuer
may, from time to time, convert the length of one or more Auction Periods (an
"Auction Period Adjustment") in order to conform with then current market
practice with respect to similar securities or to accommodate economic and
financial factors that may affect or be relevant to the length of the Auction
Period and the Series Interest Rate borne by the 2000-I Notes. The Issuer shall
not initiate an Auction Period Adjustment unless it shall have received the
written consent of the Market Agent, which consent shall not be unreasonably
withheld, not less than three days nor more than 20 days prior to the effective
date of an Auction Period Adjustment. The Issuer shall initiate the Auction
Period Adjustment by giving written notice by Issuer Order to the Trustee, the
Auction Agent, the Market Agent, Fitch, S&P and the Securities Depository in
substantially the form of, or containing substantially the information contained
in, Exhibit D to this Fifth Terms Supplement at least 10 days prior to the
Auction Date for such Auction Period.
(b) Any such adjusted Auction Period shall not be less than 7
days nor more than 365 days.
(c) An Auction Period Adjustment shall take effect only if
(A) the Trustee and the Auction Agent receive by 11:00 a.m., eastern time, on
the Business Day before the Auction Date for the first such Auction Period, an
Issuer's Certificate in substantially the form
24
attached as, or containing substantially the same information contained in,
Exhibit E to this Fifth Terms Supplement, authorizing the Auction Period
Adjustment specified in such certificate along with a copy of the written
consent of the Market Agent described above in subparagraph (a) above and (B)
Sufficient Bids exist as of the Auction on the Auction Date for such first
Auction Period. If the condition referred to in (A) above is not met, the Series
Interest Rate for the next Auction Period shall be determined pursuant to the
above provisions of this Section 2.5 and the Auction Period shall be the Auction
Period determined without reference to the proposed change. If the condition
referred to in (A) is met but the condition referred to in (B) above is not met,
the Series Interest Rate for the next Auction Period shall be the lesser of the
Maximum Auction Rate and the Net Loan Rate and the Auction Period shall be the
Auction Period determined without reference to the proposed change.
In connection with any Auction Period Adjustment, the Auction
Agent shall provide such further notice to such parties as is specified in
Section 2.5 of the Auction Agency Agreement.
SECTION 2.5.7. CHANGES IN THE AUCTION DATE. The Market Agent,
with the written consent of an Authorized Officer of the Issuer, may specify an
earlier Auction Date (but in no event more than five Business Days earlier) than
the Auction Date that would otherwise be determined in accordance with the
definition of "Auction Date" in Section 1.1 of this Fifth Terms Supplement with
respect to one or more specified Auction Periods in order to conform with then
current market practice with respect to similar securities or to accommodate
economic and financial factors that may affect or be relevant to the day of the
week constituting an Auction Date and the Series Interest Rate borne on the
2000-I Notes. The Market Agent shall deliver a written request for consent to
such change in the Auction Date to the Issuer not less than three days nor more
than 20 days prior to the effective date of such change together with a
certificate demonstrating the need for change in reliance on such factors The
Market Agent shall provide notice of its determination to specify an earlier
Auction Date for one or more Auction Periods by means of a written notice
delivered at least 10 days prior to the proposed changed Auction Date to the
Trustee, the Auction Agent, the Issuer and the Securities Depository. Such
notice shall be substantially in the form of, or contain substantially the
information contained in, Exhibit F to this Fifth Terms Supplement.
In connection with any change described in this Section 2.5.7,
the Auction Agent shall provide such further notice to such parties as is
specified in Section 2.5 of the Auction Agency Agreement.
SECTION 2.6. ADDITIONAL PROVISIONS REGARDING THE SERIES
INTEREST RATES ON THE 2000-I Notes. The determination of a Series Interest Rate
by the Auction Agent or any other Person pursuant to the provisions of the
applicable Section of this Article II shall be conclusive and binding on the
Note Owners of the Series of 2000-I Notes to which such Series Interest Rate
applies, and the Issuer and the Trustee may rely thereon for all purposes.
