Exhibit 99.1
EXECUTION COPY
AUCTION AGENT AGREEMENT
by and among
CLASSNOTES TRUST 1997-I
as Issuer,
BANKERS TRUST COMPANY
as Indenture Trustee,
and
BANKERS TRUST COMPANY,
as Auction Agent
Dated as of December 24, 1997
Relating to
ASSET BACKED NOTES, CLASS 2
SERIES 1997-2
and
ASSET BACKED CERTIFICATES
TABLE OF CONTENTS
PAGE
Section 1. Definitions and Rules of Construction..................... 2
1.1 Terms Defined by Reference to First
Terms Supplement.......................................... 2
1.2 Terms Defined Herein...................................... 2
1.3 Rules of Construction..................................... 3
Section 2. The Auction............................................... 4
2.1 Incorporation by Reference of Auction
Procedures and Settlement Procedures...................... 4
2.2 Preparation of Each Auction; Maintenance
of Existing Owner Registry................................ 5
2.3 All Hold Rates, Maximum Auction
Rates, Net Loan Rate, One-Month LIBOR
and Three-Month LIBOR..................................... 8
2.4 Auction Schedule.......................................... 9
2.5 Changes in Auction Periods or Auction
Date......................................................11
2.6 Notice of Fee Rate Change.................................12
2.7 Notices To Existing Noteholders and
Existing Certificateholders...............................12
2.8 Payment Default...........................................12
2.9 Broker-Dealers............................................12
2.10 Access to and Maintenance of Auction
Records...................................................13
Section 3. [Reserved]................................................13
Section 4. [Reserved]................................................13
Section 5. Representations and Warranties of the
Auction Agent.............................................14
Section 6. The Auction Agent.........................................14
6.1 Duties and Responsibilities...............................14
6.2 Rights of the Auction Agent...............................14
6.3 Auction Agent's Disclaimer................................15
6.4 Compensation, Remedies and Indemnification................15
6.5 Compensation of the Broker-Dealers........................16
Section 7. Miscellaneous.............................................17
7.1 Term of Agreement.........................................17
7.2 Communications............................................18
7.3 Entire Agreement..........................................19
7.4 Benefits..................................................19
7.5 Amendment: Waiver.........................................19
7.6 Successor and Assigns.....................................20
7.7 Severability..............................................20
7.8 Execution in Counterparts.................................20
7.9 Governing Law.............................................20
7.9(A) No Petition...............................................20
7.10 Indenture Trustee.........................................20
EXHIBITS
Exhibit A - List of Initial Broker-Dealers
Exhibit B - Broker-Dealer Agreement
Exhibit C - [Reserved]
Exhibit D - Notice of Notes Outstanding
Exhibit E - Notice of Fee Rate Change
Exhibit F - Notice of a Payment Default
Exhibit G - Settlement Procedures
Exhibit H - Notice of Continuation of Auction Period
Exhibit I - Notice of Interest Rate
Exhibit J - Notice of Ratings
AUCTION AGENT AGREEMENT
THIS AUCTION AGENT AGREEMENT, dated as of December 24, 1997 (this
"Auction Agent Agreement"), is being entered into by and among CLASSNOTES TRUST
1997-I, a Pennsylvania business trust (together with any successors or assigns,
the "Issuer"), Bankers Trust Company, a New York banking corporation, as
Indenture Trustee (together with any successors or assigns, the "Indenture
Trustee") under a certain Master Indenture and First Terms Supplement, as
hereinafter defined and described, and Bankers Trust Company, a New York banking
corporation, (together with its successors and assigns, the "Auction Agent"),
acting not in its individual capacity but solely as agent for the Issuer.
The Issuer proposes to cause the Trustee to authenticate and deliver
up to $265,000,000 aggregate principal amount of its Asset-Backed Notes, Series
1997-2, Class A-4 (the "Class A-4 Notes"), Class A-5 (the "Class A-5 Notes")and
Class A- 6 the "Class A-6 Notes" and, together with the Class A-4 Notes and the
Class A-5 Notes, the "Series 1997-2 Notes"). The Series 1997-2 Notes will be
issued under the Second Terms Supplement (the "Second Terms Supplement"), dated
as of December 24, 1997, by and between the Issuer and the Indenture Trustee and
executed pursuant to an Indenture dated as of March 21, 1997 (as amended and
supplemented from time to time, the "Master Indenture"), by and between the
Indenture Trustee and the Issuer. After the applicable Initial Period, the Class
Interest Rate for the Class A-5 and Class A-6 Notes (the "Auction Rate Notes")
shall be based on the Auction Procedure. Pursuant to Section 2.5.5 of the Second
Terms Supplement, the Auction Agent has been appointed to act in the capacities
set forth in this Auction Agent Agreement with respect to the Auction Rate
Notes.
In connection with issuing the Series 1997-2 Notes, the Issuer
proposes to issue $15,000,000 aggregate principal amount of its Auction Rate
Asset-Backed Certificates, Class 2 (the "Certificates"). The Certificates will
be issued under the Second Trust Supplement, dated as of December 23, 1997
(herein, the "Trust Supplement") executed in accordance with the Trust
Agreement, dated as of March 21, 1997, as amended or supplemented from time to
time, the "Trust Agreement"), among Trans-World Insurance Company d/b/a/
Educaid, an Arizona corporation, and ClassNotes, Inc., as Depositors, and The
York Bank and Trust Company, a Pennsylvania bank and trust company, not in its
individual capacity but solely as Eligible Lender Trustee (the "Eligible Lender
Trustee"). The Certificates are being issued as auction rate securities.
Pursuant to Section 3.15 of the Trust Agreement and the related Appendix B, the
Auction Agent has been appointed to act in the capacities set forth in this
Auction Agent Agreement with respect to the Certificates.
The Indenture Trustee is entering into this Auction Agent Agreement at
the direction of the Issuer pursuant to the terms of the Second Terms
Supplement.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein, the Issuer, the Trustee and the Auction Agent agree
as follows:
Section 1. DEFINITIONS AND RULES OF CONSTRUCTION.
1.1 TERMS DEFINED BY REFERENCE. Capitalized terms used herein and not
otherwise defined herein shall have the meanings given such terms in the Master
Indenture, the Second Terms Supplement, the Trust Agreement, the Trust
Supplement or the Broker-Dealer Agreement.
1.2 TERMS DEFINED HEREIN. As used herein and in the Settlement
Procedures (as defined below), the following terms shall have the following
meanings, unless the context otherwise requires:
"AUCTION" shall have the meaning specified in Section 2.1 hereof.
"AUCTION AGENT FEE" shall have meaning specified in Section 6.4(b)
hereof.
"AUCTION AGENT FEE RATE" shall mean the rate per annum determined
pursuant to Section 6.4(b) hereof, as the same may be changed from time to time
in accordance with Section 6.4(b) hereof, at which the fee to be paid to the
Auction Agent for services rendered by it hereunder and under the Broker-Dealer
Agreements accrues pursuant to Section 6.4(b) hereof.
"AUCTION PROCEDURES" shall mean with respect to the Auction Rate
Notes, the provisions that are set forth in Sections 2.5 through 2.5.8,
inclusive, of the First Terms Supplement.
"AUCTION RATE NOTES" shall have the meaning specified in the second
paragraph of this Auction Agent Agreement.
"AUTHORIZED AUCTION AGENT OFFICER" shall mean, with respect to the
Auction Agent, each Managing Director, Vice President, Assistant Vice President,
and Assistant Treasurer of the Auction Agent and every other officer of the
Auction Agent assigned to its Corporate Trust Group and every other officer or
employee of the Auction Agent designated as an "Authorized Auction Agent
Officer" for purposes hereof in a communication to the Trustee and the Issuer.
"AUTHORIZED ISSUER OFFICER" shall mean any Authorized Officer (as
defined in Appendix A to the First Supplemental Sale and Servicing Agreement) of
the Eligible Lender Trustee or other person designated in writing by any of the
above-listed officers to the Auction Agent from time to time by the Issuer,
which writing may limit the functions which such other person may undertake as
an Authorized Issuer Officer hereunder.
