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Exhibit 4.2
TERMS SUPPLEMENT
TO THE
INDENTURE OF TRUST
Dated as of ________ 1, 1999,
by and among
STUDENT LOAN FUNDING 1999-A TRUST,
A Delaware common law trust,
FIRSTAR BANK, NATIONAL ASSOCIATION,
not in its individual capacity, but solely as eligible
lender trustee for the benefit of
Student Loan Funding 1999-A Trust,
and
FIRSTAR BANK, NATIONAL ASSOCIATION,
as Indenture Trustee,
Dated as of ________ 1, 1999
Securing
STUDENT LOAN SENIOR ASSET-BACKED NOTES,
SERIES 1999A-1
(LIBOR RATE),
STUDENT LOAN SENIOR ASSET-BACKED CALLABLE NOTES,
SERIES 1999A-2
(AUCTION RATE)
and
STUDENT LOAN SUBORDINATE ASSET-BACKED NOTES,
SERIES 1999B-1
(LIBOR RATE)
OF
STUDENT LOAN FUNDING 1999-A TRUST
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TABLE OF CONTENTS
Page
ARTICLE I
Definitions
ARTICLE II
Authorization, Terms and Provisions of Notes
SECTION 2.01 Authorization of Notes; Notes to Constitute Special Obligations........................... 15
SECTION 2.02 Terms of Notes............................................................................ 15
SECTION 2.03 Determination of Series Interest Rates on the Notes....................................... 18
SECTION 2.03.1 Determination of the Series Interest Rate on the LIBOR Rate Notes.............. 18
SECTION 2.03.2 Determination of the Series Interest Rate on the Auction Rate Notes............ 19
SECTION 2.03.2.1 Auction Procedures.................................................. 21
SECTION 2.03.2.2 Application of Interest Payments for the Auction Rate
Notes........................................................................ 30
SECTION 2.03.2.3 Calculation of Maximum Auction Rate, All Hold Rate, Net
Loan Rate, Applicable LIBOR Rate and Non-Payment Rate........................ 30
SECTION 2.03.2.4 Notification of Rates, Amounts and Payment Dates.................... 31
SECTION 2.03.2.5 Auction Agent....................................................... 32
SECTION 2.03.2.6. Broker-Dealers..................................................... 33
SECTION 2.03.2.7 Changes in Auction Period or Periods................................ 33
SECTION 2.03.2.8 Changes in the Interest Determination Date.......................... 34
SECTION 2.03.2.9 Auction Period Conversions.......................................... 35
SECTION 2.03.2.10 Mandatory Tender and Purchase of Series Auction Rate
Notes in connection with Auction Period Conversion........................... 37
SECTION 2.03.2.11 Remarketing Agent Notes............................................ 39
SECTION 2.03.3 Carryover Interest............................................................. 39
SECTION 2.03.4 Additional Provisions Regarding Series Interest Rate........................... 40
SECTION 2.04 Forms of Notes and Instructions for Payment............................................... 41
ARTICLE
Redemption of the Notes
SECTION 3.01 Redemption of Notes in General............................................................ 42
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SECTION 3.02 Auction of Financed Student Loans; Redemption of Outstanding Notes from
Auction Proceeds prior to the Legal Final Maturity............................................. 42
SECTION 3.03 Optional Redemption of Notes prior to the Legal Final Maturity............................ 43
ARTICLE IV
Disposition of Proceeds of the Notes; Collection Account; Acquisition Fund
SECTION 4.01 Disposition of Proceeds of the Notes...................................................... 45
SECTION 4.02 Disposition of Collection Account......................................................... 45
ARTICLE V
Miscellaneous
SECTION 5.01 Execution and Delivery of this Terms Supplement........................................... 50
SECTION 5.02. Effect of Terms Supplement on Indenture.................................................. 50
SECTION 5.03 Execution of Counterparts................................................................. 50
SECTION 5.04. Governing Law............................................................................ 50
SCHEDULE I TERMS OF SENIOR NOTES; TERMS OF SUBORDINATE NOTES
EXHIBIT A DISTRIBUTION STATEMENT
EXHIBIT B FORM OF SENIOR LIBOR FLOATING RATE NOTE
EXHIBIT C FORM OF SENIOR AUCTION RATE NOTE
EXHIBIT D FORM OF SUBORDINATE NOTE
EXHIBIT E INSTRUCTION FOR PAYMENT OF INTEREST
EXHIBIT F NOTICE OF PAYMENT DEFAULT
EXHIBIT G NOTICE OF CURE OF PAYMENT DEFAULT
EXHIBIT H NOTICE OF PROPOSED AUCTION PERIOD ADJUSTMENT
EXHIBIT I NOTICE ESTABLISHING AUCTION PERIOD ADJUSTMENT
EXHIBIT J NOTICE OF CHANGE IN RATE DETERMINATION DATE
EXHIBIT K NOTICE OF PROPOSED AUCTION PERIOD CONVERSION
EXHIBIT L NOTICE ESTABLISHING AUCTION PERIOD CONVERSION
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TERMS SUPPLEMENT
THIS TERMS SUPPLEMENT, dated as of ________ 1, 1999 (this "Terms
Supplement"), by and among STUDENT LOAN FUNDING 1999-A TRUST, a common law (as
opposed to statutory) trust created under the laws of the State of Delaware (the
"Issuer"), by FIRSTAR BANK, NATIONAL ASSOCIATION, a national banking association
duly organized and existing under the laws of the United States, having its
principal corporate trust office in Cincinnati, Ohio, not in its individual
capacity, but solely as Co-Owner Trustee of the Issuer (the "Co-Owner Trustee"),
FIRSTAR BANK, NATIONAL ASSOCIATION, not in its individual capacity, but solely
in its capacity as the initial eligible lender trustee holding title to the
Financed Student Loans on behalf of the Issuer (the "Initial Co-Owner Eligible
Lender Trustee"), and FIRSTAR BANK, NATIONAL ASSOCIATION, a national banking
association duly organized and existing under the laws of the United States,
having its principal corporate trust office in Cincinnati, Ohio (the "Indenture
Trustee"), as Indenture Trustee under that certain Indenture of Trust, dated as
of ________ 1, 1999 (as hereafter amended and supplemented by Supplemental
Indentures, the "Base Indenture"), among the Issuer, the Initial Co-Owner
Eligible Lender Trustee and the Indenture Trustee, amends and supplements the
Base Indenture (as amended and supplemented by this Terms Supplement, the
"Indenture"). Words and terms used as defined words and terms herein and not
otherwise defined herein shall have the meanings given them in the Base
Indenture. (References to the name "Student Loan Funding 1999-A Trust" or to the
term "Issuer" in this Terms Supplement, including the Schedules and Exhibits
attached hereto and made a part hereof, shall mean the Co-Owner Trustee, not in
its individual capacity, but solely as Co-Owner Trustee of the Issuer on behalf
of the Trust.)
WITNESSETH:
WHEREAS, Section 2.1 of the Base Indenture provides, among other
things, that the Issuer, the Initial Co-Owner Eligible Lender Trustee and the
Indenture Trustee shall enter into a Terms Supplement thereto for the purposes
of (i) authorizing the issuance of a Series of Notes thereunder and (ii)
specifying certain terms of such Notes; and
WHEREAS, the Issuer has determined to provide hereunder for the
issuance of (i) its Student Loan Senior Asset-Backed Notes, Series 1999A-1
(LIBOR Rate) (the "Series 1999A-1 Notes"), (ii) Student Loan Senior Asset-Backed
Callable Notes, Series 1999A-2 (Auction Rate) (the "Series 1999A-2 Notes" and,
together with the Series 1999A-1 Notes, the "Senior Notes"), and (iii) its
Student Loan Subordinate Asset-Backed Notes, Series 1999B-1 (LIBOR Rate) (the
"Subordinate Notes" and, collectively with the Senior Notes, the "Notes"); and
WHEREAS, the Issuer, the Initial Co-Owner Eligible Lender Trustee and
the Indenture Trustee desire to execute and deliver this Terms Supplement in
order to authorize the issuance of each Series of the Notes and to declare the
terms upon which each Series of the Notes will be issued; and
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NOW, THEREFORE, THIS TERMS SUPPLEMENT WITNESSETH:
That it is hereby mutually covenanted and agreed that the terms and
conditions upon which each Series of the Notes are executed, authenticated,
issued, delivered, secured and accepted by all Persons who shall from time to
time be or become the Holders thereof, and the trusts and conditions upon which
the Trust Estate is to be held and disbursed, are as set forth herein and in the
Base Indenture:
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ARTICLE I
Definitions
Unless the context shall clearly indicate some other meaning or may
otherwise require, the terms defined in this Article I shall, for all purposes
of the Base Indenture and of any indenture or other instrument amendatory or
supplemental thereto, have the meanings herein specified (terms used herein as
defined terms and not defined herein, shall have the meanings ascribed thereto
in the Base Indenture):
"All Hold Rate" shall mean eighty-five percent (85%) of the Applicable
LIBOR Rate.
"Applicable LIBOR Rate" shall mean (a) for Auction Periods of 35 days
or less, One-Month LIBOR, (b) for Auction Periods of more than 35 days but less
than 91 days, Three-Month LIBOR, (c) for Auction Periods of more than 90 days
but less than 181 days, Six-Month LIBOR, and (d) for Auction Periods of more
than 180 days, One-Year LIBOR. As used in this definition and otherwise herein,
the terms "Three-Month LIBOR," "Six-Month LIBOR" or "One-Year LIBOR," means the
rate of interest per annum equal to the rate per annum with respect to United
States dollar deposits in the London interbank market having a maturity of three
months, six months or one year, respectively.
"Auction" shall mean the implementation of the Auction Procedures on an
Interest Determination Date.
"Auction Agent" shall mean with respect to the Auction Rate Notes, the
Initial Auction Agent unless and until a Substitute Auction Agent Agreement
becomes effective, after which the Auction Agent shall mean the Substitute
Auction Agent.
"Auction Agent Agreement" shall mean with respect to the Auction Rate
Notes, the Initial Auction Agent Agreement unless and until a Substitute Auction
Agent Agreement is entered into, after which Auction Agent Agreement shall mean
such Substitute Auction Agent Agreement.
"Auction Agent Fee" shall have the meaning set forth in the applicable
Auction Agent Agreement.
"Auction Agent Fee Rate" shall have the meaning set forth in the
applicable Auction Agent Agreement.
"Auction Period" shall mean with respect to each Series of Auction Rate
Notes, a period generally consisting of twenty-eight (28) days beginning on a
__________ and ending on the fourth ___________ thereafter, as the same may be
changed pursuant to Section 2.03.2.7 hereof.
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"Auction Period Adjustment" shall mean with respect to a Series of
Auction Rate Notes, the change, from time to time, in the length of an Auction
Period and, specifically, (i) with respect to an Auction Period between seven
(7) and ninety-one (91) days, inclusive, from such an Auction Period to any
other Auction Period between seven (7) and ninety-one (91) days, inclusive, or
(ii) with respect to an Auction Period between ninety-two (92) days and the
Legal Final Maturity of a Series of Auction Rate Notes, inclusive, from such an
Auction Period to an Auction Period between ninety-two (92) days and the Legal
Final Maturity of a Series of Auction Rate Notes, inclusive, if such latter
Auction Period is no more than three (3) months shorter or no more than three
(3) months longer than the Auction Period for such series of Auction Rate Notes
established either at the initial issuance of such Series of Auction Rate Notes
or pursuant to an Auction Period Conversion, whichever has occurred most
recently.
"Auction Period Commencement Date" shall mean, with respect to the
Auction Rate Notes, the first Business Day following each Interest Determination
Date.
"Auction Period Conversion" shall mean with respect to a Series of
Auction Rate Notes, the change in the length of an Auction Period (i) from an
Auction Period between seven (7) and ninety-one (91) days, inclusive, to an
Auction Period between ninety-two (92) days and the Legal Final Maturity of such
Series of Auction Rate Notes, inclusive, (ii) from an Auction Period between
ninety-two (92) days and the Legal Final Maturity of such Series of Auction Rate
Notes, inclusive, to an Auction Period between seven (7) and ninety-one (91)
days, inclusive, or (iii) from an Auction Period between ninety-two (92) days
and the Legal Final Maturity of such Series of Auction Rate Notes, inclusive, to
an Auction Period between ninety-two (92) and the Legal Final Maturity of such
Series of Auction Rate Notes, inclusive, if such latter Auction Period is at
least three (3) months shorter or at least three (3) months longer than the
Auction Period for such Series of Auction Rate Notes established either upon
initial issuance of such Series of Auction Rate Notes or pursuant to an Auction
Period Conversion, whichever has occurred most recently.