In no event shall the cumulative amount of interest paid or
payable on a Series of 2000-I Notes (including interest calculated as provided
herein, plus any other amounts that constitute interest on the 2000-I Notes of
such Series under applicable law, which are contracted for, charged, reserved,
taken or received pursuant to the 2000-I Notes of such Series or related
25
documents) calculated from the date of issuance of the 2000-I Notes of such
Series through any subsequent day during the term of the 2000-I Notes of such
Series or otherwise prior to payment in full of the 2000-I Notes of such Series
exceed the amount permitted by applicable law. If the applicable law is ever
judicially interpreted so as to render usurious any amount called for under the
2000-I Notes of such Series or related documents or otherwise contracted for,
charged, reserved, taken or received in connection with the 2000-I Notes of such
Series, or if the acceleration of the maturity of the 2000-I Notes of such
Series results in payment to or receipt by the Note Owner or any former Note
Owner of the 2000-I Notes of such Series of any interest in excess of that
permitted by applicable law, then notwithstanding any provision of the 2000-I
Notes of such Series or related documents to the contrary, all excess amounts
theretofore paid or received with respect to the 2000-I Notes of such Series
shall be credited on the principal balance of the 2000-I Notes of such Series
(or, if the 2000-I Notes of such Series have been paid or would thereby be paid
in full, refunded by the recipient thereof), and the provisions of the 2000-I
Notes of such Series and related documents shall automatically and immediately
be deemed paid and the amounts thereafter collectible hereunder and thereunder,
reduced without the necessity of the execution of any new document so as to
comply with the applicable law, but so as to permit the recovery of the fullest
amount otherwise called for under the 2000-I Notes of such Series and under the
related documents.
SECTION 2.7. QUALIFICATIONS OF MARKET AGENT. The Market Agent
shall be a member of the National Association of Securities Dealers, Inc., have
a capitalization of at least $50,000,000 and be authorized by law to perform all
the duties imposed upon it by this Fifth Terms Supplement. The Market Agent may
resign and be discharged of the duties and obligation created by this Fifth
Terms Supplement by giving at least 30 days' notice to the Issuer and the
Trustee, provided that such resignation shall not be effective until the
appointment of a successor market agent by the Issuer and the acceptance of such
appointment by such successor market agent. The Market Agent may be replaced at
the direction of the Issuer by an instrument signed by an Authorized Officer of
the Issuer, filed with the Market Agent and the Trustee at least 30 days before
the effective date of such replacement, provided that such replacement shall not
be effective until the appointment of a successor Market Agent by the Issuer and
the acceptance of such appointment by such successor Market Agent.
In the event that the Market Agent shall be removed or be
dissolved, or if the property or affairs of the Market Agent shall be taken
under the control of any state or federal court or administrative body because
of bankruptcy or insolvency, or for any other reason, and there is no Market
Agent and the Issuer shall not have appointed its successor as Market Agent, the
Trustee, notwithstanding the provisions of the first paragraph of this Section,
shall be deemed to be the Market Agent for all purposes of this Fifth Terms
Supplement until the appointment by the Issuer of the successor Market Agent.
Nothing in this Section shall be construed as conferring on the Trustee
additional duties other than as set forth herein.
ARTICLE III.
DISTRIBUTIONS
26
SECTION 3.1. DISTRIBUTIONS OF INTEREST AND PRINCIPAL. The
Trustee shall make distributions from and to the several Trust Accounts in the
manner provided for in the Trust Agreement.
On the first Business Day of each calendar quarter after
December 1, 2003 ( or such later date to which the Recycling Period is extended
upon receipt of a Rating Confirmation), the Issuer shall determine the amounts
on deposit in the Revenue Account and the Loan Account which will be available
for distribution after payment, in the following order of priority, of (a) the
amounts required to be paid in Section 5.3(B)(FIRST) through (EIGHTH) of the
Trust Agreement, (b) the amounts and in the order required to be paid in Section
3.1 of the First Terms Supplement with respect to the Senior Notes and
thereafter (c) the amounts and in the order required to be paid in Section 3.1
of the Second Terms Supplement with respect to the Senior Notes and thereafter
(d) the amounts and in the order required to be paid in Section 3.1 of the Third
Terms Supplement with respect to the Senior Notes, (e) the amounts and in the
order required to be paid in Section 3.1 of the Fourth Terms Supplement with
respect to the Senior Notes and (f) shall apply such remaining amounts as
follows and in the following order of priority (subject to any Supplemental
Trust Agreement with respect to Additional Notes providing for a priority for
such Additional Notes):
(i) to pay principal on 2000-I Series A-16 Notes, in integral
multiples of $50,000;
(ii) to pay principal on 2000-I Series A-17 Notes, in integral
multiples of $50,000;
(iii) to pay principal on 2000-I Series A-18 Notes, in
integral multiples of $50,000;
(iv) to pay principal on 2000-I Series A-19 Notes, in integral
multiples of $50,000;
(v) to pay principal on 2000-I Series A-20 Notes, in integral
multiples of $50,000;
(vi) to pay principal on 2000-I Series A-21 Notes, in integral
multiples of $50,000;
(vii) to pay principal on 2000-I Series A-22 Notes, in
integral multiples of $50,000;
(viii) to pay principal on 1998 Senior Subordinate Notes
Series B, in integral multiples of $50,000;
(ix) to pay principal on Series B-2 Notes in integral
multiples of $50 000; and
(x) to pay principal on Series B-3 Notes, in integral
multiples of $50 000.