"AUTHORIZED INDENTURE TRUSTEE REPRESENTATIVE" shall mean each Vice
President, Assistant Vice President, Assistant Secretary or Assistant Treasurer
in the Corporate Trust and Agency Group of the Indenture Trustee and every other
officer or employee of the Indenture Trustee designated as an "Authorized
Indenture Trustee Representative" for purposes hereof in a written communication
to the Auction Agent and the Issuer.
"BROKER-DEALER" shall mean a person listed on Exhibit A hereto as such
Exhibit A may be amended from time to time.
"BROKER-DEALER AGREEMENT" shall mean each agreement between the
Auction Agent and a Broker-Dealer substantially in the form attached hereto as
Exhibit B.
"BROKER-DEALER FEE" shall have the meaning specified in Section 6.5(a)
hereof.
"BROKER-DEALER FEE RATE" shall have the meaning specified in Section
6.5(b) hereof.
"EXISTING OWNER REGISTRY" shall mean the register maintained by the
Auction Agent pursuant to Section 2.2 hereof.
"NOTICE OF FAILURE TO DELIVER OR MAKE PAYMENT" shall mean a notice
substantially in the form of Exhibit D to the Broker-Dealer Agreement.
"NOTICE OF FEE RATE CHANGE" shall mean a notice substantially in the
form of Exhibit E hereof.
"NOTICE OF RATINGS" shall mean a notice substantially in the form of
Exhibit J hereto.
"NOTICE OF NOTES OUTSTANDING" shall mean a notice substantially in the
form of Exhibit D hereto.
"NOTICE OF A PAYMENT DEFAULT" shall mean a notice substantially in the
form of Exhibit F hereto.
"NOTICE OF TRANSFER" shall mean a notice substantially in the form of
Exhibit C to the Broker-Dealer Agreement.
"PARTICIPANT" shall mean a member of, or participant in, the
Securities Depository.
"SETTLEMENT PROCEDURES" shall mean the Settlement Procedures attached
as Exhibit G hereto.
1.3 RULES OF CONSTRUCTION. Unless the context or use indicates another
or different meaning or intent, the following rules shall apply to the
construction of this Auction Agent Agreement:
(a) Words importing the singular number shall include the
plural number and vice versa.
(b) The captions and headings herein are solely for
convenience of reference and shall not constitute a part of this Auction Agent
Agreement nor shall they affect its meaning, construction or effect.
(c) The words "hereof," "herein," "hereto" and other words
of similar import refer to this Auction Agent Agreement as a whole.
(d) All references herein to a particular time of day shall
be to New York City time.
Section 2. THE AUCTION.
2.1 INCORPORATION BY REFERENCE OF AUCTION PROCEDURES AND SETTLEMENT
PROCEDURES.
(a) During the applicable Initial Period, (x) each Class of
Auction Rate Notes shall bear interest at the initial Class Interest Rate as set
forth in the Second Terms Supplement and (y) the Certificates shall bear
interest at the Initial Certificate Rate as set forth in the Trust Agreement.
Thereafter, each Class of Auction Rate Notes shall bear interest at the
applicable Class Interest Rate and the Certificates shall bear interest at the
applicable Certificate Rate, in each case based on an Interest Period that shall
be an Auction Period. The Class Interest Rate or Certificate Rate, as the case
may be, for each applicable Auction Period shall be the lesser of (i) the Net
Loan Rate and (ii)(A) the Auction Rate determined in accordance with Section 2.4
and Section 2.5 of the Second Terms Supplement (not to exceed the applicable
Class Interest Rate Limitation) in the case of the Auction Rate Notes and (B)
the Auction Rate determined in accordance with Section 2.1 and Section 2.2 of
Appendix B of the Trust Agreement (not to exceed the Certificate Rate
Limitation) in the case of the Certificates. Pursuant to Section 2.5.5 of the
Second Terms Supplement, the Issuer has duly appointed Bankers Trust Company as
Auction Agent for purposes of the Auction Procedures and to perform such other
obligations and duties as are herein set forth. Bankers Trust Company hereby
accepts such appointment and agrees that, on each Auction Date, it shall follow
the procedures set forth in this Section 2 and the Auction Procedures for the
purpose of, among other things, determining the Auction Rate, and ultimately the
Class Interest Rate or Certificate Rate, as the case may be, for each Auction
Period other than the Initial Period. Each periodic operation of such procedures
is hereinafter referred to as an "Auction."
(b) All of the provisions contained in the Auction Procedures and
the Settlement Procedures are incorporated herein by reference in their entirety
and shall be deemed to be a part hereof to the same extent as if such provisions
were fully set forth herein.
2.2 PREPARATION OF EACH AUCTION; MAINTENANCE OF EXISTING OWNER
REGISTRY.
(a) A list of Broker-Dealers (showing Xxxxx Xxxxxx Inc. as the
sole initial Broker-Dealer) is attached as Exhibit A to this Auction Agent
Agreement. Not later than seven days prior to any Auction Date for which any
change in such list of Broker-Dealers is to be effective, the Indenture Trustee,
at the direction of an Authorized Issuer Officer, will notify the Auction Agent
and the Surety Provider in writing of such change and, if any such change is the
addition of a Broker-Dealer to such list, shall cause to be delivered to the
Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement
manually signed by such Broker-Dealer. 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) In the event that any day that is scheduled to be an Auction
Date shall be changed after the Auction Agent shall have given the notice of
such Auction Date pursuant to clause (vii) of paragraph (a) of the Settlement
Procedures, the Auction Agent, by such means as the Auction Agent deems
practicable, shall give notice of such change to the Broker- Dealers not later
than the earlier of 9:15 A.M., on the new Auction Date and 9:15 A.M. on the old
Auction Date.
(c) (i) The Auction Agent shall maintain a current registry of
Persons that are Broker-Dealers, compiled initially on the Closing
Date as described below, and that hold Auction Rate Notes or
Certificates for purposes of dealing with the Auction Agent in
connection with an Auction (such registry being herein called the
"Existing Owner Registry"). Such Persons shall constitute the
"Existing Noteholders" and "Existing Certificateholders,"
respectively, for purposes of dealing with the Auction Agent in
connection with an Auction. The Auction Agent shall indicate in the
Existing Owner Registry for each Existing Noteholder and Existing
Certificateholder the identity of the Broker-Dealer which submitted
the most recent Order in any Auction which resulted in such Existing
Noteholder or Existing Certificateholder continuing to hold or
purchasing the Auction Rate Notes or Certificates, as the case may be.
Pursuant to the Broker-Dealer Agreement, Xxxxx Xxxxxx Inc., as the
sole initial Broker-Dealer, has agreed to provide to the Auction Agent
on the Closing Date the names and addresses of the Persons who are to
be initially listed on the Existing Owner Registry as constituting the
initial Existing Noteholders and Existing Certificateholders for
purposes of dealing with the Auction Agent in connection with an
Auction. The Auction Agent may rely upon, as evidence of the
identities of the Existing Noteholders and Existing
Certificateholders, such list, the results of each Auction and notices
from any Existing Noteholder or Existing Certificateholder,
Participant of any Existing Noteholder or Existing Certificateholder
or Broker-Dealer of any Existing Noteholder or Existing
Certificateholder.
(ii) The Indenture Trustee shall notify the Auction Agent in
writing when any notice of principal payment of Auction Rate Notes is
sent to the Securities Depository as the owner of Auction Rate Notes
not later than 11:00 A.M., on the date such notice is sent. Such
notice shall be substantially in the form of Exhibit D, Notice of
Notes/Certificates Outstanding. In the event the Auction Agent
receives from the Indenture Trustee written notice of any payment of
principal of any Auction Rate Notes, the Auction Agent shall, at least
two Business Days prior to the next Auction applicable to such Class
of Auction Rate Notes, request each Participant to disclose to the
Auction Agent (upon selection by such Participant of the Existing
Noteholders whose Auction Rate Notes are to receive principal
payments) the aggregate principal amount of such Auction Rate Notes of
each such Existing Noteholder, if any, which are to be paid; provided
the Auction Agent has been furnished with the name and telephone
number of a person or department at such Participant from which it is
to request such information. In the absence of receiving any such
information with respect to any Existing Noteholder from such Existing
Noteholder's Participant or otherwise, the Auction Agent may continue
to treat such Existing Noteholder, as the beneficial owner of the
principal amount of Auction Rate Notes shown in the Existing Owner
Registry.