"Auction Period Conversion Date" shall mean, with respect to a Series
of Auction Rate Notes, the date on which an Auction Period Conversion is
effective which shall be an Auction Period Distribution Date.
"Auction Period Distribution Date" shall mean, with respect to a Series
of Auction Rate Notes, the Business Day immediately following the expiration of
each related Auction Period, commencing on the Initial Distribution Date for
each Series of Auction Rate Notes; provided, however, that in connection with
any Auction Period Adjustment or Auction Period Conversion, the Auction Period
Distribution Date may be changed.
"Auction Procedures" shall mean the procedures set forth in Section
2.03.2 hereof.
"Auction Rate" shall mean with respect to the Series Interest Rate on a
Series of Auction Rate Notes, the interest rate that results from implementation
of the applicable Auction Procedures.
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"Auction Rate Noteholders" shall mean the Holders of Auction Rate
Notes.
"Auction Rate Notes" shall mean the Series 1999A-2 Notes.
"Authorized Denominations" shall mean (a) with respect to the LIBOR
Rate Notes, (i) as applicable solely in connection with the original issuance of
each such Series of Notes, $50,000 and integral multiples of $1,000 in excess
thereof and (ii) after distribution of principal in accordance with Section
5.5.2 of the Base Indenture, the Outstanding principal amount that results after
such distribution, and (b) with respect to the Auction Rate Notes, $50,000 and
integral multiples of $50,000 in excess thereof.
"Bid Auction Rate" shall have the meaning described in Section
2.03.2.1(c)(i) hereof.
"Bidder" shall have the meaning set forth in Section 2.03.2.1(a)(i)
hereof.
"Book-Entry Form" or "Book-Entry System" shall mean a form or system
under which (i) the beneficial right to principal and interest may be
transferred only through a book entry, (ii) physical Series 1999A-1 Notes,
Series 1999A-2 Notes, Series 1999B-1 Notes or notes in registered form are
issued only to a Depository or its nominee as registered owner, with such Notes
"immobilized" to the custody of the Depository, and (iii) the book entry is the
record that identifies the owners of beneficial interests in that principal and
interest and Xxxxxxxxx Interest, if any.
"Broker-Dealer" shall mean _________________________________ 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 Issuer pursuant to Section 2.03.2.6 hereof, and (c) has entered
into a Broker-Dealer Agreement that is in effect on the date of reference.
"Broker-Dealer Agreement" shall mean each agreement between the Auction
Agent and a Broker-Dealer, 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 from and after the effective date of this Indenture shall be
substantially in the form of the Broker-Dealer Agreement, dated as of ________
1, 1999, between Bankers Trust Company, as Auction Agent, and
______________________________, as Broker-Dealer.
"Broker-Dealer Fee" shall have the meaning set forth in the applicable
Auction Agent Agreement.
"Broker-Dealer Fee Rate" shall have the meaning set forth in the
applicable Auction Agent Agreement.
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"Calculation Agent" shall mean __________________________________, as
Calculation Agent under the Calculation Agent Agreement, or any successor to it
as such agent under the Calculation Agent Agreement.
"Calculation Agent Agreement" shall mean the Calculation Agent
Agreement, dated as of ________ 1, 1999, among the Issuer, the Calculation Agent
and the Indenture Trustee, in each case as originally executed and as from time
to time amended or supplemented in accordance with the terms thereof and the
Indenture.
"Cedel" shall mean a professional depository incorporated under the
laws of Luxembourg which holds securities for its participating organizations
and facilitates the clearance and settlement of securities transactions between
Cedel Participants through electronic book-entry.
"Cedel Participants" means recognized financial institutions around the
world that utilize the services of Cedel, including initial purchasers,
securities brokers and dealers, banks, trust companies, clearing corporations
and certain other organizations and may include the Initial Purchasers.
"Collection Period" shall mean (i) initially the period commencing on
Date of Issuance and running through and including ________________, and (ii)
thereafter a period of one calendar month commencing and including the date next
following the end of the preceding Collection Period.
"Date of Issuance" shall mean with respect to each Series of the Notes,
________________, the date of their initial issuance and delivery.
"Depository" shall mean any securities depository that is a clearing
agency under federal law operating and maintaining a Book-Entry System to record
beneficial ownership of the right to principal and interest, and to effect
transfers of Notes, in Book-Entry Form, and includes and means initially (i)
DTC, if the Notes are offered in the United States, and (ii) Cedel or Euroclear,
if the Notes are offered in Europe.
"Depository Participant" shall mean any broker-dealer, bank or other
financial institution for which a Depository holds Notes from time to time as
securities depository.
"Distribution Date" shall mean (i) with respect to each Series of LIBOR
Rate Notes, a Monthly Distribution Date, (ii) with respect to each Series of
Auction Rate Notes, an Auction Period Distribution Date, (iii) any date on which
an Issuer Exchange Payment is due and payable, and (iv) the Legal Final Maturity
of each Series of Notes, or if such day is not a Business Day, on the next
succeeding Business Day.
"DTC" shall mean The Depository Trust Company (a limited purpose trust
company), New York, New York.
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"Euroclear" shall mean Xxxxxx Guaranty Trust Company of New York,
Brussels, Belgium office.
"Existing Holder" shall mean, (i) with respect to and for the purpose
of dealing with the Auction Agent in connection with the Auction, a Person who
is a Broker-Dealer listed in the Existing Holder 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 Auction Rate Notes.
"Existing Holder Registry" shall mean the registry of Persons who are
holders of Auction Rate Notes maintained by the Auction Agent as provided in the
Auction Agent Agreement.
"Formula Rate" shall mean, (i) with respect to the Series 1999A-1
Notes, the lesser of One-Month LIBOR as of the related Interest Determination
Date for such Interest Accrual Period plus ____% per annum and 18%, (ii) with
respect to the Series 1999A-2 Notes, the lesser of the Auction Rate for such
Interest Accrual Period and 17%, and (iii) with respect to the Series 1999B-1
Notes, the lesser of One-Month LIBOR as of the related Interest Determination
Date for such Interest Accrual Period plus ____% and 18%.
"Indirect Participant" shall mean any Person which has indirect access
to a Clearing Agency, such as securities brokers and dealers, banks, and trust
companies that clear through or maintain a custodial relationship with a
Participant, either directly or indirectly.
"Initial Auction Agent" shall mean Bankers Trust Company, New York, New
York, its successors and assigns.
"Initial Auction Agent Agreement" shall mean the Auction Agent
Agreement, dated as of ________ 1, 1999, by and among the Issuer, the Indenture
Trustee and the Initial Auction Agent, including any amendment thereof or
supplement thereto, relating to the Auction Rate Notes.
"Initial Distribution Date" shall mean, (i) as to the Series 1999A-1
Notes, ___________, 1999, (ii) as to the Series 1999A-2 Notes, ____________,
1999, and (iii) as to the Series 1999B-1 Notes, _____________, 1999.
"Initial Interest Determination Date" shall mean (i) as to the Series
1999A-1 Notes, ____________, 1999, (ii) as to the Series 1999A-2 Notes,
_________, 1999, and (iii) as to the Series 1999B-1 Notes, ____________, 1999.
"Interest Accrual Period" shall mean with respect to each Series of
Notes, the period of time in which interest may accrue commencing initially on
the Date of Issuance for such Series of Notes and ending on the day before the
Initial Distribution Date for each Series and thereafter commencing on each
Distribution Date for such Series of Notes and ending on the day before the next
Distribution Date for such Series.
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"Interest Determination Date" shall mean (i) the Initial Interest
Determination Date and thereafter (ii) (a) with respect to the LIBOR Rate Notes,
the second London Banking Day immediately preceding the first day of each
Interest Accrual Period, and (b) with respect to the Auction Rate Notes, the
Business Day on which the Auction Rate is determined by an Auction and that
immediately preceded the first day of each Interest Accrual Period, other than
(1) an Interest Accrual Period which commences on an Auction Period Conversion
Date or an Auction Period Adjustment Date; (2) each Interest Accrual Period
commencing after the ownership of the Auction Rate Notes is no longer maintained
in Book-Entry Form; (3) each Interest Accrual Period commencing after the
occurrence and during the continuance of a Payment Default; provided, however,
that if such day is not a Business Day, then the next succeeding Business Day.
"Legal Final Maturity" shall mean with respect to (i) the Series
1999A-1 Notes, _______________, (ii) the Series 1999A-2 Notes, ____________; and
(iii) the Series 1999B-1 Notes,
"LIBOR" shall mean, the rate of interest per annum equal to the rate
per annum at which United States dollar deposits having a particular maturity
are offered to prime banks in the London interbank market which appears on the
Telerate Page 3750 as of approximately 11:00 a.m., Greenwich Mean time, on the
Interest Determination Date. If such rate does not appear on Telerate Page 3750,
the rate for that day will be determined on the basis on the Reuters Screen
LIBOR Page. If at least two such quotations appear, LIBOR shall be the
arithmetic mean (rounded to the nearest one-hundredth of one percent (.01%)) of
such offered rates. If fewer than two such quotes appear, LIBOR with respect to
an Interest Accrual Period will be determined at approximately 11:00 a.m.,
London time, on such applicable Interest Determination Date on the basis of the
rate at which deposits in United States dollars having such particular maturity
are offered to prime banks in the London interbank market by four major banks in
the London interbank market selected by the Calculation Agent 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 Calculation Agent will request the
principal London office of each of such banks to provide a quotation of its
rate. If at least two quotations are provided, LIBOR shall be the arithmetic
mean (rounded to the nearest one-hundredth of one percent (.01%)) of such
offered rates. If fewer than two quotations are provided, LIBOR with respect to
such Interest Accrual Period shall be the arithmetic mean (rounded to the
nearest one-hundredth of one percent (.01%)) of the rates quoted at
approximately 11:00 a.m., New York City time on such applicable Interest
Determination Date by three major banks in New York, New York selected by the
Calculation Agent for loans in United States dollars to leading European banks
having such particular maturity 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, LIBOR in
effect for the applicable Interest Accrual Period shall be LIBOR in effect for
the immediately preceding Interest Accrual Period.
"LIBOR Rate Notes" shall mean collectively, the Series 1999A-1 Notes
and the Series 1999B-1 Notes.
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"London Banking Day" shall mean any business day on which dealings in
deposits in United States dollars are transacted in the London interbank market.
"Maximum Auction Rate" shall mean (i) prior to an Auction Period
Conversion, (a) the Applicable LIBOR Rate plus 1.50% (if both of the ratings
assigned by the Rating Agencies to the Auction Rate Notes are "Aa3," "AA-" or
better) or (b) the Applicable LIBOR Rate plus 2.50% (if any one of the ratings
assigned by Rating Agencies to the Auction Rate Notes is less than "Aa3" or
"AA-" but at least "A") or (c) the Applicable LIBOR Rate plus 3.50% (if any one
of the ratings assigned by the Ratings Agencies to the Auction Rate Notes is
less than "A") and (ii) after an Auction Period Conversion, the rate set forth
in the Supplemental Indenture executed in connection with the Auction Period
Conversion. 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 Agent Agreement.
"Monthly Distribution Date" shall mean, with respect to a Series of
LIBOR Rate Notes, the last Business Day of each month, commencing on the Initial
Distribution Date for each such Series of Notes.
"Net Loan Rate" shall mean with respect to any Interest Accrual Period
for a Series of the Notes, the annualized percentage rate determined by
multiplying (a) the ratio of 360 to the actual number of days in such Interest
Accrual Period, and (b) the ratio of (i) Expected Interest Collections for the
applicable Collection Period less Program Operating Expenses with respect to
such Collection Period, to (ii) the Pool Balance as of the first day of such
Collection Period. In calculating the Net Loan Rate, the applicable Collection
Period for the LIBOR Rate Notes is the Collection Period immediately preceding
the Collection Period in which the Monthly Distribution Date occurs. The
applicable Collection Period for the applicable Auction Rate Notes is the second
preceding Collection Period prior to the applicable Auction Period Distribution
Date.
"Non-Payment Rate" on any date of determination, shall mean (a) prior
to an Auction Period Conversion, One-Month LIBOR plus 1.50% and (b) after an
Auction Period Conversion, the interest rate per annum set forth in the
definition thereof in the Supplemental Indenture executed in connection with the
Auction Period Conversion.
"Notice of Fee Change" shall mean a notice of a change in the Auction
Agent Fee Rate or the Broker-Dealer Fee Rate substantially in the form of
Exhibit D to the applicable Auction Agent Agreement.