27
The Issuer shall notify the Trustee (not later than 30 days, or such lesser
period as the Trustee shall determine to be acceptable, prior to the applicable
Series Payment Date) of the amount that will be applied to the payment of
principal of each Series of Notes and the Series Payment Dates occurring during
such calendar quarter on which such principal shall be paid.
SECTION 3.2. SELECTION OF NOTES TO RECEIVE PAYMENTS OF
PRINCIPAL. With respect to the Series of Notes entitled to receive payments of
principal, the specific Notes of such Series that will receive payments of
principal on each applicable Note Interest Payment Date will be selected no
later than 15 days prior to the related Series Payment Date by the Securities
Depository, pursuant to the Note Depository Agreement entered into with respect
to the 2000-I Notes, by lot in such manner as the Securities Depository in its
discretion may determine and which may provide for the selection for payment of
principal in minimum denominations of $50,000, and integral multiples in excess
thereof.
Notice of the specific Notes to receive payments of principal
is to be given by the Trustee by first-class mail, postage prepaid, mailed not
less than 15 days but no more than 30 days before the applicable Note Interest
Payment Date at the address of the applicable Note Owner appearing on the
registration books. Any defect in or failure to give such mailed notice shall
not affect the validity of proceedings for the payment of any other Notes not
affected by such failure or defect. All notices of payment are to state (i) the
applicable Series Payment Date, (ii) the amount of principal to be paid and
(iii) the specific Notes of such Series to be paid.
The Trustee shall notify in writing, substantially in the form
of Exhibit D to the Auction Agency Agreement, the Auction Agent when any notice
of principal payment of Notes is sent to the Securities Depository not later
than 11:00 a.m., on the date such notice is sent.
ARTICLE IV.
MISCELLANEOUS
SECTION 4.1. AUTHORITY FOR THIS FIFTH TERMS SUPPLEMENT. This
Fifth Terms Supplement is adopted pursuant to the provisions of the Trust
Agreement.
SECTION 4.2. COUNTERPARTS. This Fifth Terms Supplement may be
simultaneously executed in several counterparts, each of which shall be an
original and all of which shall constitute but one and the same instrument.
SECTION 4.3. FIFTH TERMS SUPPLEMENT CONSTITUTES A SECURITY
AGREEMENT. This Fifth Terms Supplement constitutes a security agreement for the
purposes of the Uniform Commercial Code.
SECTION 4.4. GOVERNING LAW This Fifth Terms Supplement shall
be governed by and construed in accordance with the laws of the State of
Indiana.
SECTION 4.5. REPORTS TO RATING AGENCIES Section 6.13(B)(i) of
the Trust Agreement is hereby amended and replaced in its entirety to read as
follows: "any investment to be made pursuant to 6, 7 or 8 of Investment
Securities."
28
SECTION 4.6. RATIFICATION OF TRUST AGREEMENT. As supplemented
by this Fifth Terms Supplement, the Trust Agreement is in all respects ratified
and confirmed, and the Trust Agreement as so supplemented by this Fifth Terms
Supplement shall be read, taken and construed as one and the same instrument.
Each addition to and amendment of the Trust Agreement contained herein is solely
for purposes of the 2000-I Notes and shall have no effect on any other Series of
Notes issued pursuant to the Trust Agreement. If any term of this Fifth Terms
SUPPLEMENT conflicts with any term of the Trust Agreement, this Fifth Terms
Supplement shall CONTROL FOR PURPOSES of the 2000-I Notes.
SECTION 4.7. RECYCLING PERIOD. Absent receipt of Rating
Confirmations permitting otherwise, during the recycling period which ends
December 1, 2003, amounts representing the proceeds of the 1998 Notes, the
1999-1 Notes the 2000 Notes or the 2000-I Notes shall only be applied to the
financing of Eligible Loans with the following characteristics:
(1) the percentage of recycled
Loans that are consolidation Loans shall not exceed 15%;
(2) the percentage of recycled
Loans that are made to students of two-year schools or
proprietary schools shall not exceed 10%;
(3) the percentage of recycled
Loans that are unsubsidized Xxxxxxxx loans not in
repayment status shall not exceed 10%; and
(4) the provisions of Section
6.7(B)(4)(1) of the Trust Agreement notwithstanding,
such proceeds may be applied to the financing of Loans
originated after July 1, 1998, provided that the percentage of
recycled Loans that are originated after July 1, 1998, shall
not exceed 40% of all such recycled Loans.