(iiii) The Eligible Lender Trustee shall notify the Auction
Agent in writing when any notice of principal payment of Certificates
is sent to the Securities Depository as the owner of Certificates not
later than 11:00 A.M., on the date such notice is sent. Such notice
shall be substantially in the form of Exhibit D, Notice of
Notes/Certificates Outstanding. In the event the Auction Agent
receives from the Eligible Lender Trustee written notice of any
payment of principal of any Certificates, the Auction Agent shall, at
least two Business Days prior to the next Auction applicable to the
Certificates, request each Participant to disclose to the Auction
Agent (upon selection by such Participant of the Existing
Certificateholders whose Certificates are to receive principal
payments) the aggregate principal amount of such Certificates of each
such Existing Certificateholder, if any, which are to be paid;
provided the Auction Agent has been furnished with the name and
telephone number of a person or department at such Participant from
which it is to request such information. In the absence of receiving
any such information with respect to any Existing Certificateholder
from such Existing Certificateholder's Participant or otherwise, the
Auction Agent may continue to treat such Existing Certificateholder,
as the beneficial owner of the principal amount of Certificates shown
in the Existing Owner Registry.
(iv) The Auction Agent shall be required to register in the
Existing Owner Registry a transfer of Auction Rate Notes or
Certificates from an Existing Noteholder or Certificateholder,
respectively, to another Person only if such transfer is made to a
Person through a Broker-Dealer and if (A) such transfer is pursuant to
an Auction or (B) the Auction Agent has been notified in writing (1)
in a notice substantially in the form of a Notice of Transfer by such
Existing Noteholder or Certificateholder, by the Participant of such
Existing Noteholder or Existing Certificateholder or by the
Broker-Dealer of such Existing Noteholder or Existing
Certificateholder of such transfer or (2) in a notice substantially in
the form of a Notice of Failure to Deliver or Make Payment by the
Broker-Dealer of any Person that purchased or sold Auction Rate Notes
or Certificates in an Auction of the failure of such Auction Rate
Notes or Certificates to be transferred as a result of the Auction.
The Auction Agent is not required to accept any Notice of Transfer or
Notice of Failure to Deliver or Make Payment delivered prior to an
Auction unless it is received by the Auction Agent by 3:00 P.M. on the
Business Day next preceding the applicable Auction Date.
(d) The Auction Agent may request that the Broker-Dealers, as set
forth in the Broker-Dealer Agreements, provide the Auction Agent with the
aggregate principal amount of Auction Rate Notes and Certificates held by such
Broker-Dealers for purposes of the Existing Owner Registry. Except as permitted
by Section 2.10 hereof, the Auction Agent shall keep confidential any such
information and shall not disclose any such information so provided to any
person other than the relevant Broker-Dealer, the Issuer and the Trustee,
provided that the Auction Agent reserves the right to disclose any such
information if it is advised by its counsel that its failure to do so would be
unlawful.
(e) The Auction Agent shall send by telecopy or other means as
soon as reasonably practicable, but in no event later than the next Business
Day, a copy of any Notice of Notes/ Certificates Outstanding received from the
Indenture Trustee or the Eligible Lender Trustee, as applicable, to each
Broker-Dealer in accordance with Section 4.3 of the applicable Broker-Dealer
Agreement.
(f) The Auction Agent shall be entitled to rely upon written
notices from the Administrator and the Eligible Lender Trustee as to
non-Business Days in California and Pennsylvania respectively.
2.3 ALL HOLD RATES, MAXIMUM AUCTION RATES, NET LOAN RATE, ONE-MONTH
LIBOR AND THREE-MONTH LIBOR.
(a) On each Auction Date, the Auction Agent shall determine the
All Hold Rate, the Maximum Auction Rate, the Net Loan Rate (as provided by the
Administrator) and One-Month LIBOR or Three-Month LIBOR, as applicable. Not
later than 9:30 A.M. on each Auction Date, the Auction Agent shall notify the
Indenture Trustee and the Broker-Dealers of the All Hold Rate, the Maximum
Auction Rate, the Net Loan Rate and One-Month LIBOR or Three-Month LIBOR, as
applicable, so determined. On or within three (3) Business Days after each
Closing Date, the Issuer shall give written notice to the Auction Agent of the
initial ratings on the applicable Notes by Moody's and Standard & Poor's
substantially in the form of the Notice of Ratings. Thereafter, if there is a
change in one or both of such ratings, the Issuer shall give written notice to
the Auction Agent substantially in the form of the Notice of Ratings within
three (3) Business Days of its receipt of notice of such change, but not later
than the close of business on the Business Day immediately preceding an Auction
Date if the Issuer has received written notice of such change in a rating or
ratings prior to 12:00 noon on such Business Day, and the Auction Agent shall
take into account such change in rating or ratings for purposes hereof and any
Auction so long as such Notice of Ratings is received by the Auction Agent no
later than the close of business on such Business Day.
(b) (i) If, on any Auction Date for an Auction Period, an Auction
is not held for any reason, then (except as provided in (ii) and (iii)
below) the Class Interest Rate on the applicable Class of Auction Rate
Notes, or the Certificate Rate for the Certificates, as the case may
be, for the next succeeding Auction Period shall be the Net Loan Rate.
(ii) If the ownership of the Auction Rate Notes or the
Certificates is no longer maintained in Book-entry Form by the
Securities Depository, no further Auctions shall be held and the Class
Interest Rate on each Class of Auction Rate Notes for each applicable
Interest Period commencing after the delivery of certificated Auction
Rate Notes pursuant to Section 2.15 of the Master Indenture, and the
Certificate Rate on the Certificates pursuant to Section 3.14 of the
Trust Agreement, shall equal the lesser of the Net Loan Rate and the
Maximum Auction Rate as determined by the Indenture Trustee on the
Business Day immediately preceding the first day of each such
applicable subsequent Interest Period as provided in the Second Terms
Supplement.
(iii) If a Payment Default shall have occurred, the Class
Interest Rate on each Class of Auction Rate Notes, and the Certificate
Rate on the Certificates, for each applicable Interest Period
commencing on or immediately after the occurrence of such Payment
Default, and for each Interest Period thereafter, to and including the
Interest Period, if any, during which, or commencing less than two
Business Days after, such Payment Default is cured or waived in
accordance with the Second Terms Supplement or Trust Agreement, shall
equal the Non-Payment Rate, as determined by the Indenture Trustee on
the first day of each such Interest Period as provided in the Second
Terms Supplement and the Trust Agreement. The Class Interest Rate on
each Class of Auction Rate Notes, and the Certificate Rate on the
Certificates, for each applicable Interest Period commencing at least
two Business Days after any cure or waiver of a Payment Default shall
be determined through implementation of the Auction Procedures.
2.4 AUCTION SCHEDULE. The Auction Agent shall conduct Auctions on the
Auction Date in accordance with the schedule set forth below. Such schedule may
be changed by the Auction Agent with the consent of the Indenture Trustee and
the Market Agent, which consent shall not be unreasonably withheld or delayed.
The Auction Agent shall give notice pursuant to Section 4.3 of the applicable
Broker-Dealer Agreement of any such change to each Broker-Dealer. Such notice
shall be given prior to the first Auction Date on which any such change shall be
effective.
By 9:30 A.M. The Auction Agent advises the Indenture
Trustee and the Broker-Dealers of the Maximum
Auction Rate, the All Hold Rate, the Net Loan Rate
(as provided by the Administrator) and One-Month
LIBOR or Three-Month LIBOR, as applicable, to be
used in determining the Auction Rate under the
Auction Procedures, the Second Terms Supplement,
the Trust Agreement and this Auction Agent
Agreement.