"One-Month LIBOR" shall mean LIBOR with respect to U.S. denominated
deposits having a maturity of one (1) month.
"Parity Percentage" shall have the meaning given such term in the Base
Indenture.
"Parity Percentage Limitation" shall mean ___%.
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"Parity Percentage Payment" shall mean those principal amounts required
to be paid on the Notes pursuant to Section 4.2 hereof until the Parity
Percentage is ___%.
"Participant" shall mean a Person who is a participant in or member of
the Depository, as determined by the rules or bylaws of the Depository.
"Payment Default" shall mean (a) a default in the due and punctual
payment of any installment of interest on a Series of Auction Rate Notes or (b)
a default in the due and punctual payment of any interest on and principal of a
Series of Auction Rate Notes at their Final Legal Maturity.
"Potential Holder" shall mean any Person (including an Existing Holder
that is (i) a Broker-Dealer when dealing with the Auction Agent and (ii) a
potential beneficial owner when dealing with a Broker-Dealer), who may be
interested in acquiring Auction Rate Notes (or, in the case of an Existing
Holder thereof, an additional principal amount of Auction Rate Notes).
"Principal Factor" shall mean a seven-digit decimal number which, when
multiplied by the initial principal amount of each LIBOR Rate Note, produces its
Outstanding principal balance. The Principal Factor will be 1.0000000 for each
such Note as of the Date of Issuance; thereafter, the Principal Factor for each
such Note will decline to reflect reductions in the Outstanding principal
balance of such Note.
"Program Expense Requirement" shall have the meaning given such term in
the Base Indenture.
"Record Date" shall mean, (i) with respect to the LIBOR Rate Notes, the
second Business Day preceding a Monthly Distribution Date, and (ii) with respect
to the Auction Rate Notes, the Business Day immediately preceding an Auction
Period Distribution Date.
"Remarketing Agent" shall mean, with respect to the Auction Rate Notes,
the remarketing agent under the remarketing agreement related to the Auction
Rate Notes, or any successor to it as such agent.
"Remarketing Agreement" shall mean a remarketing agreement among the
Issuer, the Remarketing Agent and the Indenture Trustee, or any similar
agreement hereafter entered into by the Issuer with respect to the Auction Rate
Notes, in each case as originally executed and as from time to time amended or
supplemented in accordance with the terms thereof and with this Indenture.
"Senior Parity Percentage" shall have the meaning given such term in
the Base Indenture.
"Series 1999A Noteholders" shall mean, collectively, the Series 1999A-1
Noteholders and the Series 1999A-2 Noteholders.
"Series 1999A Noteholders' Principal Distribution Amount" shall mean,
with respect to any Distribution Date for a Series of Series 1999A Notes, the
Series 1999A Principal Distribution Amount for such Distribution Date plus the
Series 1999A Principal Shortfall as of
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the close of the preceding Distribution Date; provided that the Series 1999A
Noteholders' Principal Distribution Amount will not exceed the outstanding
principal balance of the Series 1999A Notes. In addition, (i) on the Legal Final
Maturity of the Series 1999A-1 Notes, the principal required to be distributed
to the Series 1999A-1 Noteholders will include the amount required to reduce the
outstanding principal balance of the Series 1999A-1 Notes to zero, and (ii) on
the Legal Final Maturity of the Series 1999A-2 Notes, the principal required to
be distributed to the Series 1999A-2 Noteholders will include the amount
required to reduce the outstanding principal balance of the Series 1999A-2 Notes
to zero.
"Series 1999A Notes" shall mean, collectively, the Series 1999A-1 Notes
and the Series 1999A-2 Notes.
"Series 1999A Principal Distribution Amount" shall be equal to (i) with
respect to the Series 1999A-1 Notes, an amount equal to the decline in the Pool
Balance between the end of the second Collection Period preceding a Monthly
Distribution Date and the end of the immediately preceding Collection Period,
and (ii) with respect to the Series 1999A-2 Notes on and after which the
principal balance of the Series 1999A-1 Notes has been paid in full, an amount
equal to the decline in the Pool Balance between the end of the third Collection
Period preceding an Auction Period Distribution Date and the end of the second
preceding Collection Period.
"Series 1999A Principal Shortfall" shall mean, as of the close of any
Distribution Date, the excess of (i) the Series 1999A Principal Distribution
Amount on such Distribution Date over (ii) the amount of principal actually
distributed to the Series 1999A Noteholders on such Distribution Date.
"Series 1999A-1 Interest Shortfall" shall mean, with respect to any
Monthly Distribution Date, the excess of (i) the Series 1999A-1 Noteholders'
Interest Distribution Amount on the preceding Monthly Distribution Date over
(ii) the amount of interest actually distributed to the Series 1999A-1
Noteholders on such preceding Monthly Distribution Date, plus interest on the
amount of such excess interest due to the Series 1999A-1 Noteholders, to the
extent permitted by law, at the related Series Interest Rate from such preceding
Monthly Distribution Date to the current Monthly Distribution Date.
"Series 1999A-1 Noteholders" shall mean the Holders of the Series
1999A-1 Notes.
"Series 1999A-1 Noteholders' Interest Distribution Amount" shall mean
with respect to any Monthly Distribution Date, the sum of (i) the amount of
interest accrued at the related Series Interest Rate for the related Interest
Accrual Period on the aggregate outstanding principal balance of the Series
1999A-1 Notes on the immediately preceding Monthly Distribution Date after
giving effect to all principal distributions to Holders of Series 1999A-1 Notes
on such preceding Monthly Distribution Date (or, in the case of the first
Monthly Distribution Date, on the Date of Issuance) and (ii) the Series 1999A-1
Interest Shortfall for such Distribution Date; provided that the Series 1999A-1
Noteholders' Interest Distribution Amount will not include any Carryover
Interest on the Series 1999A-1 Notes.
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"Series 1999A-1 Notes" shall mean the Student Loan Senior Asset-Backed
Notes, Series 1999A-1 (LIBOR Rate), of the Issuer issued under the Indenture.
"Series 1999A-2 Interest Shortfall" shall mean, with respect to any
Auction Period Distribution Date, the excess of (i) the Series 1999A-2
Noteholders' Interest Distribution Amount on the preceding Auction Period
Distribution Date over (ii) the amount of interest actually distributed to the
Series 1999A-2 Noteholders on such preceding Auction Period Distribution Date,
plus interest on the amount of such excess interest due to the Series 1999A-2
Noteholders, to the extent permitted by law, at the related Series Interest Rate
from such preceding Auction Period Distribution Date to the current Auction
Period Distribution Date.
"Series 1999A-2 Noteholders" shall mean the Holders of the Series
1999A-2 Notes.
"Series 1999A-2 Noteholders' Interest Distribution Amount" shall mean
with respect to any Auction Period Distribution Date, the sum of (i) the amount
of interest accrued at the related Series Interest Rate for the related Interest
Accrual Period on the aggregate outstanding principal balance of the Series
1999A-2 Notes on the immediately preceding Auction Period Distribution Date
after giving effect to all principal distributions to Holders of Series 1999A-2
Notes on such preceding Auction Period Distribution Date (or, in the case of the
first Auction Period Distribution Date, on the Date of Issuance) and (ii) the
Series 1999A-2 Interest Shortfall for such Auction Period Distribution Date;
provided that the Series 1999A-2 Noteholders' Interest Distribution Amount will
not include any Carryover Interest on the Series 1999A-2 Notes.
"Series 1999A-2 Notes" shall mean the Student Loan Senior Asset-Backed
Callable Notes, Series 1999A-2 (Auction Rate), of the Issuer issued under the
Indenture.
"Series 1999B-1 Interest Shortfall" shall mean, with respect to any
Monthly Distribution Date, the excess of (i) the Series 1999B-1 Noteholders'
Interest Distribution Amount on the preceding Monthly Distribution Date over
(ii) the amount of interest actually distributed to the Series 1999B-1
Noteholders on such preceding Monthly Distribution Date, plus interest on the
amount of such excess interest due to the Series 1999B-1 Noteholders, to the
extent permitted by law, at the related Series Interest Rate from such preceding
Monthly Distribution Date to the current Monthly Distribution Date.
"Series 1999B-1 Noteholders" shall mean the Holders of the Series
1999B-1 Notes.
"Series 1999B-1 Noteholders' Interest Distribution Amount" shall mean,
with respect to any Monthly Distribution Date, the sum of (i) the amount of
interest accrued at the related Series Interest Rate for the related Interest
Accrual Period on the aggregate outstanding principal balance of the Series
1999B-1 Notes on the immediately preceding Monthly Distribution Date after
giving effect to all principal distributions to Holders of Series 1999B-1 Notes
on such preceding Monthly Distribution Date (or, in the case of the first
Monthly Distribution Date, on the Date of Issuance) and (ii) the Series 1999B-1
Interest Shortfall for such
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Monthly Distribution Date; provided that the Series 1999B-1 Noteholders'
Interest Distribution Amount will not include any Carryover Interest on the
Series 1999B-1 Notes.
"Series 1999B-1 Noteholders' Principal Distribution Amount" shall mean,
with respect to any Monthly Distribution Date, the Series 1999B-1 Principal
Distribution Amount for such Monthly Distribution Date plus the Series 1999B-1
Principal Shortfall as of the close of the preceding Monthly Distribution Date;
provided that the Series 1999B-1 Noteholders' Principal Distribution Amount
shall not exceed the outstanding principal balance of the Series 1999B-1 Notes.
In addition, on the Legal Final Maturity of the Series 1999B-1 Notes, the
principal required to be distributed to the Series 1999B-1 Noteholders shall
include the amount required to reduce the outstanding principal balance on the
Series 1999B-1 Notes to zero.
"Series 1999B-1 Notes" shall mean the Student Loan Subordinate
Asset-Backed Notes, Series 1999B-1 (LIBOR Rate), of the Issuer issued under the
Indenture.
"Series 1999B-1 Principal Distribution Amount" shall mean on each
Monthly Distribution Date on and after which the principal balance of the Series
1999A Notes has been paid in full, an amount equal to the decline in the Pool
Balance between the end of the second Collection Period preceding a Monthly
Distribution Date and the end of the immediately preceding Collection Period
(reduced with respect to the first Monthly Distribution Date on which principal
is to be paid on the Series 1999B-1 Notes by the Series 1998A Noteholders'
Principal Distribution Amount on such Monthly Distribution Date).
"Series 1999B-1 Principal Shortfall" shall mean, as of the close of any
Monthly Distribution Date, the excess of (i) the Series 1999B-1 Principal
Distribution Amount on such Distribution Date over (ii) the amount of principal
actually distributed to the Series 1999B-1 Noteholders on such Monthly
Distribution Date.
"Submission Deadline" shall mean 12:30 p.m., eastern time, on any
Interest Determination Date or such other time on any Interest Determination
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" shall have the meaning set forth in Section
2.03.2.1(c)(i) hereof.
"Submitted Hold Order" shall have the meaning set forth in Section
2.03.2.1(c)(i).
"Submitted Order" shall have the meaning set forth in Section
2.03.2.1(c)(i).
"Submitted Sell Order" shall have the meaning set forth in Section
2.3.2.1(c)(i).
"Substitute Auction Agent" shall mean a Person having the
qualifications required by Section 2.03.2.5 of this Indenture with whom the
Indenture Trustee and the Issuer enter into a Substitute Auction Agent
Agreement.
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"Substitute Auction Agent Agreement" shall mean an auction agent
agreement containing terms substantially similar to the terms of the Initial
Auction Agent Agreement, whereby a Substitute Auction Agent agrees with the
Indenture Trustee and the Issuer to perform the duties of the Auction Agent
under this Indenture.
"Telerate Page 3750" shall mean the display page so designated on the
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).
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ARTICLE II
Authorization, Terms and Provisions of Notes
SECTION 2.01 Authorization of Notes; Notes to Constitute Special
Obligations There is hereby authorized the borrowing of funds, and to evidence
such borrowing there is authorized the issuance of Notes of the Issuer in the
following aggregate principal amounts and Series: (i) _______________ Dollars
($___________) designated "Student Loan Funding 1999-A Trust Student Loan Senior
Asset-Backed Notes, Series 1999A-1 (LIBOR Rate)" (herein referred to as the
"Series 1999A-1 Notes"); (ii) _____________________ Dollars ($___________)
designated "Student Loan Funding 1999-A Trust Student Loan Senior Asset-Backed
Callable Notes, Series 1999A-2 (Auction Rate)" (herein referred to as the
"Series 1999A-2 Notes" and together with the Series 1999A-1 Notes, the "Senior
Notes"); and (iii) _____________________ Dollars ($________________) designated
"Student Loan Funding 1999-A Trust Student Loan Subordinate Asset-Backed Notes,
Series 1999B-1 (LIBOR Rate)" (herein referred to as the "Subordinate Notes" and,
collectively with the Senior Notes, the "Notes").