SECTION 4.8. MASTER PROMISSORY NOTES. The Corporation
covenants hereby, that no Eligible Loans shall be acquired under the Trust
Agreement which are evidenced by Master Promissory Notes (as provided for in
Section 432(m)(1)(D) of the Higher Education Act, 20 U.S.C.A. ss.1082(m)(1)(D))
unless the Corporation or its Eligible Lender Trustee shall be determined to be
the initial lender under such note or the note shall have been purchased from
the initial lender and the Corporation or its Eligible Lender Trustee shall have
actual possession of such note which shall be delivered to the custodian.
29
IN WITNESS WHEREOF, the parties hereto have caused this Fifth
Terms Supplement to be duly executed as of the day and year first above written.
EMT CORP.
By:/s/ Xxxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Treasurer
BANK ONE TRUST COMPANY, N.A. not in
its individual capacity but solely as Trustee
By:/s/ Xxxxx Xxxxxxx
---------------------------------------
Name: Xxxxx Xxxxxxx
Title: Assistant Vice President
30
EXHIBIT A
[FORM OF 2000-I NOTES]
EMT CORP.
STUDENT LOAN ASSET-BACKED AUCTION RATE NOTES
[2000-I SENIOR SERIES A-__]
[2000-I SENIOR SUBORDINATE SERIES B-3]
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER (AS DEFINED BELOW)
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO, HAS AN INTEREST HEREIN.
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "ACT") OR ANY STATE SECURITIES LAWS THE HOLDER HEREOF, BY PURCHASING THIS
NOTE, AGREES THAT THIS NOTE MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY
IN ACCORDANCE WITH ANY APPLICABLE STATE SECURITIES LAWS AND (1) TO A PERSON WHOM
THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WHICH
PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER TO WHOM NOTICE IS GIVEN THAT THE RESALE, PLEDGE OR OTHER TRANSFER IS BEING
MADE IN RELIANCE ON RULE 144A OR TO AN INSTITUTIONAL "ACCREDITED INVESTOR" AS
DEFINED IN RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D PROMULGATED UNDER THE
ACT, OR (2) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT.
A-1
THIS NOTE IS NOT GUARANTEED OR INSURED BY ANY GOVERNMENTAL AGENCY.
NO A -__-__[B-3-__]
$_____________
FINAL
MATURITY DATED INTEREST
SERIES DATE DATE RATE CUSIP
------ ---- ---- ---- -----
December 1, June 9, 2000 Auction rate as
2030 herein provided
REGISTERED NOTE OWNER: CEDE & CO.
--------------------------------------------------
PRINCIPAL AMOUNT:
-----------------------------------------------------
A-2
EMT Corp., an Indiana corporation (the "Issuer"), for value
received, promises to pay, from the sources herein described, to the registered
Note Owner identified above, or registered assigns, upon presentation and
surrender hereof at the designated Trust Office of Bank One Trust Company, N.A.,
as Trustee, or at the designated office of any successor, the Principal Amount
identified above on the Final Maturity Date identified above, and to pay to the
registered Note Owner hereof interest and principal hereon in lawful money of
the United States of America at the Series Interest Rate on the dates as
provided herein. Unless otherwise defined in this 2000-I Note, capitalized terms
used in this 2000-I Note shall have the respective meanings given to such terms
in the Trust Agreement dated as of May 15, 1998, as amended and supplemented to
June 1, 2000, including by the Fifth Terms Supplement dated as of June 1, 2000,
(the "Fifth Terms Supplement" and, together, the "Trust Agreement") between the
Issuer and such Trustee.
This 2000-I Note is one of a duly authorized issue of notes of
the Issuer designated as "EMT Corp. Student Loan Asset-Backed Auction Rate
Notes, [2000-I Senior Series A-__]" or [2000-I Senior Subordinate Series B-3]
(herein referred to by specific Series as the "2000-I Series _______ Notes" and
collectively with certain other Notes issued simultaneously therewith, as the
"2000-I Notes"), in the aggregate principal amount of $_________ issued under
the Trust Agreement. The 2000-I Notes are issued to finance the acquisition of
Loans and to make certain deposits to the trust Accounts.
The Trust Agreement provides for the issuance, from time to
time, under the conditions, limitations and restrictions set forth therein, of
additional notes for the purpose of providing additional funds for the financing
of Loans (said additional notes, together with 2000-I Notes, being collectively
referred to herein as the "Notes").
The Notes are secured under the Trust Agreement which,
together with certain other documents, assigns to the Trustee for the benefit of
the Note Owners (and certain others, as their interest may appear) all the
rights and remedies of the Issuer under certain Loans and rights under various
contracts providing for the issuance, guarantee and servicing of such Loans.