9:30 A.M. - 12:30 P.M. The Auction Agent assembles information
communicated to it by Broker-Dealers as provided
in Section 2.5.1(c)(i) of the Second Terms
Supplement or Section 2.2.1(c)(i) of Appendix B of
the Trust Agreement. The Submission Deadline is
12:30 P.M.
Not earlier than The Auction Agent makes the determination
12:30 P.M. pursuant to Section 2.5.1(c)(i) of the Second
Terms Supplement or Section 2.2.1(c)(i) of
Appendix B of the Trust Agreement.
By approximately The Auction Agent advises the Indenture
3:00 P.M.* or 4:00 P.M.** Trustee of the results of the Auction
as provided in Section 2.5.1(c)(ii) of the Second
Terms Supplement or the Eligible Lender Trustee of
the results of the Auction as provided in Section
2.2.1(c)(ii) of Appendix B of the Trust Agreement.
Submitted Bids and Submitted Sell Orders are
accepted and rejected in whole or in part and (X)
Auction Rate Notes allocated as provided in
Section 2.5.1(d) of the Second Terms Supplement or
(Y) Certificates allocated as provided in Section
2.2.1 of Appendix B of the Trust Agreement, as the
case may be.
* If the Class Interest Rate or the Certificate Rate, as the case may be,
is the Auction Rate.
** If the Class Interest Rate or the Certificate Rate, as the case may be,
is the Net Loan Rate.
The Auction Agent shall follow the notification procedures set forth
in paragraph (a) of the Settlement Procedures. In accordance with Section
2.5.1(c)(ii) of the Second Terms Supplement and Section 2.2.1(c)(ii) of Appendix
B of the Trust Agreement, the Auction Agent shall give written notice to the
Indenture Trustee, the Eligible Lender Trustee, the Administrator and Surety
Provider of each Class Interest Rate.
2.5 CHANGES IN AUCTION PERIODS OR AUCTION DATE.
(a) Changes in Auction Period or Periods.
(i) The Auction Agent shall mail any notice delivered
to it pursuant to (X) Section 2.5.7(a) of the First Terms Supplement
to the Existing Noteholders of the applicable Class of Auction Rate
Notes and (Y) Section 2.2.7(a) of Appendix B of the Trust Agreement to
the Existing Certificateholders, in either case, within the two
Business Days of its receipt thereof.
(ii) The Auction Agent shall deliver any certificate
delivered to it pursuant to Section 2.5.7(c) of the Second Terms
Supplement or 2.2.7(c) of Appendix B of the Trust Agreement to the
Broker-Dealers not later than 3:00 P.M on the Business Day before the
next Auction Date by telecopy or similar means.
(iii) If, after delivery to the Auction Agent of the
notice referred to in Section 2.5.7(a) of the Second Terms Supplement
or 2.2.7(a) of Appendix B of the Trust Agreement, the Auction Agent
fails to receive the certificate referred to in Section 2.5.7(c) of
the First Terms Supplement or 2.2.7(c) of Appendix B of the Trust
Agreement by 11:00 A.M on the Business Day before the next applicable
Auction Date, the Auction Agent shall deliver a notice of such failure
in substantially the form of Exhibit H hereto to the Broker-Dealers
not later than 3:00 P.M. on such Business Day by telecopy or other
similar means.
(iv) If, after delivery to the Auction Agent of the
notice referred to in Section 2.5.7(a) and the certificate referred to
in Section 2.5.7(c) of the Second Terms Supplement or the notice
referred to in 2.2.7(a) of Appendix B of the Trust Agreement and the
certificate referred to in 2.2.7(c) of Appendix B of the Trust
Agreement, Sufficient Bids for the applicable Class of Auction Rate
Notes or Certificates are not received by the Auction Agent by the
Submission Deadline, the Auction Agent shall deliver a notice in
substantially the form of Exhibit I hereto to the Broker-Dealers not
later than 3:00 P.M on such Auction Date by telephone confirmed in
writing the next Business Day.
(b) Changes in Auction Date. The Auction Agent shall mail any
notice delivered to it pursuant to Section 2.5.8 of the Second Terms Supplement
or 2.2.8 of Appendix B of the Trust Agreement to the Broker-Dealers within three
Business Days of its receipt thereof.
2.6 NOTICE OF FEE RATE CHANGE. If the Auction Agent Fee Rate is
changed pursuant to the provisions of Section 6.4(b) hereof or the Broker-Dealer
Fee Rate is changed pursuant to the provisions of 6.5(b) hereof, the Auction
Agent shall mail a Notice of Fee Rate Change (i) to the Indenture Trustee, the
Eligible Lender Trustee, the Administrator and the Surety Provider with respect
to a change in the Auction Agent Fee Rate and the Broker-Dealer Fee Rate and
(ii) to the Broker-Dealers with respect to a change in the Broker-Dealer Fee
Rate, in each case within two Business Days of such change.
2.7 NOTICES TO EXISTING NOTEHOLDERS AND EXISTING CERTIFICATEHOLDERS.
The Auction Agent shall be entitled to rely upon the address of each
Broker-Dealer as provided in Section 4.3 of the applicable Broker-Dealer
Agreement in connection with any notice to each Broker-Dealer, as an Existing
Noteholder or Existing Certificateholder, required to be given by the Auction
Agent.
2.8 PAYMENT DEFAULT.
(a) After delivery by the Indenture Trustee to the Auction Agent
of a notice that a Payment Default shall have occurred, the Auction Agent shall
on the Business Day following its receipt of the same deliver a Notice of
Payment Default to the Broker-Dealers by telecopy or other similar means.
(b) The Auction Agent shall deliver a copy of any notice received
by it from the Indenture Trustee to the effect that a Payment Default has been
cured to the Broker-Dealers on the Business Day following its receipt of the
same by telecopy or other similar means.
2.9 BROKER-DEALERS.
(a) If the Auction Agent is provided with a copy of a
Broker-Dealer Agreement, which has been manually signed, with any person listed
on Exhibit A hereto to which the Indenture Trustee, at the direction of an
Authorized Officer of the Administrator, and the Surety Provider shall have
consented, it shall enter into such Broker-Dealer Agreement with such person.
The Issuer hereby directs the Indenture Trustee to consent to Xxxxx Xxxxxx Inc.
as the initial Broker-Dealer.
(b) The Auction Agent may, at the written direction of an
Authorized Issuer Officer, and with the approval of the Surety Provider and the
prior written consent of Xxxxx Xxxxxx Inc., so long as Xxxxx Xxxxxx Inc. is
acting as a Broker-Dealer, enter into a Broker-Dealer Agreement with any other
person who requests to be selected to act as a Broker-Dealer. 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.
(c) The Auction Agent shall terminate any Broker-Dealer Agreement
as set forth therein at the direction of an Authorized Issuer Officer.
2.10 ACCESS TO AND MAINTENANCE OF AUCTION RECORDS. The Auction Agent
shall afford to the Indenture Trustee, the Issuer, their respective agents
independent public accountants and counsel, access at reasonable times during
normal business hours to review and make extracts or copies (at no cost to the
Auction Agent) of all books, records, documents and other information concerning
the conduct and results of Auctions, provided that any such agent, accountant,
or counsel shall furnish the Auction Agent with a letter from the Indenture
Trustee or the Issuer requesting that the Auction Agent afford such person
access. The Auction Agent shall maintain records relating to any Auction for a
period of two years after such Auction (unless requested by the Indenture
Trustee or the Issuer to maintain such records for such longer period not in
excess of four years, then for such longer period), and such records shall, in
reasonable detail, accurately and fairly reflect the actions taken by the
Auction Agent hereunder. At the end of such period, the Auction Agent shall
deliver such records to the Indenture Trustee, if so requested. The Indenture
Trustee and the Issuer agree to keep any information regarding the conduct and
results of the Auctions, including without limitation information regarding
customers of any Broker-Dealer, received from the Auction Agent in connection
with this Auction Agent Agreement confidential and shall not disclose such
information or permit the disclosure of such information without the prior
written consent of the applicable Broker-Dealer to anyone except such agent,
accountant or counsel engaged to audit or review the results of Auctions as
permitted by this Section 2.10, except as may otherwise be required by
applicable law or regulation. Any such agent, accountant or counsel, before
having access to such information, shall agree to keep such information
confidential and not to disclose such information or permit disclosure of such
information without the prior written consent of the applicable Broker-Dealer,
except as may otherwise be required by applicable law or regulation.