SECTION 2.02 Terms of Notes
(a) Terms of Notes Generally. Payments of principal of and interest on
each Note shall be made by the Indenture Trustee from its principal corporate
trust office in Cincinnati, Ohio in lawful money of the United States, and
payment of interest on each Note shall, if the Holder thereof is the registered
owner of $1,000,000 or more in aggregate principal amount of Notes, be made by
the deposit or wiring of immediately available funds to the credit of an account
specified by such Holder in duly executed instructions, with signature
guaranteed in a manner satisfactory to the Indenture Trustee, in the form set
forth in Exhibit E hereto delivered to the Indenture Trustee no less than ten
(10) Business Days prior to the date such payment is to be made. If such
instructions are not delivered to the Indenture Trustee in accordance with the
immediately preceding sentence and except as otherwise provided for when Notes
are registered in the name of the Depository or its nominee, payment of interest
shall be made by check mailed to such Xxxxxx's address as it appears on the
books of registry maintained by the Indenture Trustee pursuant to Section 2.4 of
the Base Indenture. Each payment of principal and interest and Carryover
Interest, if any, on each Note of a Series shall be accompanied by the CUSIP
number, if any, of the Note of such Series to which such payment relates.
Notwithstanding the foregoing and except as otherwise provided for when
Notes are registered in the name of the Depository or its nominee, no payment of
principal shall be made on any Note unless and until such Note is tendered to
the Indenture Trustee for cancellation; and no payment of interest or Carryover
Interest shall be made on any Note except to the Person whose name appears on
the books of registry maintained by the Indenture Trustee as the registered
Holder thereof as of the close of business on the Record Date.
If and as long as a Book-Entry System is utilized, (i) the Notes shall
be issued in the form of one fully registered Note for each Legal Final Maturity
within each Series of Notes or otherwise as may be required or requested by the
Depository and agreed to by the Issuer,
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registered in the name of the Depository or its nominee, as registered owner,
and immobilized in the custody of the Depository; (ii) (a) the principal of the
Notes shall be payable in next day or federal funds delivered or transmitted to
the Depository or its nominee on the Legal Final Maturity or such other date as
principal is payable hereunder and (b) interest on the Notes shall be payable in
same day or federal funds delivered to the Depository or its nominee on the
applicable Distribution Date; (iii) the beneficial owners in Book-Entry Form
shall have no right to receive Notes in the form of physical securities or
certificates; (iv) ownership of beneficial interests in Book-Entry Form shall be
shown by a book entry on the system maintained and operated by the Depository
and its Participants, and transfers of the ownership of beneficial interests
shall be made only by book entry by the Depository and its Participants; and (v)
the Notes as such shall not be transferable or exchangeable, except for transfer
to another Depository or to another nominee of a Depository, without further
action by the Issuer.
As long as the Notes are held by a Depository in a Book-Entry System,
the Indenture Trustee shall send any notice of redemption only to the
Depository. In the event that the Indenture Trustee gives notice of redemption
to the Depository, such notice shall initiate the Depository's standard
redemption process.
If any Depository determines not to continue to act as a Depository for
the Notes for use in a Book-Entry System, the Authorized Officer may attempt to
have established a securities depository/book-entry relationship with another
qualified Depository. If (i) the Issuer advises the Indenture Trustee in writing
the a Depository is no longer willing or able to discharge properly its
responsibilities as Depository with respect to the Notes, and the Issuer is
unable to locate a qualified successor, (ii) the Issuer, at its option, advises
the Indenture Trustee in writing that it elects to terminate the Book-entry
System through a Depository, or (iii) after the occurrence of an Event of
Default, Noteholders representing not less than 50% of the Outstanding principal
balance of the Directing Notes advise the Indenture Trustee and the Depository
in writing that the continuation of a Book-entry System through a Depository is
no longer in the best interest of the Noteholders, the Indenture Trustee shall
permit withdrawal of the Notes from the Depository or its nominee, all at the
cost and expense (including any costs of printing), if the event is not the
result of Issuer action or inaction, of those Persons requesting such issuance.
Note certificates authenticated and delivered pursuant to this paragraph shall
be in Authorized Denominations.
With respect to the Notes registered in the name of Cede & Co., as
nominee of DTC, or in the name of any successor Depository or its nominee, the
Issuer and the Indenture Trustee shall have no responsibility or obligation to
any Depository Participant or to any Indirect Participant. Without limiting the
generality of the immediately preceding sentence, the Issuer and the Indenture
Trustee shall have no responsibility or obligation with respect to (i) the
accuracy of the records of DTC, Cede & Co., any other Depository, its nominee,
or any Depository Participant with respect to any ownership interest in the
Notes, (ii) the delivery to any Depository Participant or any Indirect
Participant or any other Person, other than a Holder of a Note, of any notice
with respect to the Notes, including any notice of redemption, or (iii) the
payment to any Depository Participant or any Indirect Participant or any other
Person, other than a Holder of a Note, of any amount with respect to principal
of or interest on the Notes.
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For as long as the Notes are in Book-Entry Form, the notice, tender and
delivery procedures of DTC, or any other Depository to which the Notes are
transferred, shall be applicable. Whenever during the term of the Notes the
beneficial ownership thereof is determined by a book-entry at DTC, the
requirements of the Indenture of holding, delivering, surrendering or
transferring Notes shall be deemed modified to require the appropriate person to
meet the requirements of DTC as to registering, holding, surrendering or
transferring the book-entry to produce the same effect.
(b) Terms of Senior Notes Generally. The Senior Notes shall be initially
issued in fully registered form in substantially the form set forth in Exhibits
B or C hereof, as appropriate. The Senior Notes may be issued only in Authorized
Denominations. The Senior Notes initially issued hereunder shall be dated their
Date of Issuance, and each Series of such Senior Notes shall mature on the
respective Legal Final Maturity for such Series. The Senior Notes shall be
subject to redemption prior to their respective Legal Final Maturity as provided
in Article III hereof. The Senior Notes of each Series shall be numbered in
consecutive numerical order as set forth in Schedule I attached hereto.
The Senior Notes shall be issued to a Depository for use in a
Book-Entry System in accordance with the provisions of the Indenture. The
Authorized Officer, on behalf of the Issuer and to the extent necessary or
required, shall enter into any agreements determined necessary in connection
with the registration, authentication, immobilization, and transfer of the
Senior Notes, including arrangements for the payment of principal and interest
by wire transfer, after determining that the execution thereof will not endanger
the funds or securities of the Issuer.
Each Senior Note of a Series shall be payable on its respective Legal
Final Maturity and shall bear interest for each Interest Accrual Period at the
Series Interest Rate determined in accordance with the procedures and subject to
the limitations set forth in Section 2.03 hereof. Interest at such Series
Interest Rate shall accrue during each Interest Accrual Period on the principal
balance of each Series of Senior Notes Outstanding until such Series of Senior
Notes 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 date thereof or the most recent
applicable Distribution Date to which interest has been paid or duly provided
for until paid, subject, however, to the provisions of Section 2.03 hereof. Each
Senior Note of a Series shall initially bear interest at the rate of interest
per annum set forth in Schedule I attached hereto. Interest on each Senior Note
shall be paid on each applicable Distribution Date to the extent of interest
accrued on the principal then being paid or redeemed to the Holders of such
Senior Notes as of the Record Date. Interest accrued as of any applicable
Distribution Date on the Senior Notes of a Series but not paid on such
Distribution Date shall be payable on the succeeding applicable Distribution
Date, together with interest thereon at the applicable Series Interest Rate.
Interest shall be paid pro rata to the Holders of each such Series of Senior
Notes Outstanding.
(c) Terms of Subordinate Notes Generally. The Subordinate Notes shall
be initially issued in fully registered form in substantially the form set forth
in Exhibit D hereof. The Subordinate Notes shall be issued only in Authorized
Denominations. The Subordinate Notes issued hereunder shall be dated their Date
of Issuance and shall mature on the Legal Final
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Maturity. The Subordinate Notes shall be subject to redemption prior to their
respective Legal Final Maturity as provided in Article III hereof. The
Subordinate Notes shall be numbered in consecutive numerical order as set forth
in Schedule I hereto.
The Subordinate Notes shall be issued to a Depository for use in a
Book-entry System in accordance with the provisions of the Indenture. The
Authorized Officer, on behalf of the Issuer and to the extent necessary or
required, shall enter into any agreements determined necessary in connection
with the registration, authentication, immobilization, and transfer of the
Subordinate Notes, including arrangements for the payment of principal and
interest by wire transfer, after determining that the execution thereof will not
endanger the funds or securities of the Issuer.
The Subordinate Notes shall be payable on their Legal Final Maturity
and shall bear interest for each Interest Accrual Period at the Series Interest
Rate determined in accordance with the procedures, subject to the limitations
set forth in Section 2.03 hereof. Interest shall accrue during each Interest
Accrual Period on the principal balance of the Subordinate Notes Outstanding
until such Subordinate Notes have been paid in full or payment has been duly
provided for, as the case may be, and shall accrue from the later of the date
thereof or the most recent applicable Distribution Date to which interest has
been paid or duly provided for until paid, subject, however, to the provisions
of Section 2.03 hereof. Each Subordinate Note shall bear interest at the rate of
interest per annum set forth in Schedule I attached hereto. Interest accrued as
of any applicable Distribution Date on the Subordinate Notes but not paid on
such Distribution Date shall be payable on the next succeeding applicable
Distribution Date, together with interest thereon at the applicable Series
Interest Rate. Interest will be paid pro rata to the Holders of the Subordinate
Notes Outstanding.
The Indenture Trustee shall make available to each Holder or owner of a
beneficial interest in a Series of Notes via telephone information concerning
the Series Interest Rate applicable to the Notes of each Series. The Indenture
Trustee shall make such information available to such Holders between the hours
of 9 a.m. and 5 p.m. Eastern time on any day on which the principal corporate
trust office of the Indenture Trustee is open for business.
SECTION 2.03 Determination of Series Interest Rates on the Notes.
SECTION 2.03.1 Determination of the Series Interest Rate on the LIBOR
Rate Notes. (a) The Calculation Agent shall determine the Series Interest Rate
with respect to a Series of LIBOR Rate Notes for each Interest Accrual Period
which Series Interest Rate shall equal the Formula Rate calculated as follows,
subject to the limitation of the Net Loan Rate as hereinafter described. The
Formula Rate for each Interest Accrual Period for the Series 1999A-1 Notes shall
equal One-Month LIBOR plus ___%, but in no event greater than 18% per annum. The
Formula Rate for each Interest Accrual Period for the Series 1999B-1 Notes shall
equal One-Month LIBOR plus ____%, but in no event greater than 18%.
Interest on each Series of LIBOR Rate Notes for each Interest Accrual
Period shall be calculated on the basis of the actual number of days elapsed in
such Interest Accrual
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Period on the basis of a year consisting of 360 days. The calculation of the
Formula Rates described above shall be based on the actual number of days in
such Interest Accrual Period.
If the Calculation Agent shall fail or refuse to determine the Formula
Rate on a Series of LIBOR Rate Notes on any Interest Determination Date, the
Formula Rate on such LIBOR Rate Notes shall be determined by a securities dealer
appointed by the Issuer and capable, in the reasonable judgment of the Issuer,
of making such a determination in accordance with the provisions of the
Indenture and written notice of such determination shall be given by such
securities dealer to the Indenture Trustee.
SECTION 2.03.2 Determination of the Series Interest Rate on the Auction
Rate Notes. Until an Auction Period Adjustment or Auction Period Conversion and
subject to the Net Loan Rate, the Auction Rate Notes shall bear interest at a
Series Interest Rate based on a 28-day Auction Period, as determined pursuant to
Section 2.03.2 hereof and the subsections thereunder.
For the Auction Rate Notes during each Interest Accrual Period,
interest at the applicable 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 360 days.
The Series Interest Rate to be borne by each Series of Auction Rate
Notes after the initial Interest Accrual Period shall be determined by the
Auction Agent, which Series Interest Rate shall be the Formula Rate, as
hereinafter described and subject to the limitation of the Net Loan Rate, as
hereinafter described. Each Auction Period shall commence on and include the
first day of such Interest Accrual Period and end on and include the immediately
succeeding Interest Determination Date. The Series Interest Rate on each Series
of Auction Rate Notes for each Auction Period shall be the lesser of the (i) Net
Loan Rate in effect for such Auction Period and (ii) the Formula Rate in effect
for such Auction Period; provided that if, on any Interest Determination Date,
an Auction is not held for any reason, then the Series Interest Rate on the
Auction Rate Notes for the next succeeding Auction Period shall be the Net Loan
Rate.