Reference is hereby made to the Trust Agreement for the provisions, among
others, with respect to the custody and application of the proceeds of the
Notes, definitions of certain capitalized terms used in this 2000-I Note, the
nature and the extent of the liens and security of the Trust Agreement, the
collection and disposition of revenues, the funds charged with and pledged to
the payment of the principal of and the interest on the Notes, the terms and
conditions under which additional Notes may be issued the rights duties and
immunities of the Trustee, the rights of the registered owners of the Notes, and
the rights and obligations of the Issuer. By the acceptance of this 2000-I Note,
the registered owner hereof assents to all of the provisions of the Trust
Agreement.
The unpaid principal amount hereof from time to time
outstanding shall bear interest at a Series Interest Rate, as described below,
payable on each applicable Series Payment Date to the extent of interest accrued
on the principal then outstanding, such interest to accrue from the later of the
date hereof or the date through which interest has been paid or duly provided
for. Interest at a Series Interest Rate established pursuant to the Fourth Terms
Supplement shall be computed for the actual number of days elapsed on the basis
of a year consisting of 365/366 days, as applicable.
A-3
During the Series Initial Period, this 2000-I Note shall bear
interest at the Series Initial Rate for the 2000-I Notes of this Series.
Thereafter until an Auction Period Adjustment, if any, this 2000-I Note shall
bear interest at a Series Interest Rate based on an Auction Period that shall,
until adjusted pursuant to the Fifth Terms Supplement consist of _ days, all as
determined in the Fifth Terms Supplement
The Series Interest Rate to be borne by this 2000-I Note after
the Series Initial Period for each Auction Period, if any, or, an Auction Period
Adjustment, if any, shall be the lesser of (i) the Net Loan Rate in effect for
such Auction Period and (ii) the Auction Rate determined in accordance with the
applicable provisions of the Fifth Terms Supplement.
In no event shall the Series Interest Rate on this 2000-I Note
exceed 17.0% per annum.
The Series Interest Period, including, without limitation, an
Auction Period, the applicable Series Interest Rate, the method of determining
the applicable Series Interest Rate on each of the 2000-I Notes and the Auction
Procedures related thereto, including, without limitation, required notices
thereof to the Note Owners or Existing Note Owners of the 2000-I Notes, an
Auction Period Adjustment, a change in the Auction Date and the Note Interest
Payment. Dates will be determined in accordance with the terms, conditions and
provisions of the Fifth Terms Supplement and the Auction Agency Agreement, to
which terms, conditions and provisions specific reference is hereby made, and
all of which terms, conditions and provisions are hereby specifically
incorporated herein by reference.
If the Auction Rate for the 2000-I Notes is greater than the
Net Loan Rate, then the Series Interest Rate applicable to the 2000-I Notes for
that Series Interest Period will be the Net Loan Rate. If the Series Interest
Rate applicable to the 2000-I Notes for any Series Interest Period is the Net
Loan Rate, the Trustee shall determine the Note Owners' Auction Rate Interest
Carryover, if any, with respect to the 2000-I Notes for such Series Interest
Period. Such Note Owners' Auction Rate Interest Carryover shall bear interest
calculated at a rate equal to One-Month LIBOR from the Note Interest Payment
Date for each Series Interest Period with respect to which such Note Owners'
Auction Rate Interest Carryover was calculated until paid. For purposes of this
2000-I Note, any reference to "principal" or "interest" herein shall not include
within the meaning of such words Note Owners' Auction Rate Interest Carryover or
any interest accrued on any such Note Owners' Auction Rate Interest Carryover.
Such Note Owners' Auction Rate Interest Carryover shall be separately calculated
for each 2000-I Note by the Trustee during such Series Interest Period in
sufficient time for the Trustee to give notice to each Note Owner of such Note
Owners' Auction Rate Interest Carryover as required in the next succeeding
sentence. On the Note Interest Payment Date for a Series Interest Period with
respect to which such Note Owners' Auction Rate Interest Carryover has been
calculated by the Trustee, the Trustee shall give written notice to each Note
Owner of the Note Owners' Auction Rate Interest Carryover applicable to such
Note Owner's 2000-I Note, which written notice may accompany the payment of
interest by check made to each such Note Owner on such Note Interest Payment
Date or otherwise shall be mailed on such Note Interest Payment Date by
first-class mail, postage prepaid, to each such Note Owner at such Note Owner's
address as it appears on the registration books maintained by the Registrar.