Section 3. [Reserved].
Section 4. [Reserved].
Section 5. REPRESENTATIONS AND WARRANTIES OF THE AUCTION AGENT. The
Auction Agent hereby represents and warrants to the Issuer that:
5.1 The Auction Agent (i) has been duly incorporated and is validly
existing and in good standing as a banking corporation under the laws of the
State of New York, and (ii) has all necessary authority to enter into and
perform its obligations under this Auction Agent Agreement. This Auction Agent
Agreement has been duly and validly authorized, executed and delivered by the
Auction Agent and, assuming it is a legal, valid and binding agreement among the
other parties thereto, constitutes the legal, valid, binding and enforceable
obligation of the Auction Agent.
Section 6. THE AUCTION AGENT.
6.1 DUTIES AND RESPONSIBILITIES.
(a) The Auction Agent is acting solely as agent of the Issuer and
owes no fiduciary duties to any person (other than the Issuer) by reason of this
Auction Agent Agreement. The Auction Agent undertakes to perform such duties and
only such duties as are specifically set forth in this Auction Agent Agreement,
and no implied covenants or obligations shall be read into this Auction Agent
Agreement by means of the provisions of the Second Terms Supplement, the Trust
Agreement, anything set forth in the Prospectus or Prospectus Supplement forming
a part of the Registration Statement on Form S-3 (No. 333-10877), anything set
forth in the Private Placement Memorandum dated December 22, 1997, or any other
offering material prepared in connection with the offer and sale of the Auction
Rate Notes and Certificates, or otherwise against the Auction Agent.
(b) 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 this Auction Agent Agreement. The Auction Agent 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.
(c) The Auction Agent shall not agree to any amendment to a
Broker-Dealer Agreement without the prior written consent of the Issuer, which
consent shall not be unreasonably withheld.
6.2 RIGHTS OF THE AUCTION AGENT.
(a) The Auction Agent may rely and shall be protected in acting
or refraining from acting upon any communication authorized hereby and upon any
written instruction, notice, request, direction, consent, report, certificate,
form of bond certificate or other instrument, paper or document believed by it
to be genuine. The Auction Agent shall not be liable for acting upon any
telephone communication authorized hereby which the Auction Agent believes in
good faith to have been given by the Indenture Trustee, the Issuer, the
Administrator or by a Broker-Dealer. The Auction Agent may record telephone
communications with the Indenture Trustee or with Broker-Dealers or both.
(b) The Auction Agent may consult with counsel of its choice, and
the advice of such counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon.
(c) The Auction Agent shall not be required to advance, expend or
risk its own funds or otherwise incur or become exposed to financial liability
in the performance of its duties hereunder.
(d) The Auction Agent may perform its duties and exercise its
rights hereunder either directly or by or through agents or attorneys and shall
not be responsible for any misconduct or negligence on the part of any agent or
attorney appointed by it with due care hereunder.
6.3 AUCTION AGENT'S DISCLAIMER. The Auction Agent makes no
representation as to the validity, adequacy or accuracy of the recitals in this
Auction Agent Agreement or the Broker-Dealer Agreement or the validity, adequacy
or accuracy of the Auction Rate Notes and Certificates.
6.4 COMPENSATION, REMEDIES AND INDEMNIFICATION.
(a) [Reserved]
(b) For each Interest Period, commencing on the Closing Date, the
Auction Agent shall be entitled to a fee in an amount equal to the product of
(i) the Auction Agent Fee Rate times (ii) a fraction, the numerator of which is
the number of days in such Auction Period and the denominator of which is 360,
times (iii) the aggregate principal amount of Outstanding Notes of the
applicable Class of Auction Rate Notes or Outstanding Certificates, as the case
may be, at the close of business on the applicable Note Record Date or
Certificate Record Date (the "Auction Agent Fee"). The Auction Agent Fee Rate
may be adjusted from time to time with the written approval of the Administrator
and the Surety Provider upon a written request of the Auction Agent delivered to
the Indenture Trustee and the Issuer. The initial Auction Agent Fee Rate shall
be .2675% per annum. Any change in the Auction Agent Fee Rate shall be effective
on the Auction Date next succeeding such change. The Auction Agent Fee shall be
paid monthly, in arrears, by the Indenture Trustee on the first Note
Distribution Date, for all Classes of Notes, occurring in each month (or if in
any such month a Certificate Distribution Date occurs prior to such first Note
Distribution Date, on such Certificate Distribution Date), commencing January
1998. Such fee shall be paid in the manner set forth in Section 5.5 of the Sale
and Servicing Agreement.
(c) The Administrator, on behalf of the Issuer, shall indemnify
and hold harmless the Auction Agent for and against any loss, liability or
expense incurred without negligence or bad faith on the Auction Agent's part,
arising out of or in connection with the acceptance or administration of its
agency under this Auction Agent Agreement and the Broker-Dealer Agreements,
including the reasonable costs and expenses (including the reasonable fees and
expenses of its counsel) of defending itself against any such claim or liability
in connection with its exercise or performance of any of its duties hereunder
and thereunder and of enforcing this indemnification provision; provided that
the Administrator, on behalf of the Issuer, shall not indemnify the Auction
Agent pursuant to this Section 6.4(c) for any fees and expenses incurred by the
negligence or willful misconduct of the Auction Agent or incurred by the Auction
Agent in the normal course of performing its duties hereunder and under the
Broker-Dealer Agreements, such fees and expenses being payable as provided in
Section 6.4(b) above.
6.5 COMPENSATION OF THE BROKER-DEALERS.
(a) On the first Note Distribution Date for all Classes of Notes
issued by the Issuer occurring in each month (or if in any such month a
Certificate Distribution Date occurs prior to such first Note Distribution Date,
on such Certificate Distribution Date), commencing January 1998, the Auction
Agent shall pay each applicable Broker-Dealer the fee (the "Broker-Dealer Fee")
required to be paid to each such Broker-Dealer pursuant to Section 2.5 of the
Broker-Dealer Agreement.
(b) After retaining the Auction Agent Fee as provided in Section
6.4 above, the Auction Agent shall pay the Broker-Dealer Fee as provided in
Section 6.5(a) above solely out of amounts received by the Auction Agent
pursuant to Section 2.5.2(b) of the Second Terms Supplement and 2.2.2(b) of
Appendix B of the Trust Agreement. The Broker-Dealer Fee Rate may be adjusted
from time to time with the approval of an Authorized Issuer Officer upon a
written request of the Auction Agent or Xxxxx Xxxxxx Inc., as sole Initial
Broker-Dealer, delivered to the Indenture Trustee and the Issuer. The initial
Broker-Dealer Fee Rate shall be .25% per annum. If the Broker-Dealer Fee Rate is
changed pursuant to the terms hereof, the Indenture Trustee shall notify the
Auction Agent thereof. Any changes in the Broker-Dealer Fee Rate shall be
effective on the Auction Date next succeeding such change; provided, however,
that such Broker-Dealer Fee Rate will not be increased without the Surety
Provider's prior written consent.
Section 7. MISCELLANEOUS.
7.1 TERM OF AGREEMENT.
(a) This Auction Agent Agreement shall terminate on the earlier
to occur of (i) the satisfaction and discharge of the Second Terms Supplement
with respect to the Auction Rate Notes, the Trust Agreement with respect to the
Certificates or this Auction Agent Agreement and (ii) the date on which this
Auction Agent Agreement is terminated in accordance with this Section 7.1. The
Indenture Trustee may terminate this Auction Agent Agreement in accordance with
Section 2.5.5(a) of the First Terms Supplement. The Auction Agent may terminate
this Auction Agent Agreement upon written notice to the Indenture Trustee, the
Issuer and the Market Agent on the date specified in such notice, which date
shall be no earlier than 90 days after the date of delivery of such notice.
