EXHIBIT 10.134
FIRST AMENDMENT TO BROKER-DEALER AGREEMENT
between
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Auction Agent,
and
BANC OF AMERICA SECURITIES LLC,
as Broker-Dealer
Relating to
EMT Corp.
$50,000,000 -- 2000 Senior Series A-13
$50,000,000 -- 2000 Senior Series A-14
Dated as of October 1, 2003
THIS FIRST AMENDMENT TO BROKER-DEALER AGREEMENT dated as of October 1,
2003 (this "Amendment") between DEUTSCHE BANK TRUST COMPANY AMERICAS (together
with its successors and assigns, the "Auction Agent"), appointed as such
pursuant to the provisions of a Trust Agreement dated as of May 15, 1998 (the
"Trust Agreement") as amended and supplemented to April 1, 2000, by the Fourth
Terms Supplement dated as of April 1, 2000 (the "Fourth Terms Supplement" and
the Trust Agreement, as so amended and supplemented, referred to herein as the
"Trust Agreement") between Zions First National Bank (successor to Bank One
Trust Company, N.A.) (the "Trustee"), as trustee and EMT Corp. (the "Issuer")
pursuant to authority granted to it in the Auction Agency Agreement between the
Trustee and the Auction Agent hereinafter defined, and BANC OF AMERICA
SECURITIES LLC (together with its successors and assigns hereinafter referred to
as "BD").
The Issuer has previously issued $375,000,000 aggregate principal
amount of its Student Loan Asset-Backed Auction Rate Notes consisting of
$70,000,000 -- 2000 Senior Series A-10, $70,000,000 -- 2000 Senior Series A-11,
$70,000,000 -- 2000 Senior Series A-12, $50,000,000 -- 2000 Senior Series A-13,
$50,000,000 -- 2000 Senior Series A-14, $50,000,000 -- 2000 Senior Series A-15
and $15,000,000 -- 2000 Senior Subordinate Series B-2, of which the BD will act
as Broker-Dealer with respect to the Series A-13 and Series A-14 Notes (such
Series A-13 and A-14 Notes hereinafter referred to as the "Auction Rate Notes"
or the "ARN"). The ARN have been issued pursuant to the Trust Agreement.
The Auction Procedures set forth in the Auction Agency Agreement and
the Trust Agreement to satisfy such requirement require the participation of one
or more Broker-Dealers and the parties hereto have previously entered into a
Broker-Dealer Agreement dated as of October 15, 2002 (the "Original BD
Agreement").
Pursuant to Section 4.06 of the Original BD Agreement, the parties
hereto hereby desire to amend the Original BD Agreement by execution of this
Amendment as described below.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the Auction Agent, as agent of the Trustee, and BD
agree as follows:
ARTICLE I
TERMS DEFINED BY REFERENCE
Capitalized terms not defined herein shall have the respective meanings
specified in or pursuant to the Trust Agreement, the Original BD Agreement and
the Auction Agency Agreement.
ARTICLE II
AMENDMENTS TO SECTION 2.05 OF THE ORIGINAL BD AGREEMENT
Section 2.05 of the Original BD Agreement is herby amended and restated
in its entirety as follows:
SECTION 2.05. SERVICE CHARGE TO BE PAID TO BD.