Such notice shall state in addition to such Note Owners' Auction Rate Interest
Carryover, that, unless and until a 2000-I Note has been
A-4
paid in full or has been deemed no longer outstanding under the Fifth Terms
Supplement (after which no Note Owners' Auction Rate Interest Carryover (and all
accrued interest thereon) shall be paid with respect to a 2000-I Note), (i) the
Note Owners' Auction Rate Interest Carryover (and interest accrued thereon
calculated on the basis of One-Month LIBOR) shall be paid by the Trustee on a
2000-I Note on the first occurring Note Interest Payment Date for a subsequent
Series Interest Period if and to the extent that (1) during such Series Interest
Period no additional Note Owners' Auction Rate Interest Carryover is accruing on
the 2000-I Notes and (2) moneys are available on such Note Interest Payment Date
pursuant to the terms of the Trust Agreement in an amount sufficient to pay all
or a portion of such Note Owners' Auction Rate Interest Carryover and (ii)
interest shall accrue on the Note Owners' Auction Rate Interest Carryover at a
rate equal to One-Month LIBOR until such Note Owners' Auction Rate Interest
Carryover is paid in full or is cancelled.
The Note Owners' Auction Rate Interest Carryover for the
2000-I Notes shall be paid by the Trustee on Outstanding 2000-I Notes on the
first occurring Series Payment Date for a subsequent Series Interest Period if
and to the extent that (i) during such Series Interest Period, no additional
Note Owners' Auction Rate Interest Carryover is accruing on the 2000-I Notes and
(ii) on such Series Payment Date there are sufficient moneys available pursuant
to the terms of the Fifth Terms Supplement to pay all or a portion of the Note
Owners' Auction Rate Interest Carryover due on the 2000-I Notes on such Series
Payment Date. Any Note Owners' Auction Rate Interest Carryover (and any interest
accrued thereon) on any 2000-I Note which is due and payable on any Series
Payment Date, on which such 2000-I Note is deemed no longer Outstanding under
the Trust Agreement on said Series Payment Date, shall be paid to the Note Owner
thereof on the next Series Payment Date to the extent that moneys are available
therefor in accordance with the Trust Agreement; provided, however, that any
Note Owners' Auction Rate Interest Carryover (and any interest accrued thereon)
which is not yet due and payable on said Series Payment Date shall be cancelled
with respect to said 2000-I Note that is to be deemed no longer Outstanding
under the Trust Agreement on said Series Payment Date and shall not be paid on
any succeeding Series Payment Date. To the extent that any portion of the Note
Owners' Auction Rate Interest Carryover remains unpaid after payment of a
portion thereof such unpaid portion of the Note Owners' Auction Rate Interest
Carryover shall be paid in whole or in part until fully paid by the Trustee on
the next occurring Series Payment Date or Dates, as necessary, for a subsequent
Series Interest Period or Periods, if and to the extent that the conditions in
the immediately preceding sentence are satisfied.
The Series Payment Date in such subsequent Series Interest
Period on which such Note Owners' Auction Rate Interest Carryover for the 2000-I
Notes shall be paid shall be determined by the Trustee in accordance with the
provisions of the immediately preceding paragraph, and the Trustee shall make
payment of the Note Owners' Auction Rate Interest Carryover in the same manner
as, and from the same account from which, it pays interest on the 2000-I Notes
on a Series Payment Date as provided for in the Trust Agreement.
The principal of and interest on the 2000-I Notes and Note
Owners' Auction Rate Interest Carryover on the 2000-I Notes (and interest
accrued thereon), if any, are special limited obligations of the Issuer, payable
solely from certain revenues derived by the Issuer from certain assets of the
Issuer, including certain notes evidencing Loans.
A-5
Distributions of principal will made on each Series Payment
Date to the respective Series of 2000-I Notes in the manner described in the
Trust Agreement. The 2000-I Notes are subject to redemption, in whole or in
part, at the option of the Issuer, on the applicable Series Payment Date at a
price of par plus accrued interest, upon not less than ten days prior written
notice to the Owners of such 2000-I Notes.
FAILURE TO PAY PRINCIPAL OF OR INTEREST ON A SENIOR
SUBORDINATE NOTE, WHEN DUE, SHALL NOT GIVE RISE TO AN EVENT OF DEFAULT IF ALL
PAYMENTS OF PRINCIPAL OF AND INTEREST ON OUTSTANDING SENIOR NOTES HAVE BEEN
MADE.
If an Event of Default as defined in the Trust Agreement
occurs, the principal of and interest on all Notes issued under the Trust
Agreement may be declared due and payable upon the conditions and in the manner
and with the effect provided in the Trust Agreement. The Trust Agreement and the
rights and obligations of the Issuer, the Trustee and the Note Owner hereof may
be modified or amended in the manner and subject to the conditions set forth in
the Trust Agreement.