Notwithstanding the foregoing:
(A) if the ownership of Auction Rate Notes is no longer
maintained in Book-entry Form, the Auction Rate on such Auction Rate Notes for
any Auction Period commencing after the delivery of certificates representing
such series pursuant to Section 2.3 of the Base Indenture 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 Auction Period; or
(B) if a Payment Default shall have occurred, the
Auction Rate on the Auction Rate Notes for the Auction Period commencing on or
immediately after such Payment Default, and for each Auction Period thereafter,
to and including the Auction Period, if any, during which, or commencing less
than two Business Days after, such Payment Default is cured in accordance with
this Indenture, shall be the Non-Payment Rate on the first day of each such
Auction Period; or
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(C) the Auction Rate for an Auction Period that
commences on an Auction Period Conversion Date will be equal to the lesser of
(i) the interest rate necessary to enable the Auction Agent to sell all of such
Auction Rate Notes at par plus accrued interest to the Auction Period Conversion
Date or (ii) the Maximum Auction Rate as of the Auction Period Conversion Date,
subject to the Net Loan Rate.
In accordance with Section 2.03.2.1(c)(ii) hereof, the Auction Agent
shall promptly give written notice to the Indenture Trustee and the Issuer of
each Series Interest Rate (unless the Series Interest Rate is the Non-Payment
Rate in which case the Indenture Trustee will determine the Non-Payment Rate and
give written notice thereof to the Issuer) 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 the Auction Rate Notes. The Indenture Trustee shall notify
the Holders of Auction Rate Notes of the Series Interest Rate applicable to the
Auction Rate Notes for each Auction Period on the second Business Day of such
Auction Period.
In the event that there are fewer than three (3) Business Days in any
week during which the Auction Period for the Auction Rate Notes would otherwise
be scheduled to expire, the expiration date and the Auction Period Distribution
Date for such Auction Period then in effect, and the Interest Determination Date
and commencement date for the immediately following Auction Period for the
Auction Rate Notes, may be adjusted to fall on such dates as the Calculation
Agent, with the consent of the Issuer, may determine to be appropriate under
such circumstances. The Calculation Agent will promptly notify the Indenture
Trustee and the Auction Agent in writing of any such determination. The
Indenture Trustee, upon receipt of such notice, will immediately give written
notification of such determination to the Holders of the Auction Rate Notes.
Notwithstanding any other provision of the Auction Rate Notes or this
Indenture and except for interest payable at the Non-Payment Rate in connection
with the occurrence of a Payment Default, interest payable on the Auction Rate
Notes for an Auction Period shall never exceed for such Auction Period the
amount of interest payable at the Net Loan Rate in effect for such Auction
Period.
In the event that the Auction Agent no longer determines, or fails to
determine, when required, the Series Interest Rate with respect to each series
of Auction Rate Notes, or, if for any reason such manner of determination shall
be held to be invalid or unenforceable, the Series Interest Rate for the next
succeeding Interest Accrual Period, which period shall be an Auction Period, for
each Series of Auction Rate Notes shall be the Net Loan Rate as determined by
the Administrator for such next succeeding Auction Period, and if the
Administrator shall fail or refuse to determine said Net Loan Rate, the Net Loan
Rate shall be determined by a securities dealer appointed by the Issuer and
capable, in the reasonable judgment of the Issuer, of making such a
determination in accordance with the provisions hereof, and written notice of
such determination shall be given by such securities dealer to the Indenture
Trustee.
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SECTION 2.03.2.1 Auction Procedures.
By purchasing Auction Rate Notes, whether in an Auction or otherwise,
each purchaser of the Auction Rate 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
Auction Rate Notes maintained at all times in Book-Entry Form for the account of
its Depository Participant, which in turn will maintain records of such
beneficial ownership and (iii) to authorize such Depository 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 Auction Rate Notes is
maintained in Book-Entry Form by the Depository, an Existing Holder may sell,
transfer or otherwise dispose of Auction Rate Notes only pursuant to a Bid or
Sell Order placed in an Auction or otherwise sell, transfer or dispose of
Auction Rate Notes through a Broker-Dealer, provided that, in the case of all
transfers other than pursuant to Auctions, such Existing Holder, its
Broker-Dealer or its Depository Participant advises the Auction Agent of such
transfer. Prior to a Period Adjustment Date and except with respect to the
Interest Determination Date immediately preceding an Auction Period Conversion
Date, Auctions shall be conducted on each Interest Determination Date, if there
is an Auction Agent on such Interest Determination Date, in the following
manner:
(a) (i) Prior to the Submission Deadline on each Interest Determination
Date;
(A) each Existing Holder of Auction Rate Notes may
submit to a Broker-Dealer by telephone or otherwise any information as to:
(1) the principal amount of Outstanding Auction Rate
Notes, if any, held by such Existing Holder which such Existing Holder desires
to continue to hold without regard to the Series Interest Rate for the next
succeeding Auction Period;
(2) the principal amount of Outstanding Auction Rate
Notes, if any, which such Existing Holder 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 Holder; and/or
(3) the principal amount of Outstanding Auction Rate
Notes, if any, held by such Existing Holder which such Existing Holder offers to
sell without regard to the Series Interest Rate for the next succeeding Auction
Period;
and
(B) one or more Broker-Dealers may contact Potential
Holders to determine the principal amount of Auction Rate Notes which each
Potential Holder offers to
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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 Holder.
The statement of an Existing Holder or a Potential Holder
referred to in (A) or (B) of this paragraph (i) is hereinafter referred to as an
"Order," and each Existing Holder and each Potential Holder placing an Order is
hereinafter referred to as a "Bidder"; an Order described in clause (A)(1) is
hereinafter referred to as a "Hold Order"; an Order described in clauses (A)(2)
and (B) is hereinafter referred to as a "Bid"; and an Order described in clause
(A)(3) is hereinafter referred to as a "Sell Order."
(ii) (A) Subject to the provisions of Section 2.03.2.1(b)
hereof, a Bid by an Existing Holder shall constitute an irrevocable offer to
sell:
(1) the principal amount of Outstanding Auction Rate
Notes specified in such Bid if the Series Interest Rate determined as provided
in this Section 2.03.2.1 shall be less than the rate specified therein; or
(2) such principal amount or a lesser principal
amount of Outstanding Auction Rate Notes to be determined as set forth in
Section 2.03.2.1(d)(i)(D), if the Series Interest Rate determined as provided in
this Section 2.03.2.1 shall be equal to the rate specified therein; or
(3) such principal amount or a lesser principal
amount of Outstanding Auction Rate Notes to be determined as set forth in
Section 2.03.2.1(d)(ii)(C) if the rate specified therein shall be higher than
the Series Interest Rate and Sufficient Clearing Bids have not been made.
(B) Subject to the provisions of Section 2.03.2.1(b)
hereof, a Sell Order by an Existing Holder shall constitute an irrevocable offer
to sell:
(1) the principal amount of Outstanding Auction Rate
Notes specified in such Sell Order; or
(2) such principal amount or a lesser principal
amount of Outstanding Auction Rate Notes set forth in Section 2.03.2.1(d)(i)(C),
if Sufficient Clearing Bids have not been made.
(C) Subject to the provisions of Section 2.03.2.1(b)
hereof, a Bid by a Potential Holder shall constitute an irrevocable offer to
purchase:
(1) the principal amount of Outstanding Auction Rate
Notes specified in such Bid if the Series Interest Rate determined as provided
in this Section 2.03.2.1 shall be higher than the rate specified in such Bid; or
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(2) such principal amount or a lesser principal
amount of Outstanding Auction Rate Notes set forth in Section 2.03.2.1(d)(i)(E),
if the Series Interest Rate determined as provided in this Section 2.03.2.1
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 on each Interest Determination 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 of Auction Rate Notes
that are the subject of such Order;
(C) to the extent that such Bidder is an Existing
Holder:
(1) the principal amount of Auction Rate Notes, if
any, subject to any Hold Order placed by such Existing Holder;
(2) the principal amount of Auction Rate Notes, if
any, subject to any Bid placed by such Existing Holder and the rate specified in
such Bid; and
(3) the principal amount of Auction Rate Notes, if
any, subject to any Sell Order placed by such Existing Holder;
and
(D) to the extent such Bidder is a Potential Holder, the
rate specified in such Potential Holder'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 1%.
(iii) If an Order or Orders covering all Outstanding Auction
Rate Notes held by an Existing Holder 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 Holder covering the principal
amount of Outstanding Auction Rate Notes held by such Existing Holder and not
subject to an Order submitted to the Auction Agent.
(iv) Neither the Issuer, the Indenture Trustee nor the Auction
Agent shall be responsible for any failure of a Broker-Dealer to submit an Order
to the Auction Agent on behalf of any Existing Holder or Potential Holder.
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(v) If any Existing Holder submits through a Broker-Dealer to
the Auction Agent one or more Orders covering in the aggregate more than the
principal amount of Outstanding Auction Rate Notes held by such Existing Holder,
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 Outstanding Auction Rate Notes held by
such Existing Holder, and if the aggregate principal amount of Auction Rate
Notes subject to such Hold Orders exceeds the aggregate principal amount of
Auction Rate Notes held by such Existing Holder, the aggregate principal amount
of Auction Rate Notes subject to each such Hold Order shall be reduced pro rata
so that the aggregate principal amount of Auction Rate Notes subject to such
Hold Order equals the aggregate principal amount of Outstanding Auction Rate
Notes held by such Existing Holder.
(B) (1) any Bid shall be considered valid up to an amount
equal to the excess of the principal amount of Outstanding Auction Rate Notes
held by such Existing Holder over the aggregate principal amount of Auction Rate
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
Holder and the aggregate principal amount of outstanding Auction Rate 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 Holder, 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
Auction Rate Notes, if any, subject to Bids not valid under this clause (B)
shall be treated as the subject of a Bid by a Potential Holder 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 Outstanding Auction Rate
Notes held by such Existing Holder over the aggregate principal amount of
Auction Rate 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 Auction Rate Notes is submitted
on behalf of any Potential Holder, each Bid submitted shall be a separate Bid
with the rate and principal amount therein specified.
(vii) An Existing Holder that offers to purchase additional
Auction Rate Notes is, for purposes of such offer, treated as a Potential
Holder.
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(viii) Any Bid or Sell Order submitted by an Existing Holder
covering an aggregate principal amount of Auction Rate Notes not equal to an
Authorized Denomination shall be rejected and shall be deemed a Hold Order. Any
Bid submitted by a Potential Holder covering an aggregate principal amount of
Auction Rate Notes not equal to an Authorized Denomination shall be rejected.
(ix) Any Bid specifying a rate higher than the Maximum Auction
Rate shall (a) be treated as a Sell Order if submitted by an Existing Holder and
(b) not be accepted if submitted by a Potential Holder.
(x) Any Order submitted in an Auction by a Broker-Dealer to
the Auction Agent prior to the Submission Deadline on any Interest Determination
Date shall be irrevocable.
(c) (i) Not earlier than the Submission Deadline on each
Interest Determination 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 hereinafter 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:
(A) the excess of the total principal amount of
Outstanding Auction Rate Notes over the sum of the aggregate principal amount of
Outstanding Auction Rate Notes subject to Submitted Hold Orders (such excess
being hereinafter referred to as the "Available Auction Rate Notes"), and
(B) from the Submitted Orders whether:
(1) the aggregate principal amount of Outstanding Auction Rate
Notes subject to Submitted Bids by Potential Holders 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 Auction Rate
Notes subject to Submitted Bids by Existing Holders specifying one or more rates
higher than the Maximum Auction Rate; and
(3) the aggregate principal amount of Outstanding Auction Rate
Notes subject to submitted Sell Orders;
(in the event such excess or such equality exists, other than because
all of the Outstanding Auction Rate Notes are subject to Submitted Hold Orders,
such Submitted Bids
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described in subclause (1) above shall be referred to collectively as
"Sufficient Clearing Bids"); and
(C) if Sufficient Clearing Bids exist, the Bid Auction
Rate (the "Bid Auction Rate") shall be the lowest rate specified in such
Submitted Bids such that if:
(1) (aa) each Submitted Bid from Existing Holders
specifying such lowest rate and (bb) all other Submitted Bids from Existing
Holders specifying lower rates were rejected, thus entitling such Existing
Holders to continue to hold the principal amount of Auction Rate Notes subject
to such Submitted Bids; and
(2) (aa) each such Submitted Bid from Potential
Holders specifying such lowest rate and (bb) all other Submitted Bids from
Potential Holders specifying lower rates were accepted; the result would be that
such Existing Holders described in subclause (1) above would continue to hold an
aggregate principal amount of Outstanding Auction Rate Notes which, when added
to the aggregate principal amount of Outstanding Auction Rate Notes to be
purchased by such Potential Holders described in subclause (2) above, would
equal not less than the Available Auction Rate Notes.