(a) On the first Business Day in the
month of December 2002 and, thereafter, on the first
Business Day of each month during the term of this
Agreement, the Auction Agent shall pay to BD from
moneys received from the Trustee pursuant to Section
3.5(b) of the Auction Agency Agreement, an amount for
each Series of ARN equal to the product of (i) a
fraction, the numerator of which is the number of
days in the preceding month and the denominator of
which is 365/366 days, as applicable; times (ii) the
Broker-Dealer Fee Rate; times (iii) the sum, on the
Auction Date for such Series of ARN during such
preceding month of (A) the aggregate principal amount
of the ARN placed by BD in such Auction that were (1)
the subject of Submitted Bids of Existing Note
Holders submitted by BD and continued to be held as a
result of such submission, and (2) the subject of
Submitted Bids of Potential Note Holders submitted by
BD and purchased as a result of such submission; (B)
the aggregate principal amount of the ARN subject to
valid Hold Orders (determined in accordance with the
Fourth Terms Supplement) submitted to the Auction
Agent by BD; and (C) the principal amount of the ARN
deemed to be subject to Hold Orders by Existing Note
Holders pursuant to the Fourth Terms Supplement that
were acquired by such Existing Note Holders through
BD; provided, however, with respect to Notes with an
Auction Period of more than 35 days, the
Broker-Dealers shall be entitled to payment on the
first Business Day of the month immediately
succeeding each Auction Date for such Series and the
numerator referred to in Section 2.05(a)(i) shall be
the number of days in such Auction Period or the
Series Initial Period, as applicable. For purposes of
clause (iii)(C) of the foregoing sentence, if any
Existing Note Holder who acquired ARN through BD
transfers those ARN to another person other than
pursuant to an Auction, then the Broker-Dealer for
the ARN so transferred shall continue to be BD;
provided, however, that if the transfer was effected
by, or if the transferee is, a Broker-Dealer other
than BD, then such Broker-Dealer shall be the
Broker-Dealer for such ARN. If for any reason an
Auction is not held on an Auction Date, there shall
be no Broker-Dealer Fee applicable with respect to
such Auction Date. The Broker-Dealer Fee shall be
payable solely out of amounts received by the Auction
Agent pursuant to the Fourth Terms Supplement.
(b) The Broker-Dealer Fee Rate shall be
the prevailing rate received by broker-dealers for
rendering comparable services to others. The Auction
Agent shall advise the Trustee and the Issuer, at
their request, at least annually of such then current
prevailing rate. If the then current Broker-Dealer
Fee Rate is not equal to the prevailing rate, the
Trustee, at the direction of the Issuer, shall change
the Broker-Dealer Fee Rate pursuant to the terms of
the Auction Agency Agreement and shall notify the
Auction Agent and BD thereof. Any change in the
Broker-Dealer Fee
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Rate shall be effective on the Auction Date next
succeeding such change. The Broker-Dealer Fee Rate
shall be 0.125 % per annum.
ARTICLE III
MISCELLANEOUS
SECTION 3.01. ENTIRE AGREEMENT. This Amendment contains the entire
agreement between the parties relating to the subject matter hereof, and there
are no other representations, endorsements, promises, agreements or
understandings, oral, written or inferred, between the parties relating to the
subject matter hereof.
SECTION 3.02. SEVERABILITY. If any clause, provision or section of this
Amendment shall be ruled invalid or unenforceable by any court of competent
jurisdiction, the invalidity or unenforceability of such clause, provision or
section shall not affect any remaining clause, provision or section hereof.
SECTION 3.03. EXECUTION IN COUNTERPARTS. This Amendment may be executed
in several counterparts, each of which shall be an original and all of which
shall constitute but one and the same instrument.
SECTION 3.04. GOVERNING LAW. This Amendment shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 3.05. TERMINATION OF THIS AMENDMENT. This Amendment shall
expire on October 1, 2004 and each October 1 thereafter unless the fee described
in Section 2.05 of this Amendment is extended or modified for a subsequent year
by written notification from the Broker-Dealer to the Issuer and the Auction
Agent prior to each October 1. Any modification of the fee described in Section
2.05 of this Amendment shall be effective only upon execution of a letter
agreement or amendment to the Original Broker-Dealer Agreement executed by each
of the parties hereto.
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IN WITNESS WHEREOF, the parties hereto have caused this First Amendment
to Broker-Dealer Agreement to be duly executed and delivered by their proper and
duly authorized officers as of the date first above written.
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Auction Agent
By /s/ Xxxxx Xxxxx
___________________________________
Name Xxxxx Xxxxx
_________________________________
Title VP
________________________________
BANC OF AMERICA SECURITIES LLC
Broker-Dealer
By /s/ Xxxxxxxxxxx X. Xxxxx
___________________________________
Xxxxxxxxxxx X. Xxxxx, Managing Director
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