The Note Owner of this 2000-I Note shall have no right to
enforce the provisions of the Trust Agreement or to institute action to enforce
the covenants therein, or to take any action with respect to any Event of
Default under the Trust Agreement, or to institute, appear in or defend any suit
or other proceeding with respect thereto, except as provided in the Trust
Agreement.
The transfer of this 2000-I Note may be registered only upon
surrender hereof to the Trustee together with an assignment duly executed by the
registered owner or its attorney or legal representative in such form as shall
be satisfactory to the Trustee. Upon any such registration of transfer of this
2000-I Note and subject to the payment of any fees and charges as provided by
the Trust Agreement, the Issuer shall execute and the Trustee shall authenticate
and deliver in exchange for this 2000-I Note a new 2000-I Note or Notes
registered in the name of the transferee, in any denomination or denominations
authorized by the Trust Agreement, of the same maturity and Series and in an
aggregate principal amount equal to the unredeemed principal amount of this
2000-I Note and bearing the same interest as this 2000-I Note.
In any case where the date fixed for the payment of principal
of or interest on this 2000-I Note shall not be a Business Day, then payment of
such principal or interest need not be made on such date but may be made on the
next succeeding Business Day with the same force and effect as if made on the
date fixed for the payment thereof.
It is hereby certified, recited and declared that all acts,
conditions and things required to have happened, to exist and to have been
performed precedent to and in the execution an delivery of the Trust Agreement
and issuance of this 2000-I Note have happened, do exist and have been performed
in due time, form and manner as required by law.
This 2000-I Note shall not be valid or become obligatory for
any purpose or be entitled to any security or benefit under the Trust Agreement
until the certificate of authentication hereon shall have been manually signed
by the Trustee.
A-6
IN WITNESS WHEREOF, the Issuer has caused this 2000-I Note to
be executed in its name by the manual or facsimile signature of an Authorized
Officer and the manual or facsimile signature of its Secretary, and has caused
its corporate seal or a facsimile thereof to be hereto affixed.
EMT CORP., as Issuer
By:/s/ Xxxxxxx X. Xxxxxx
---------------------------------------
Xxxxxxx X. Xxxxxx
Treasurer
(SEAL)
Attest:
---------------------------------------
Name:
Title:
CERTIFICATE OF AUTHENTICATION
This Note is one of the 2000-I Notes designated in and issued
under the provisions of the within mentioned Trust Agreement.
Bank One Trust Company, N.A.
Indianapolis, Indiana, as
Trustee
By:
---------------------------------
Authorized Representative
Date of Authentication:
-------------------------------------
A-7
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and
transfers unto ____________________, the within Note and irrevocably appoints
_____________________, attorney-in-fact, to transfer the within Note on the
books kept for registration thereof, with full power of substitution in the
premises.
Dated:___________________ ________________________________
NOTICE: The signature to this Signature Guaranteed:
assignment must correspond with the
name as it appears upon the face of the ________________________________
within Note in every particular, without
any alteration whatsoever.
Name and Address:____________________________
Tax Identification Number or
Social Security Number(s):__________________________________
END OF FORM OF 2000-I Note
A-8
EXHIBIT B
EMT CORP.
STUDENT LOAN ASSET-BACKED AUCTION RATE NOTES
[2000-I SENIOR SERIES A-__]
-
[2000-I SENIOR SUBORDINATE SERIES B-3]
NOTICE OF PAYMENT DEFAULT
-------------------------
NOTICE IS HEREBY GIVEN that an Event of Default has occurred
and is continuing with respect to the Notes identified above. The next Auction
for the 2000-I Notes will not be held The Auction Rate for the 2000-I Notes for
the next succeeding Series Interest Period shall be the Non-Payment Rate.
---------------------------------------
as Trustee
Dated: By:
------------------------------------
Name:
Title:
B-1
EXHIBIT C
EMT CORP.
STUDENT LOAN ASSET-BACKED AUCTION RATE NOTES
[2000-I SENIOR SERIES A-__]
[2000-I SENIOR SUBORDINATE SERIES B-3]
NOTICE OF CURE OF PAYMENT DEFAULT
---------------------------------
NOTICE IS HEREBY GIVEN that an Event of Default with respect
to the Notes identified above has been waived or cured. The next Series Payment
Date is _______________ and the next Auction Date is _____________________.
---------------------------------------
as Trustee
Dated: By:
------------------------------------
Name:
Title:
C-1
EXHIBIT D
EMT CORP.