(ii) Promptly after the Auction Agent has made the determinations
pursuant to Section 2.03.2.1(c)(i) hereof, the Auction Agent shall advise the
Indenture Trustee and the Broker-Dealers of the Net Loan Rate, the Maximum
Auction Rate and the All Hold Rate and the components thereof on the Interest
Determination Date and, based on such determinations, the Auction Rate for the
next succeeding Interest Accrual Period as follows:
(A) if Sufficient Clearing Bids exist, that the Auction
Rate for the next succeeding Interest Accrual Period shall be equal to the Bid
Auction Rate so determined;
(B) if Sufficient Clearing Bids do not exist (other than
because all of the Outstanding Auction Rate Notes are subject to Submitted Hold
Orders), that the Auction Rate for the next succeeding Interest Accrual Period
shall be equal to the Maximum Auction Rate; or
(C) if all Outstanding Auction Rate Notes are subject to
Submitted Hold Orders, that the Auction Rate for the next succeeding Interest
Accrual 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 Indenture Trustee of the Series
Interest Rate, which rate shall be the lesser of (a) the Formula Rate and (b)
the Net Loan Rate. In no event shall the Series Interest Rate exceed 17%.
(d) Existing Holders shall continue to hold the principal
amount of Auction Rate Notes 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
Clearing Bids have been received by the
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Auction Agent, the Bid Auction Rate will be the Auction 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 greater than the Auction Rate, the Series
Interest Rate for the Outstanding Auction Rate Notes will be the Auction Rate.
If the Net Loan Rate is less than the Auction Rate, the Series Interest Rate for
the Outstanding Auction Rate Notes will be the Net Loan Rate. If the Auction
Rate and the Net Loan Rate for the Auction Rate Notes are both greater than 17%,
the Series Interest Rate shall be equal to 17%. If the Auction Agent has not
received Sufficient Clearing Bids (other than because all of the Outstanding
Auction Rate Notes are subject to Submitted Hold Orders), the Series Interest
Rate will be the lesser of the Auction Rate (which shall be the Maximum Auction
Rate) and the Net Loan Rate, but in no event greater than 17%. 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 Clearing 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
2.03.2.1(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 Holders' Submitted Bids specifying any rate that is
higher than the Series Interest Rate shall be accepted, thus requiring each such
Existing Holder to sell the aggregate principal amount of Auction Rate Notes
subject to such Submitted Bids;
(B) Existing Holders' Submitted Bids specifying any rate that is
lower than the Series Interest Rate shall be rejected, thus entitling each such
Existing Holder to continue to hold the aggregate principal amount of Auction
Rate Notes subject to such Submitted Bids;
(C) Potential Holders' Submitted Bids specifying any rate that is
lower than the Series Interest Rate shall be accepted;
(D) Each Existing Holders' Submitted Bid specifying a rate that is
equal to the Series Interest Rate shall be rejected, thus entitling such
Existing Holder to continue to hold the aggregate principal amount of Auction
Rate Notes subject to such Submitted Bid, unless the aggregate principal amount
of Outstanding Auction Rate Notes subject to all such Submitted Bids shall be
greater than the principal amount of Auction Rate Notes (the "remaining
principal amount") equal to the excess of the Available Auction Rate Notes over
the aggregate principal amount of Auction Rate Notes subject to Submitted Bids
described in clauses (B) and (C) of this Section 2.03.2.1(d)(i), in which event
such Submitted Bid of such Existing Holder shall be rejected in part, and such
Existing Holder shall be entitled to continue to hold the principal amount of
Auction Rate Notes subject to such Submitted Bid, but only in an amount equal to
the aggregate principal amount of Auction Rate Notes obtained by multiplying the
remaining principal amount by a fraction, the numerator of which shall be the
principal amount
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of Outstanding Auction Rate Notes held by such Existing Holder subject to such
Submitted Bid and the denominator of which shall be the sum of the principal
amount of Outstanding Auction Rate Notes subject to such Submitted Bids made by
all such Existing Holders that specified a rate equal to the Series Interest
Rate; and
(E) Each Potential Holder'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 Auction Rate Notes obtained by multiplying the
excess of the aggregate principal amount of Available Auction Rate Notes over
the aggregate principal amount of Auction Rate Notes subject to Submitted Bids
described in clauses (B), (C) and (D) of this Section 2.03.2.1(d)(i) by a
fraction the numerator of which shall be the aggregate principal amount of
Outstanding Auction Rate Notes subject to such Submitted Bid and the denominator
of which shall be the sum of the principal amount of Outstanding Auction Rate
Notes subject to Submitted Bids made by all such Potential Holders that
specified a rate equal to the Series Interest Rate; and
(F) Each Potential Noteholder's Bid specifying a rate that is
higher than the Series Interest Rate will be rejected.
(ii) If Sufficient Clearing Bids have not been made (other than because
all of the Outstanding Auction Rate Notes 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 equal the Net Loan Rate), or if the Series Interest
Rate would be greater than 17%, subject to the provisions of Section
2.03.2.1(d)(iv), 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 Holders' Submitted Bids specifying any rate that is
equal to or lower than the Series Interest Rate shall be rejected, thus
entitling such Existing Holders to continue to hold the aggregate principal
amount of Auction Rate Notes subject to such Submitted Bids;
(B) Potential Holders' 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 Holder's Submitted Bid specifying any rate that
is higher than the Series Interest Rate and the Submitted Sell Order of each
Existing Holder shall be accepted, thus entitling each Existing Holder that
submitted any such Submitted Bid or Submitted Sell Order to sell the Auction
Rate 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 Auction Rate
Notes obtained by multiplying the aggregate principal amount of Auction Rate
Notes subject to Submitted Bids described in clause (B) of this Section
2.03.2.1(d)(ii) by a fraction the numerator of which shall be the aggregate
principal amount of Outstanding Auction Rate Notes held by such Existing Holder
subject to such Submitted Bid or Submitted Sell Order
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and the denominator of which shall be the aggregate principal amount of
Outstanding Auction Rate Notes subject to all such Submitted Bids and Submitted
Sell Orders.
(iii) If all Outstanding Auction Rate Notes 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 2.03.2.1(d), any Existing Holder would be entitled or
required to sell, or any Potential Holder would be entitled or required to
purchase, a principal amount of Auction Rate Notes 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 Auction
Rate Notes to be purchased or sold by any Existing Holder or Potential Holder so
that the principal amount of Auction Rate Notes purchased or sold by each
Existing Holder or Potential Holder shall be equal to an Authorized
Denomination.
(v) If, as a result of the procedures described in paragraph (ii) of
this Section 2.03.2.1(d), any Potential Holder would be entitled or required to
purchase less than an Authorized Denomination of Auction Rate Notes, the Auction
Agent shall, in such manner as in its sole discretion it shall determine,
allocate Auction Rate Notes for purchase among Potential Holders so that only
Auction Rate Notes in Authorized Denominations are purchased by any Potential
Holder, even if such allocation results in one or more of such Potential Holders
not purchasing any Auction Rate Notes.
(e) Based on the result of each Auction, the Auction Agent shall
determine the aggregate principal amount of Auction Rate Notes to be purchased
and the aggregate principal amount of Auction Rate Notes to be sold by Potential
Holders and Existing Holders 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 Auction Rate Notes to be sold differs from such
aggregate principal amount of Auction Rate 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, Auction Rate Notes.
(f) The Issuer and any affiliate may not submit an Order in any
Auction.
(g) Any calculation by the Auction Agent (or Administrator or the
Indenture Trustee, if applicable) of the Series Interest Rate, the Applicable
LIBOR Rate, 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.
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SECTION 2.03.2.2 Application of Interest Payments for the Auction Rate
Notes. (a) The Indenture Trustee shall determine not later than 12:00 Noon,
eastern time, on the Business Day next succeeding an Auction Period Distribution
Date, whether a Payment Default has occurred. If a Payment Default has occurred,
the Indenture Trustee shall, not later than 12:15 p.m., eastern time, on such
Business Day, send a notice thereof in substantially the form of Exhibit F
attached hereto to the Auction Agent by telecopy or similar means and, if such
Payment Default is cured, the Indenture Trustee shall immediately send a notice
in substantially the form of Exhibit G attached hereto to the Auction Agent by
telecopy or similar means.
(b) Not later than 12:00 Noon, eastern time, on each Auction Period
Distribution Date the Indenture Trustee shall pay to the Auction Agent, in
immediately available funds out of amounts in the Expense Account, an amount
equal to the Auction Agent Fee and the Broker-Dealer Fee as calculated in the
Auction Agent Agreement. The Indenture Trustee shall, from time to time at the
request of the Auction Agent and with the approval of an Authorized Officer of
the Issuer, reimburse the Auction Agent for its reasonable expenses as provided
in the Auction Agent Agreement, such expenses to be paid out of amounts in the
Expense Account.
SECTION 2.03.2.3 Calculation of Maximum Auction Rate, All Hold Rate,
Net Loan Rate, Applicable LIBOR Rate and Non-Payment Rate. The Auction Agent
shall calculate the Maximum Auction Rate, the All Hold Rate and the Applicable
LIBOR Rate on each Interest Determination Date and shall notify the Indenture
Trustee and the Broker-Dealers of the Maximum Auction Rate, the All Hold Rate
and the Applicable LIBOR Rate as provided in the Auction Agent Agreement. The
Administrator shall calculate the Net Loan Rate and no later than the Business
Day immediately preceding each Interest Determination Date shall report to the
Auction Agent in writing, the Net Loan Rate. Upon receipt of notice from the
Indenture Trustee of a failed Auction Period Conversion as described in Section
2.03.2.9 hereof, the Auction Agent shall calculate the Maximum Auction Rate and
the Administrator will report to the Auction Agent in writing the Net Loan Rate
as of such failed Auction Period Conversion and give notice thereof as provided
and to the parties specified in Section 2.3(b)(iv) of the Auction Agent
Agreement. If the ownership of a Series of Auction Rate Notes is no longer
maintained in Book-Entry form by the Depository, the Indenture Trustee shall
calculate the Maximum Auction Rate and Administrator shall report to the
Indenture Trustee in writing the Net Loan Rate on the Business Day immediately
preceding the commencement of each Interest Accrual Period after the delivery of
certificates representing such Series of Auction Rate Notes pursuant to this
Indenture. If a Payment Default shall have occurred, the Indenture Trustee shall
calculate the Non-Payment Rate on the Interest Determination Date for (i) each
Interest Accrual Period commencing on or after the occurrence and during the
continuance of such Payment Default and (ii) any Interest Accrual Period
commencing less than two Business Days after the cure of any Payment Default.
The Auction Agent shall determine the Applicable LIBOR Rate for each Interest
Accrual Period other than the Initial Period; provided, that if the ownership of
the Auction Rate is no longer maintained in Book-Entry form, or if a Payment
Default has occurred, then the Indenture Trustee shall determine the Applicable
LIBOR Rate for each such Interest Accrual Period. The determination by the
Indenture Trustee or the Auction Agent, as the
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case may be, of the Applicable LIBOR Rate shall (in the absence of manifest
error) be final and binding upon all parties. If determined by the Auction
Agent, the Auction Agent shall promptly advise the Indenture Trustee of the
Applicable LIBOR Rate.
SECTION 2.03.2.4 Notification of Rates, Amounts and Payment Dates.
(a) By 10:00 a.m., eastern time, on the Business Day following each
Record Date, the Indenture Trustee shall determine the aggregate amounts of
interest distributable on the next succeeding Auction Period Distribution Date
to the beneficial owners of Auction Rate Notes.
(b) Promptly after the Closing Date and after the beginning of each
subsequent Interest Accrual Period, and in any event at least four (4) days
prior to any Auction Period Distribution Date, as the case may be, the Indenture
Trustee shall:
(i) confirm with the Auction Agent, so long as no Payment Default
has occurred and is continuing and the ownership of the Auction Rate Notes is
maintained in Book-Entry form by the Depository, (1) the date of such next
Auction Period Distribution Date and (2) the amount payable to the Auction Agent
on the Interest Determination Date pursuant to Section 2.03.2.2(b) hereof;
(ii) pursuant to Section 2.03.3 hereof, advise the Holders of any
Carryover Interest accruing on any series of Series Auction Rate Notes; and
(iii) advise the Depository, so long as the ownership of the
Auction Rate Notes is maintained in Book-entry form by the Depository, upon
request, of the Series Interest Rate payable on the Auction Rate Notes and the
interest amount.