Notwithstanding the foregoing, the provisions of Section 2 hereof shall
terminate (X) with respect to the Auction Rate Notes, upon the delivery of
certificates representing Auction Rate Notes pursuant to Section 2.15 of the
Master Indenture and (Y) with respect to the Certificates upon the delivery of
the certificates representing the Certificates pursuant to Section 3.14 of the
Trust Agreement. Notwithstanding the foregoing, the Auction Agent may terminate
this Agreement without further notice if, within 25 days after notifying in
writing the Indenture Trustee, the Issuer, the Surety Provider and the Market
Agent that it has not received payment of any Auction Agent Fee due it in
accordance with the terms hereof, the Auction Agent does not receive such
payment. Any resignation of the Auction Agent or termination of the Auction
Agent Agreement, other than as described in the preceding sentence of this
paragraph, shall not become effective until a successor Auction Agent has been
appointed and acceptance of such appointment by such successor Auction Agent.
However, if a successor Auction Agent shall not have been appointed within 60
days from the date of such notice of resignation, the resigning Auction Agent
may petition any court of competent jurisdiction for the appointment of a
successor Auction Agent.
(b) Except as otherwise provided in this Section 7.1(b), the
respective rights and duties of the Indenture Trustee, the Issuer and the
Auction Agent under this Auction Agent Agreement shall cease upon termination of
this Auction Agent Agreement. The Administrator's obligations to the Auction
Agent under Section 6.4(c) hereof shall survive the termination of this Auction
Agent Agreement subject to Section 7.10 hereof. Upon termination of this Auction
Agent Agreement, the Auction Agent shall promptly deliver to the Trustee copies
of all books and records maintained by it with respect to the Auction Rate Notes
in connection with its duties hereunder.
7.2 COMMUNICATIONS. Except for (i) communications authorized to be
made by telephone pursuant to this Auction Agent Agreement or the Auction
Procedures and (ii) communications in connection with Auctions (other than those
expressly required to be in writing), all notices, requests and other
communications to any party hereunder shall be in writing (including facsimile
or similar writing) and shall be given to such party addressed to it at its
address, or facsimile number set below:
If to the Indenture
Trustee, addressed: Bankers Trust Company
0 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust and Agency
Group, Structured Finance Team
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Issuer,
addressed: The York Bank and Trust Company,
c/o Dauphin Deposit Bank and Trust Company
000 Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Corporate Trust Services
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to
the Administrator: c/o The Money Store Inc.
0000 Xxxxxx Xxxxxx
Xxxxx, Xxx Xxxxxx
Attention: Chief Financial Officer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Auction Agent,
addressed: Bankers Trust Company
0 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Auction Rate Securities
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Market Agent,
addressed: Xxxxx Xxxxxx Inc.
000 Xxxxxxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Manager, Auction Rate
Products Group
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Surety
Provider, addressed: Ambac Assurance Corporation
Xxx Xxxxx Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Structured Finance
Department/Student Loans
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
or such other address, telephone or facsimile number as such party may hereafter
specify for such purpose by notice in writing to the other party. Each such
notice, request or communication shall be effective when delivered at the
address specified herein. Communications shall be given on behalf of the
Indenture Trustee by an Authorized Trustee Representative, on behalf of the
Auction Agent by an Authorized Auction Agent Officer and on behalf of the Issuer
by an Authorized Issuer Officer.
7.3 ENTIRE AGREEMENT. This Auction Agent Agreement 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.
7.4 BENEFITS. Nothing herein, express or implied, shall give to any
person, other than the Indenture Trustee, acting on behalf of the beneficial
Owners, the Auction Agent, the Issuer and their respective successors and
assigns, any benefit of any legal or equitable right, remedy or claim hereunder.
7.5 AMENDMENT: WAIVER.
(a) This Auction Agent Agreement shall not be deemed or construed
to be modified, amended, rescinded, canceled or waived, in whole or in part,
except by a written instrument signed by duly authorized representatives of the
parties hereto.
(b) The Indenture Trustee and the Issuer shall not enter into or
approve any amendment of or supplement to the Second Terms Supplement which
materially affects the Auction Agent's duties or obligations under the Second
Terms Supplement without obtaining the prior written consent of the Auction
Agent. The Indenture Trustee shall promptly notify the Auction Agent of any
amendment of or supplement to the Second Terms Supplement and shall provide a
copy thereof to the Auction Agent upon request.
(c) Failure of a party hereto to exercise any right or remedy
hereunder in the event of a breach hereof by any other party shall not
constitute a waiver of any such right or remedy with respect to any subsequent
breach.
7.6 SUCCESSOR AND ASSIGNS. This Auction Agent Agreement shall be
binding upon, inure to the benefit of, and be enforceable by, the respective
successors and assigns of each of the Indenture Trustee, the Issuer and the
Auction Agent. This Auction Agent Agreement may not be assigned by any party
hereto absent the prior written consent of the other parties hereto, which
consents shall not be unreasonably withheld.
7.7 SEVERABILITY. If any clause, provision or section hereof 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 of the remaining clauses, provisions or sections hereof.
7.8 EXECUTION IN COUNTERPARTS. This Auction Agent Agreement 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.
7.9 GOVERNING LAW. This Auction Agent Agreement shall be governed by
and construed in accordance with the laws of the State of New York applicable to
agreements made and to be performed in such state.
7.9(A) NO PETITION. The Auction Agent, by entering into this Auction
Agent Agreement, hereby covenants and agrees that it will not at any time
institute against the Sellers or the Issuer, or join in any institution against
the Sellers or the Issuer of, any bankruptcy, reorganization, arrangement,
insolvency, receivership or liquidation proceedings, or other proceedings under
any United States Federal or State bankruptcy or similar law in connection with
any obligations relating to this Auction Agent Agreement or any of the other
Basic Documents.
7.10 INDENTURE TRUSTEE. All privileges, rights and immunities given to
the Indenture Trustee in the First Terms Supplement are hereby extended to and
applicable to the Indenture Trustee's obligations hereunder.
IN WITNESS WHEREOF, the parties hereto have caused this Auction Agent Agreement
to be duly executed and delivered by their proper and duly authorized officers
as of the date first above written.
CLASSNOTES TRUST 1997-I
By: THE YORK BANK AND TRUST
COMPANY, not in its individual
capacity but solely as
Eligible Lender Trustee,
By:/S/ Xxxxxxx X. Xxxx
Name: Xxxxxxx X. Xxxx
Title: Vice President
BANKERS TRUST COMPANY, not in its
individual capacity but solely as
Indenture Trustee
By:/s/ Xxxxx Xxxxxxxx
Name: Xxxxx Xxxxxxxx
Title: Assistant Vice President
BANKERS TRUST COMPANY,
as Auction Agent
By:/s/ Xxxxxxx Xxxxxxxx
Name: Xxxxxxx Xxxxxxxx
Title: Assistant Vice President
The Administrator hereby accepts its obligations hereunder, including those
pursuant to Section 6.4 hereof.
TRANS-WORLD INSURANCE
COMPANY, D/B/A EDUCAID
By: /s/ Xxxxxxx Xxxxxx
Name: Xxxxxxx Xxxxxx
Title: Senior Vice President
EXHIBIT A
TO AUCTION AGENT AGREEMENT
LIST OF INITIAL BROKER-DEALERS
Xxxxx Xxxxxx Inc.