STUDENT LOAN ASSET-BACKED AUCTION RATE NOTES
[2000-I SENIOR SERIES A-__]
[2000-I SENIOR SUBORDINATE SERIES B-3]
NOTICE OF PROPOSED AUCTION PERIOD ADJUSTMENT
--------------------------------------------
Notice is hereby given that the Issuer proposes to change the
length of one or more Auction Periods pursuant to the Fifth Terms Supplement to
the Trust Agreement as follows:
1. The change shall take effect on the Series Payment Date
for the current Auction Period and the date of commencement of the next Auction
Period (the "Effective Date").
2. The Auction Period Adjustment in Paragraph 1 shall take
place only if (A) the Trustee and the Auction Agent receive, by 11:00 a.m.,
eastern time, on the Business Day before the Auction Date for the Auction Period
commencing on the Effective Date, a certificate from the Market Agent, as
required by the Fifth Terms Supplement authorizing the change in length of one
or more Auction Periods and (B) Sufficient Bids exist on the Auction Date for
the Auction Period commencing on the Effective Date.
3. If the condition referred to in (A) above is not met, the
Auction Rate for the Auction Period commencing on the Effective Date will be
determined pursuant to the Auction Procedures and the Auction Period shall be
the Auction Period determined without reference to the proposed change. If the
condition referred to in (A) is met but the condition referred to in (B) above
is not met, the Auction Rate for the Auction Period commencing on the Effective
Date shall be the Maximum Auction Rate and the Auction Period shall be the
Auction Period determined without reference to the proposed change.
4. It is hereby represented upon advice of the Auction Agent
for the Notes described herein, that there were Sufficient Bids for such Notes
at the Auction immediately preceding the date of this Notice.
D-1
5. Terms not defined in this Notice shall have the meanings
set forth in the Fifth Terms Supplement entered into in connection with the
captioned Notes.
EMT CORP., as Issuer
Dated: By:
-------------------------------
D-2
EXHIBIT E
EMT CORP.
STUDENT LOAN ASSET-BACKED AUCTION RATE NOTES
[2000-I SENIOR SERIES A-__]
[2000-I SENIOR SUBORDINATE SERIES B-3]
NOTICE ESTABLISHING AUCTION PERIOD ADJUSTMENT
---------------------------------------------
Notice is hereby given that the Issuer hereby establishes new
lengths for one or more Auction Periods pursuant to the Fifth Terms Supplement
to the Trust Agreement:
1. The change shall take effect on _____________, the Series Payment
Date for the current Auction Period and the date of commencement of the next
Auction Period (the "Effective Date").
2. For the Auction Period commencing on the Effective Date, the
Note Interest Payment Date shall be __________________, or the next succeeding
Business Day if such date is not a Business Day.
3. For Auction Periods occurring after the Auction Period the Note
Interest Payment Dates shall be [_________ (date) and every ____________(number)
_____________________ (day of week) thereafter] [every ___________________
(number) ________________ (day of week) after the date set forth in paragraph 2
above], or the next Business Day if any such day is not a Business Day;
provided, however, that the length of subsequent Auction Periods shall be
subject to further change hereafter as provided in Section 2.5.7 of the Fifth
Terms Supplement.
4. The changes described in paragraphs 2 and 3 above shall take place
only upon delivery of this Notice and the satisfaction of other conditions set
forth in the Fifth Terms Supplement and our prior notice dated ____regarding the
proposed change.
5. Terms not defined in this Notice shall have the meanings set forth
in the Fifth Terms Supplement relating to the captioned Notes.
EMT CORP
By:
---------------------------------
Dated: By:
E-1
EXHIBIT F
EMT CORP
STUDENT LOAN ASSET-BACKED AUCTION RATE NOTES
[2000-I SENIOR SERIES A-___]
[2000-I SENIOR SUBORDINATE SERIES B-3]
NOTICE OF CHANGE IN AUCTION DATE
--------------------------------
Notice is hereby given by ____________________, as Market
Agent for the captioned Notes, that with respect to the captioned Notes, the
Auction Date is hereby changed as follows:
1. With respect to the captioned Notes, the definition of
"Auction Date" shall be deemed amended by substituting "
____________________(number) Business Day" in the second line thereof.
2. This change shall take effect on____________________ which
shall be the Auction Date for the Auction Period commencing on
______________________.
3. The Auction Date for the captioned Notes shall be subject
to further change hereafter as provided in the Fifth Terms Supplement.
4. Terms not defined in this Notice shall have the meanings
set forth in the Fifth Terms Supplement relating to the captioned Notes.
___________________________, as Market
Agent
Dated: By:
__________________________________
Name:
Title:
F-1