If any day scheduled to be an Auction Period Distribution Date shall be
changed after the Indenture Trustee shall have given the notice or confirmation
referred to in clause (i) of the preceding sentence, the Indenture Trustee
shall, not later than 9:15 a.m., eastern time, on the Business Day next
preceding the earlier of the new Auction Period Distribution Date or the old
Auction Period Distribution Date, by such means as the Indenture 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 Auction
Rate Notes is maintained in Book-Entry Form by the Depository.
SECTION 2.03.2.5 Auction Agent.
(a) Bankers Trust Company has been appointed as Auction Agent to serve
as agent for the Issuer in connection with Auctions with respect to the Auction
Rate Notes. The Indenture Trustee has entered into the Initial Auction Agent
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
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of Manhattan, New York, or such other location as is approved by the Indenture
Trustee and the Calculation 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 Agent Agreement. The Auction Agent may at any
time resign and be discharged of the duties and obligations created by this
Indenture by giving at least 90 days' notice to the Indenture Trustee, the
Issuer and the Calculation Agent. The Auction Agent may be removed at any time
by the Indenture Trustee upon the written direction of an Authorized Officer of
the Issuer or the Holders of 66-2/3% of the aggregate principal amount of the
Auction Rate Notes then Outstanding, and if by the Holders, by an instrument
signed by such Holders or their attorneys and filed with the Auction Agent, the
Issuer, the Indenture Trustee and the Calculation Agent upon at least 90 days'
notice. Neither resignation nor removal of the Auction Agent pursuant to the
preceding two sentences shall be effective until and unless a Substitute Auction
Agent has been appointed and has accepted such appointment. If required by the
Issuer or by the Calculation Agent, with the Issuer's consent, a Substitute
Auction Agent Agreement shall be entered into with a Substitute Auction Agent.
Notwithstanding the foregoing, the Auction Agent may terminate the Auction Agent
Agreement if, within fifteen (15) days after notifying the Indenture Trustee,
the Issuer and the Calculation Agent in writing that it has not received payment
of any Auction Agent Fee due it in accordance with the terms of the Auction
Agent 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 Indenture Trustee at the direction of
an Authorized Officer of the Issuer (after receipt of a certificate from the
Calculation 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 shall act as agent for the Issuer in connection
with Auctions. In the absence of bad faith, negligent failure to act or
negligence on its part, the Auction Agent shall not be liable for any action
taken, suffered or omitted or any error of judgment made by it in the
performance of its duties under the Auction Agent Agreement and shall not be
liable for any error of judgment made in good faith unless the Auction Agent
shall have been negligent in ascertaining (or failing to ascertain) the
pertinent facts.
(d) In the event of a change in the Auction Agent Fee Rate pursuant to
Section 6.4(b) of the Auction Agent Agreement, the Auction Agent shall give a
Notice of Fee Rate Change to the Indenture Trustee in accordance with the
Auction Agent Agreement.
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SECTION 2.03.2.6. Broker-Dealers.
(a) The Auction Agent has entered into a Broker-Dealer Agreement with
_______________________________, as the initial Broker-Dealer. 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 Indenture Trustee
and the Auction Agent; provided, however, that while ________________________
________ is serving as a Broker-Dealer, _____________________________ shall have
the right to consent to the approval of any additional Broker-Dealers, which
consent will not be unreasonably withheld.
(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 2.03.2.7 Changes in Auction Period or Periods.
(a) While any of the Auction Rate Notes are Outstanding, the Issuer
may, from time to time, convert on an Auction Period Distribution Date the
length of one or more Auction Periods pursuant to 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 interest rate borne by
the Auction Rate Notes; provided, however that the Issuer shall only initiate a
change in the length in the Auction Period to an Auction Period of other than
seven (7) or twenty-eight (28) days upon written evidence based on a Cash Flow
Statement from each of the Rating Agencies then rating any Outstanding Auction
Rate Notes that such a change will not adversely affect any rating of such
Rating Agencies on any Outstanding Auction Rate Notes; provided, further,
however, that each Rating Agency may waive the requirement for delivery of a
Cash Flow Statement. The Issuer shall not initiate an Auction Period Adjustment
unless it shall have received the written consent of the Calculation Agent,
which consent shall not be unreasonably withheld, not less than fifteen (15)
days nor more than twenty (20) days prior to the Auction Period Adjustment. The
Issuer shall initiate the Auction Period Adjustment by giving written notice to
the Indenture Trustee, the Auction Agent, the Calculation Agent, the Depository
and each Rating Agency then rating the Auction Rate Notes subject to such
Auction Period Adjustment in substantially the form of, or containing
substantially the information contained in, Exhibit H to this Indenture at least
ten (10) days prior to the Interest Determination Date for such Auction Period.
(b) The length of any such adjusted Auction Period pursuant to an
Auction Period Adjustment shall be subject to the limitations thereon set forth
in the definition of an Auction Period Adjustment in this Indenture.
(c) An Auction Period Adjustment shall not be allowed unless Sufficient
Clearing Bids existed or all of the Outstanding Auction Rate Notes were subject
to Submitted
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Hold Orders at both the Auction, if any, before the date on which the notice of
the proposed change was given as provided in this Section 2.03.2.7 and the
Auction immediately preceding the proposed change.
(d) An Auction Period Adjustment shall take effect on an Auction Period
Distribution Date only if (A) the Indenture Trustee and the Auction Agent
receive, by 11:00 a.m., eastern time, on the Business Day before the Interest
Determination Date for the first such Auction Period, a certificate from the
Issuer in substantially the form attached as, or containing substantially the
same information contained in, Exhibit I to this Indenture, authorizing the
Auction Period Adjustment specified in such certificate along with a copy of the
certificate of the Calculation Agent described above in subparagraph (a) and (B)
Sufficient Clearing Bids exist or all of the Outstanding Auction Rate Notes are
subject to Submitted Hold Orders on the Interest Determination Date for such
first Auction Period. If the condition referred to in (A) above is not met, the
Auction Rate for the Auction Period commencing on the Effective Date (as defined
in Exhibit I) 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 in (B) above is not met, the Series Interest Rate for the next Auction
Period shall be the lesser of the Auction Rate (which shall be the Maximum
Auction Rate) and the Net Loan Rate, but in no event greater than 17%, and the
Auction Period shall be the Auction Period determined without reference to the
proposed change.
(e) In connection with any Auction Period Adjustment, the Auction Agent
will provide such further notice as is specified in Section 2.5 of the Auction
Agent Agreement.
(f) While any of the Auction Rate Notes are Outstanding, the Issuer
may, from time to time, change the length of one or more Auction Periods
pursuant to an Auction Period Conversion. In such case, the Issuer, the
Indenture Trustee and the Auction Agent shall comply with the provisions of
Section 2.03.2.9 of this Indenture for effecting such an Auction Period
Conversion. If the conditions set forth in Section 2.03.2.9 are not met, the
Series Interest Rate for the Auction Period with respect to which the proposed
Auction Rate Conversion was to have been effective shall be the lesser of the
Auction Rate (which shall be the Maximum Auction Rate) and the Net Loan Rate,
but in no event greater than 17%, and the Auction Period shall be the Auction
Period determined without reference to the proposed change.
SECTION 2.03.2.8 Changes in the Interest Determination Date. The
Calculation Agent may specify an earlier Interest Determination Date than the
Interest Determination Date that would otherwise be determined in accordance
with the definition of "Interest Determination Date" in Article I of this 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 Interest Determination Date and the Series
Interest Rate borne on the Auction Rate Notes. The Authorized Officer of the
Issuer shall not consent to such change in the Interest Determination Date
unless he or she shall have received a written request for consent from the
Calculation Agent not less than fifteen (15) days nor more than twenty (20) days
prior to the effective date of such change. The Calculation Agent shall provide
notice of its
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determination to specify an earlier Interest Determination Date for one or more
Auction Periods by means of a written notice delivered at least ten (10) days
prior to the proposed changed Interest Determination Date to the Indenture
Trustee, the Auction Agent, the Issuer and the Depository. Such notice shall be
substantially in the form of, or contain substantially the information contained
in, Exhibit J to this Indenture.
In connection with any change described in this Section 2.03.2.8, the
Auction Agent will provide such further notice as is specified in Section 2.5 of
the Auction Agent Agreement.
SECTION 2.03.2.9 Auction Period Conversions. At the option of the
Issuer, the length of an Auction Period for a Series of Auction Rate Notes is
subject to an Auction Period Conversion on an Auction Period Conversion Date.
The length of the new Auction Period, the new Interest Determination Dates, if
any, and the Auction Period Distribution Dates with respect to the new Auction
Period shall be set forth in a Supplemental Indenture executed in connection
with such Auction Period Conversion. No such Auction Period Conversion shall be
effective unless prior to the Auction Period Conversion Date the Issuer shall
have furnished to the Indenture Trustee written evidence from each of the Rating
Agencies then rating any Outstanding Auction Rate Notes that execution of the
Supplemental Indenture and the related Auction Period Conversion will not
adversely affect the ratings on any series of Outstanding Auction Rate Notes.
With respect to an Auction Period Conversion, the Issuer shall give
written notice to the Indenture Trustee, the Auction Agent, the Calculation
Agent and the Remarketing Agent of any such proposed Auction Period Conversion
not less than twenty-eight (28) days prior to the Auction Period Conversion Date
in substantially the form of, or containing substantially the information
contained in, Exhibit K to this Indenture.
Upon receipt of such written notice from the Issuer, the Indenture
Trustee shall give written notice to the Holders of such Series of Auction Rate
Notes in the manner set forth in Section 3.01 of this Terms Supplement not less
than twenty-five (25) days prior to the Auction Period Conversion Date. Such
notice shall state (i) that (a) the length of the Auction Period will be
converted (1) from an Auction Period between seven (7) and ninety-one (91) days,
inclusive, to an Auction Period between ninety-two (92) days and the Final Legal
Maturity of such Series of Auction Rate Notes, inclusive, (2) from an Auction
Period between ninety-two (92) days and the Final Legal Maturity of such Series
of Auction Rate Notes, inclusive, to an Auction Period between seven (7) and
ninety-one (91) days, inclusive, or (3) from an Auction Period between
ninety-two (92) days and the Final Legal Maturity of such Series of Auction Rate
Notes, inclusive, to an Auction Period between ninety-two (92) days and the
Final Legal Maturity of such Series of Auction Rate Notes, inclusive, if such
latter Auction Period is at least three (3) months shorter or at least three (3)
months longer than the Auction Period established for such series at its initial
issuance or pursuant to an Auction Period Conversion, as applicable; (ii) the
Auction Period Conversion Date, (iii) that all Holders of such Series of Auction
Rate Notes are required to tender their Auction Rate Notes to the Indenture
Trustee or its agent no later than the Auction Period Conversion Date for
purchase at a price equal to 100% of the principal amount
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thereof plus accrued interest and any unpaid Carryover Interest (and interest
accrued thereon) to the Auction Period Conversion Date; provided, however, that
all such Auction Rate Notes that are not tendered to the Indenture Trustee by
such date shall be deemed tendered to the Indenture Trustee as of the Auction
Period Conversion Date, subject, however, to remarketing or purchase by the
Remarketing Agent for settlement on the Auction Period Conversion Date and
receipt by the Indenture Trustee of the purchase price equal to 100% of the
principal amount of Auction Rate Notes from the purchasers thereof or the
Remarketing Agent; (iv) that in the event that on the Auction Period Conversion
Date, the Remarketing Agent has been unable to remarket all Auction Rate Notes
for settlement on the Auction Period Conversion Date and has elected not to
purchase for its own account such unremarketed Auction Rate Notes, or on the
Auction Period Conversion Date the Indenture Trustee has not received the
purchase price equal to 100% of the principal amount of the Auction Rate Notes
from the purchasers thereof or the Remarketing Agent, the proposed Auction
Period Conversion of the Auction Rate Notes shall be canceled and such Auction
Rate Notes shall remain in the Auction Period applicable to such Auction Rate
Notes prior to the proposed Auction Period Conversion; (v) that the proposed
Auction Period Conversion is conditioned upon there being sufficient moneys
available in the Note Payment Account, after making provision for the payment of
accrued interest on such Auction Rate Notes and interest on other Auction Rate
Notes due and payable on such Auction Period Conversion Date to pay on the
Auction Period Conversion Date all Carryover Interest (and accrued interest
thereon), if any, on such Auction Rate Notes through the Auction Period
Conversion Date; and (vi) that a Holder has no right to elect to retain any such
Auction Rate that have been remarketed, or will be purchased, by the Remarketing
Agent, on the Auction Period Conversion. The Indenture Trustee shall mail a copy
of such notice to each of the Rating Agencies.