EXHIBIT B
TO AUCTION AGENT AGREEMENT
BROKER-DEALER AGREEMENT
EXHIBIT C
[RESERVED]
EXHIBIT D
TO AUCTION AGENT AGREEMENT
NOTICE OF NOTES/CERTIFICATES OUTSTANDING
CLASSNOTES TRUST 1997-I
ASSET BACKED NOTES, SERIES 1997-2, CLASS A-5 and CLASS A-6
AUCTION RATE ASSET BACKED CERTIFICATES
NOTICE IS HEREBY GIVEN that $________________ aggregate principal amount of
[Class A-5 and A-6 Notes][Certificates] were Outstanding at the close of
business on the immediately preceding Record Date. Such aggregate principal
amount of [Class A-_ Notes][Certificates], less $___________________ aggregate
principal amount of [Class A-5 and A-6 Notes][Certificates] to be repaid by the
Issuer pursuant to the [First Terms Supplement][Trust Agreement], for a net
aggregate principal amount of [Class A-5 and A-6 Notes] [Certificates] of
$__________ Notes][Certificates] of $_______________ will be available on the
next Auction scheduled to be held on ---------------------.
Terms used herein have the meanings set forth in the Second Terms Supplement and
Trust Agreement relating to the above-referenced issue.
BANKERS TRUST COMPANY as
Indenture Trustee
By:__________________________
Name:
Title:
Date:
EXHIBIT E
TO AUCTION AGENT AGREEMENT
NOTICE OF FEE RATE CHANGE
CLASSNOTES TRUST 1997-I
ASSET BACKED NOTES, SERIES 1997-2
AUCTION RATE ASSET BACKED CERTIFICATES
NOTICE IS HEREBY GIVEN that the [Auction Agent Fee Rate] [Broker- Dealer Fee
Rate] has been changed in accordance with Section [6.4(b)] [6.5(b)] of the
Auction Agent Agreement. The new [Auction Agent Fee Rate] [Broker-Dealer Fee
Rate] shall be % of 1% per annum.
Terms used herein have the meanings set forth in the Second Terms Supplement and
Trust Agreement relating to the above-referenced issue.
BANKERS TRUST COMPANY, as Auction
Agent
By:______________________________
Name:
Title:
Date:
APPROVED:
CLASSNOTES TRUST 1997-I
By: THE YORK BANK AND
TRUST COMPANY, not in its
individual capacity but
solely as Eligible Lender
Trustee
By: ______________________________
Name:
Title:
EXHIBIT F
TO AUCTION AGENT AGREEMENT
NOTICE OF A PAYMENT DEFAULT
CLASSNOTES TRUST 1997-I
ASSET BACKED NOTES, SERIES 1997-2
AUCTION RATE ASSET BACKED CERTIFICATES
NOTICE IS HEREBY GIVEN that a Payment Default has occurred and not been cured.
Determination of the Class Interest Rate on the Auction Rate Notes and the
Certificate Rate on the Certificates pursuant to the Auction Procedures will be
suspended. The Class Interest Rate on each Class of Auction Rate Notes and the
Certificates for each applicable Auction Period commencing after the date of
Payment Default will equal the Non-Payment Rate as it is determined by the
Trustee on the first day of such Auction Period.
Terms used herein have the meanings set forth in the Second Terms Supplement and
the Trust Agreement relating to the above-referenced issue.
BANKERS TRUST COMPANY, as Auction
Agent
By:_______________________________
Name:
Title:
Date:
EXHIBIT G
TO AUCTION AGENT AGREEMENT
SETTLEMENT PROCEDURES
If not otherwise defined below, capitalized terms used herein shall
have the meanings given such terms in the Second Terms Supplement and the Trust
Agreement.
(a) Not later than (1) 3:00 P.M. if the Class Interest Rate for a
Class of Auction Rate Notes or the Certificate Rate for the Certificates, as the
case may be, is the Auction Rate or (2) 4:00 P.M. if the Class Interest Rate for
a Class of Auction Rate Notes or the Certificate Rate for the Certificates, as
the case may be, is the Net Loan Rate on each Auction Date, the Auction Agent
shall notify by telephone each Broker-Dealer that participated in the Auction
held on such Auction Date and submitted an Order on behalf of an Existing
Noteholder or Existing Certificateholder or Potential Noteholder or Potential
Certificateholder:
(i) the Class Interest Rate for the applicable Class of Auction
Rate Notes or Certificate Rate fixed for the next Interest Period;
(ii) whether there were Sufficient Bids in such Auction;
(iii) if such Broker-Dealer (a "Seller's Broker- Dealer")
submitted Bids or Sell Orders on behalf of an Existing Noteholder or
Existing Certificateholder, whether such Bid or Sell Order was accepted or
rejected, in whole or in part, and the principal amount of the applicable
Class of Auction Rate Notes or Certificates, if any, to be sold by such
Existing Noteholder or Existing Certificateholder;
(iv) if such Broker-Dealer (a "Buyer's Broker-Dealer") submitted
a Bid on behalf of a Potential Noteholder or Potential Certificateholder,
whether such Bid was accepted or rejected, in whole or in part, and the
principal amount of the applicable Class of Auction Rate Notes or
Certificates, if any, to be purchased by such Potential Noteholder or
Potential Certificateholder;
(v) if the aggregate amount of Auction Rate Notes to be sold by
all Existing Noteholders, or Certificates to be sold by all Existing
Certificateholders, on whose behalf such Seller's Broker-Dealer submitted
Bids or Sell Orders exceeds the aggregate principal amount of Auction Rate
Notes or Certificates, as the case may be, to be purchased by all Potential
Noteholders or Potential Certificateholders on whose behalf such Buyer's
Broker-Dealer submitted a Bid, the name or names of one or more Buyer's
Broker-Dealers (and the name of the Participant, if any, of each such
Buyer's Broker-Dealer) acting for one or more purchasers of such excess
principal amount of Auction Rate Notes or Certificates and the principal
amount of Auction Rate Notes or Certificates to be purchased from one or
more Existing Noteholders or Existing Certificateholders on whose behalf
such Seller's Broker-Dealer acted by one or more Potential Noteholders or
Potential Certificateholders on whose behalf each of such Buyer's
Broker-Dealers acted;
(vi) if the principal amount of Auction Rate Notes or
Certificates to be purchased by all Potential Noteholders or Potential
Certificateholders on whose behalf such Buyer's Broker-Dealer submitted a
Bid exceeds the amount of Auction Rate Notes or Certificates to be sold by
all Existing Noteholders or Existing Certificateholders on whose behalf
such Sellers' Broker-Dealer submitted a Bid or a Sell Order, the name or
names of one or more Sellers' Broker-Dealers (and the name of the
Participant, if any, of each such Seller's Broker-Dealer) acting for one or
more sellers of such excess principal amount of Auction Rate Notes or
Certificates and the principal amount of Auction Rate Notes or Certificates
to be sold to one or more Potential Noteholders or Potential
Certificateholders on whose behalf such Buyer's Broker-Dealer acted by one
or more Existing Noteholders or Existing Certificateholders on whose behalf
each of such Seller's Broker-Dealers acted; and
(vii) the Auction Date for the next succeeding Auction.
(b) On each Auction Date, each Broker-Dealer that submitted an Order
on behalf of any Existing Noteholder or Existing Certificateholder or Potential
Noteholder or Potential Certificateholder shall:
(i) advise each Existing Noteholder or Existing Certificateholder
and Potential Noteholder or Potential Certificateholder on whose behalf
such Broker-Dealer submitted a Bid or Sell Order in the Auction on such
Auction Date whether such Bid or Sell Order was accepted or rejected, in
whole or in part;
(ii) in the case of a Broker-Dealer that is a Buyer's
Broker-Dealer, advise each Potential Noteholder or Potential
Certificateholder on whose behalf such Buyer's Broker-Dealer submitted a
Bid that was accepted, in whole or in part, to instruct such Potential
Owner's Participant to pay such Buyer's Broker-Dealer (or its Participant)
through the Securities Depository the amount necessary to purchase the
principal amount of Auction Rate Notes or Certificates to be purchased
pursuant to such Bid against receipt of such Auction Rate Notes or
Certificates, together with accrued interest;
(iii) in the case of a Broker-Dealer that is a Seller's
Broker-Dealer, instruct each Existing Noteholder or Existing
Certificateholder on whose behalf such Seller's Broker-Dealer submitted a
Sell Order that was accepted, in whole or in part, or a Bid that was
accepted, in whole or in part, to instruct such Existing Noteholder's or
Existing Certificateholder's Participant to deliver to such Seller's
Broker-Dealer (or its Participant) through the Securities Depository the
principal amount of Auction Rate Notes or Certificates to be sold pursuant
to such Order against payment therefor;
(iv) advise each Existing Noteholder or Existing
Certificateholder on whose behalf such Broker-Dealer submitted an Order and
each Potential Noteholder or Potential Certificateholder on whose behalf
such Broker- Dealer submitted a Bid of the Auction Rate for the next
Interest Period;
(v) advise each Existing Noteholder or Existing Certificateholder
on whose behalf such Broker-Dealer submitted an Order of the next Auction
Date; and
(vi) advise each Potential Noteholder or Potential
Certificateholders on whose behalf such Broker-Dealer submitted a Bid that
was accepted, in whole or in part, of the next Auction Date.
(c) on the basis of the information provided to it pursuant to
paragraph (a) above, each Broker-Dealer that submitted a Bid or Sell Order in an
Auction is required to allocate any funds received by it in connection with such
Auction pursuant to paragraph (b)(ii) above, and any Auction Rate Notes or
Certificates received by it in connection with such Auction pursuant to
paragraph (b)(iii) above among the Potential Noteholders or Potential
Certificateholders, if any, on whose behalf such Broker-Dealer submitted Bids,
the Existing Noteholders or Existing Certificateholders, if any, on whose behalf
such Broker-Dealer submitted Bids or Sell Orders in such Auction, and any
Broker-Dealers identified to it by the Auction Agent following such Auction
pursuant to paragraph (a)(v) or (a)(vi) above.
(d) on each Auction Date:
(i) each Potential Noteholder or Potential Certificateholder and
Existing Noteholder or Existing Certificateholder with an Order in the
Auction on such Auction Date shall instruct its Participant as provided in
(b)(ii) or (b)(iii) above, as the case may be;
(ii) each Seller's Broker-Dealer that is not a Participant of the
Securities Depository shall instruct its Participant to deliver such
Auction Rate Notes or Certificates through the Securities Depository to a
Buyer's Broker-Dealer (or its Participant) identified to such Seller's
Broker-Dealer pursuant to (a)(v) above against payment therefor; and
(iii) each Buyer's Broker-Dealer that is not a Participant in the
Securities Depository shall instruct its Participant to pay through the
Securities Depository to Seller's Broker-Dealer (or its Participant)
identified following such Auction pursuant to (a)(vi) above in the amount
necessary to purchase Auction Rate Notes or Certificates to be purchased
pursuant to (b)(ii) above against receipt of such Auction Rate Notes or
Certificates.
(e) on the Business Date following each Auction Date:
(i) each Participant for a Bidder in the Auction on such Auction
Date referred to in (d)(i) above shall instruct the Securities Depository
to execute the transactions described under (b)(ii) or (b)(iii) above for
such Auction, and the Securities Depository shall execute such
transactions;
(ii) each Seller's Broker-Dealer or its Participant shall
instruct the Securities Depository to execute the transactions described in
(d)(ii) above for such Auction, and the Securities Depository shall execute
such transactions; and
(iii) each Buyer's Broker-Dealer or its Participant shall
instruct the Securities Depository to execute the transactions described in
(d)(iii) above for such Auction, and the Securities Depository shall
execute such transactions.
(f) If an Existing Noteholder selling Notes or an Existing
Certificateholder selling Certificates in an Auction fails to deliver such
Auction Rate Notes or Certificates (by authorized book-entry), a Broker-Dealer
may deliver to the Potential Noteholder or Potential Certificateholder on behalf
of which it submitted a Bid that was accepted a principal amount of Auction Rate
Notes or Certificates that is less than the principal amount of Auction Rate
Notes or Certificates that otherwise was to be purchased by such Potential
Noteholder or Potential Certificateholder. In such event, the principal amount
of Auction Rate Notes or Certificates to be so delivered shall be determined
solely by such Broker-Dealer (but only in Authorized Denominations). Delivery of
such lesser principal amount of Auction Rate Notes or Certificates shall
constitute good delivery. Notwithstanding the foregoing terms of this paragraph
(f), any delivery or nondelivery of Auction Rate Notes or Certificates which
shall represent any departure from the results of an Auction, as determined by
the Auction Agent, shall be of no effect unless and until the Auction Agent
shall have been notified of such delivery or nondelivery in accordance with the
provisions of the Auction Agent Agreement and the Broker-Dealer Agreements.
Neither the Indenture Trustee nor the Auction Agent will have any responsibility
or liability with respect to the failure of a Potential Noteholder or Potential
Certificateholder, Existing Noteholder or Existing Certificateholder or their
respective Broker-Dealer or Participant to take delivery of or deliver, as the
case may be, the principal amount of Auction Rate Notes or Certificates
purchased or sold pursuant to an Auction or otherwise.
EXHIBIT H
TO AUCTION AGENT AGREEMENT
NOTICE OF CONTINUATION OF AUCTION PERIOD
CLASSNOTES TRUST 1997-I
ASSET BACKED NOTES, SERIES 1997-2
AUCTION RATE ASSET BACKED CERTIFICATES
NOTICE IS HEREBY GIVEN that a condition for the establishment of a change in the
length of one or more Auction Periods for the Series 1997-2, Class A-5 and A-6
Notes and Certificates has not been met. An Auction will therefore be held on
the next Auction Date (_____________________) and the length of such Auction
Period shall remain an Auction Period of days.
BANKERS TRUST COMPANY,
as Auction Agent
By:___________________________________
Name:
Title:
Date:
EXHIBIT I
TO AUCTION AGENT AGREEMENT
NOTICE OF INTEREST RATE
CLASSNOTES TRUST 1997-I
ASSET BACKED NOTES, SERIES 1997-2
AUCTION RATE ASSET BACKED CERTIFICATES
NOTICE IS HEREBY GIVEN that [the Issuer Certificate and the Indenture Trustee
written statements, if any,] [Sufficient Bids] necessary for the establishment
of a change in the length of one or more Auction Periods for the Series 1997-2,
Class A-5 and A-6 Notes and Certificates have not been provided. The [Class
Interest Rate][Certificate Rate] for the Auction Period commencing on
__________________________ shall be the [Maximum Auction Rate] [Net Loan Rate]
and such Auction Period shall remain an Auction Period of ______ days.
BANKERS TRUST COMPANY,
as Auction Agent
By:____________________________
Name:
Title:
Date:
EXHIBIT J
TO AUCTION AGENT AGREEMENT
NOTICE OF RATINGS
CLASSNOTES TRUST 1997-I
ASSET BACKED NOTES, SERIES 1997-2
AUCTION RATE ASSET BACKED CERTIFICATES
NOTICE IS HEREBY GIVEN to the Auction Agent by the Issuer pursuant to Section
2.3(a) of the Auction Agent Agreement that:
1. as of the date of this notice the rating by [Moody's] on the
[Series 1997-2 Notes] [Certificates] is _______ [and such
rate is [*"Aa3" or higher/lower than "Aa3"]];** and
2. as of the date of this notice the rating on the [Series
1997-2 Notes][Certificates] by [Standard & Poor's] is
____________ [and such rate is [*"AA-" or higher] [lower
than "AA"]].**
The Auction Agent may rely on such ratings for all purposes of the First Terms
Supplement, and the Trust Agreement, including determination of the Maximum
Auction Rate thereunder, from the date hereof until further notice from the
undersigned.
CLASSNOTES TRUST 1997-I
By: THE YORK BANK AND TRUST
COMPANY, not in its
individual capacity but
solely as Eligible Lender Trustee
By: ____________________________
Name:
Title:
--------
* Choose one.
* The information in the outer brackets will be used as applicable whenever
the [Xxxxx'x] rating is not equal to "Aa3" and/or the [Standard & Poor's]
rating is not equal to "AA-."