Notwithstanding anything to the contrary in this Section 2.03.2.9 or
elsewhere in this Indenture, if all of the Auction Rate Notes subject to Auction
Period Conversion are not remarketed or purchased by the Remarketing Agent for
settlement on the Auction Period Conversion Date, or if the Indenture Trustee
does not, by 11:00 a.m., eastern time, on the Auction Period Conversion Date
receive from the purchaser or the Remarketing Agent the purchase price equal to
100% of the principal amount thereof or if there are not sufficient moneys
available in the Note Payment Account, after making provision for the payment of
accrued interest on such Auction Rate Notes due and payable on Auction Period
Conversion Date to pay on the Auction Period Conversion Date all Carryover
Interest (and accrued interest thereon), if any, on such Auction Rate Notes
through the Auction Period Conversion Date, none of such Auction Rate Notes
shall be subject to such Auction Period Conversion, but all such Auction Rate
Notes shall bear interest at the lesser of the Net Loan Rate or the Auction Rate
(which shall be the Maximum Auction Rate), but in no event greater than 17%, for
the Interest Accrual Period commencing on such date and shall continue to be
held by and registered to the Holders that held such Auction Rate Notes
immediately prior to the failed Auction Period Conversion. Upon the occurrence
of a failed Auction Period Conversion, the Indenture Trustee shall give written
notice to the Issuer, the Auction Agent, the Calculation Agent, the Remarketing
Agent and each Rating Agency then rating the Auction Rate Notes, as appropriate,
confirming such failure.
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SECTION 2.03.2.10 Mandatory Tender and Purchase of Series Auction Rate
Notes in connection with Auction Period Conversion.
In the event that an Auction Period Conversion with respect to Auction
Rate Notes is to take place, such Auction Rate Notes shall be tendered to the
Authenticating Agent no later than the related Auction Period Conversion Date
for purchase at a purchase price equal to 100% of the principal amount thereof
plus accrued interest and any unpaid Carryover Interest (and any interest
accrued thereon) to the Auction Period Conversion Date; provided, however, that
any Auction Rate Note not tendered to the Authenticating Agent by such date
shall be deemed tendered to the Authenticating Agent. The Indenture Trustee
shall give notice by mail to the Holders of such Auction Rate Notes not less
than twenty-five (25) days prior to the Auction Period Conversion Date, of the
mandatory tender of such Series of Auction Rate Notes, which notice shall be
contained in the notice given in accordance with the provisions of Section
2.03.2.9 hereof.
Pursuant to a Remarketing Agreement, the Remarketing Agent shall be
obligated (i) to use its best efforts to remarket the Auction Rate Notes subject
to an Auction Period Conversion at a purchase price of not less than 100% of the
principal amount thereof, (ii) not later than 3:00 p.m., eastern time, on the
Business Day before the Auction Period Conversion Date, to give notice to the
Indenture Trustee stating whether all of the Auction Rate Notes have been
remarketed or will be purchased by the Remarketing Agent on the Auction Period
Conversion Date, and (iii) to cause the purchase price of each Auction Rate Note
so remarketed or to be purchased by the Remarketing Agent to be deposited in the
fund to be established under a Remarketing Agreement and maintained by the
Indenture Trustee pursuant to a Remarketing Agreement (the "Note Purchase Fund")
in immediately available funds. Pursuant to a Remarketing Agreement, all amounts
deposited in the Note Purchase Fund as aforesaid shall be held by the Indenture
Trustee uninvested and in cash and in trust for the sole and exclusive benefit
of the Holders of the Auction Rate Notes for the purchase of which such amounts
were deposited in the Note Purchase Fund and shall be applied by the Indenture
Trustee to such purchase by payment to such Holders without further
authorization or direction. Accrued interest and any unpaid Carryover Interest
(and any interest accrued thereon) on the Auction Rate Notes shall be paid by
the Indenture Trustee to such Holders from the Note Payment Account.
If by 11:00 a.m., eastern time, on the Auction Period Conversion Date,
there is on deposit in the Note Purchase Fund and the Note Payment Account an
aggregate amount sufficient to pay the purchase price of all Auction Rate Notes
subject to Auction Period Conversion equal to 100% of the principal amount
thereof plus accrued interest and any unpaid Carryover Interest (and any
interest accrued thereon) due and payable on the Auction Period Conversion Date,
all Auction Rate Notes which have not been delivered to the Indenture Trustee
shall be deemed to have been tendered in accordance with the provisions hereof.
In connection with an Auction Period Conversion, if necessary, replacement note
certificates, if any, amending and restating the tendered or deemed tendered
note certificates with respect to changes to the terms of such tendered or
deemed tendered note certificates, shall be authenticated by the Indenture
Trustee and delivered to the purchasers thereof; provided, however, that in the
case of Auction Rate Notes held in a Book-Entry System, any such replacement
Auction Rate Notes
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shall be authenticated by the Indenture Trustee and delivered to the Depository
or its agent. The Holder of any undelivered Auction Rate Notes shall not be
entitled to any payment (including any interest to accrue on and subsequent to
the Auction Period Conversion Date) other than the purchase price for such
undelivered Auction Rate Notes, and undelivered Auction Rate Notes shall no
longer be entitled to the benefit of this Indenture, except for the purpose of
payment of the purchase price therefor.
As of such Auction Period Conversion Date, the Auction Rate Notes
subject to Auction Period Conversion shall be registered to the purchasers
thereof, regardless of tender of the predecessor Auction Rate Notes by the
Holders thereof and shall bear interest at the new Auction Rate for the new
Auction Period. The Issuer shall give written notice to the Indenture Trustee,
the Auction Agent, the Calculation Agent and the Depository of any such
successful Auction Period Conversion no later than 5:00 p.m., eastern time, on
the Auction Period Conversion Date in substantially the form of, or containing
substantially the information contained in, Exhibit L to this Indenture.
The Holders of Auction Rate Notes which are subject to mandatory tender
on the Auction Period Conversion Date do not have the right to elect to retain
such Auction Rate Notes. Subject only to receipt by the Indenture Trustee from
the purchaser of the purchase price equal to 100% of the principal amount of all
Auction Rate Notes on the Auction Period Conversion Date and the payment of
accrued interest and any unpaid Carryover Interest (and accrued interest
thereon) as described above, such Auction Rate Notes will be deemed to be
tendered to the Indenture Trustee on such Auction Period Conversion Date and
registered in the names of the purchasers thereof.
If by 11:00 a.m., eastern time, on the Auction Period Conversion Date
there is not on deposit in the Note Purchase Fund and the Note Payment Account
(after taking into account other amounts to be paid from the Note Payment
Account as hereinbefore described) an aggregate amount sufficient to pay the
purchase price of all Auction Rate Notes subject to Auction Period Conversion
all Auction Rate Notes that have been tendered to the Indenture Trustee shall be
returned by the Indenture Trustee to the tendering Holders thereof, and the
Indenture Trustee shall give written notice on the date that the proposed
Auction Period Conversion was to have occurred to each Holder of Auction Rate
Notes, whether such Holder has actually tendered his Auction Rate Notes or not,
that (i) the Auction Period Conversion of such Auction Rate Notes has been
canceled because (A) not all Auction Rate Notes were remarketed or purchased by
the Remarketing Agent or (B) there were not moneys available to pay accrued
interest on such Auction Rate Notes due and payable on the Auction Period
Conversion Date, and any unpaid Carryover Interest (and accrued interest
thereon), if any, on such Auction Rate Notes and (ii) such Auction Rate Notes
will bear interest at the lesser of the Net Loan Rate or the Auction Rate (which
shall be the Maximum Auction Rate) as of the failed Auction Period Conversion
Date for the Interest Accrual Period commencing on such date, but in no event
greater than 17%, written notice of which Series Interest Rate will be given by
the Indenture Trustee to each such Holder on the second Business Day of the new
Auction Period.
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SECTION 2.03.2.11 Remarketing Agent Notes. Notwithstanding the fact
that the Remarketing Agent is under no obligation to purchase any Auction Rate
Notes in connection with an Auction Period Conversion, in the event that the
Remarketing Agent should elect, in its sole discretion, to purchase Auction Rate
Notes, then the Auction Rate Notes so purchased by the Remarketing Agent will
constitute "Remarketing Agent Notes" until the date, if any, on which such
Auction Rate Notes are sold by the Remarketing Agent. For so long as such
Auction Rate Notes constitute Remarketing Agent Notes, the Remarketing Agent
will be entitled to payment of the Remarketing Agent Recovery Amount, as
hereinafter defined, with respect to the principal amount of Remarketing Agent
Notes. For purposes of this Section 2.03.2.11, "Remarketing Agent Recovery
Amount" shall mean, with respect to any Remarketing Agent Notes, an amount equal
to the Daily Deferred Rate, as hereinafter defined, multiplied by the daily
principal balance of such Remarketing Agent Notes for the actual number of days
such Auction Rate Notes constitute Remarketing Agent Notes. For purposes of this
Section 2.03.2.11, "Daily Deferred Rate" shall mean an amount equal to the
excess, if any, of (x) the rate published as the "Broker Call" in The Wall
Street Journal on each day the Remarketing Agent is the owner of such
Remarketing Agent Notes over (y) the new Series Interest Rate in effect for such
Auction Rate Notes from and after the Auction Period Conversion Date. Any
accrued but unpaid Remarketing Agent Recovery Amount is payable from the Note
Payment Account, to the extent funds are available therefor after payment of all
other amounts payable therefrom, on each Auction Period Distribution Date.
In the event that the Remarketing Agent acquires Auction Rate Notes
other than in connection with a mandatory tender in anticipation of an Auction
Period Conversion, such Auction Rate Notes will not constitute Remarketing Agent
Notes prior to Auction Period Conversion. In the event that the Remarketing
Agent holds such Auction Rate Notes and such Auction Rate Notes become subject
to Auction Period Conversion, the Remarketing Agent will tender them to the
Indenture Trustee, and in connection with such Auction Period Conversion such
Auction Rate Notes may become Remarketing Agent Notes in accordance with the
provisions of this Section 2.03.2.11.
SECTION 2.03.3 Carryover Interest. The Calculation Agent and Auction
Agent, as appropriate, shall announce the Formula Rate and the Net Loan Rate to
the Indenture Trustee and the Issuer.
If, with respect to any Series of Notes for any Interest Accrual
Period, interest at the Formula Rate exceeds interest at the Net Loan Rate with
respect to such Series of Notes for such Interest Accrual Period, the Series
Interest Rate for such Interest Accrual Period shall be the Net Loan Rate, and
the Indenture Trustee, on the Distribution Date for such Interest Accrual
Period, shall pay to the Holders of such Series of Notes interest at the Net
Loan Rate. With respect to such Series of Notes, the Indenture Trustee shall
also calculate the amount by which interest at the Formula Rate exceeds interest
at the Net Loan Rate for such Interest Accrual Period, and such excess, together
with interest thereon (compounded on each Distribution Date for the related
Series when such interest is not paid on the first Distribution Date for such
Series when such interest was otherwise payable) at the applicable Formula Rate
from the Distribution Date for the related Series on which such excess was
calculated until paid, if at all, shall
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constitute Carryover Interest. Such Carryover Interest shall be paid on each
Distribution Date for the related Series subsequent to the Distribution Date on
which such excess was calculated to the extent funds are available therefor in
the Note Payment Account of the Collection Fund after making the other required
payments from the Note Payment Account in accordance with the provisions of
Section 5.5.2 of the Base Indenture and Section 4.02 hereof. Carryover Interest
shall continue to be so payable notwithstanding that the principal amount of the
applicable Series of Notes has been reduced to zero until (i) no Notes remain
outstanding and (ii) the balances in the Funds and Accounts have been reduced to
zero. For purpose of the Indenture any reference herein to "principal or
"interest" shall not include within the meaning of such words Carryover
Interest.
Carryover Interest shall be separately calculated for each Series of
Notes by the Indenture Trustee in sufficient time for the Indenture Trustee to
give notice to each Holder of such Carryover Interest as required in this
paragraph. On the Distribution Date for an Interest Accrual Period with respect
to which Carryover Interest has been calculated by the Indenture Trustee, the
Indenture Trustee shall, in accordance with Section 7.10 of the Base Indenture,
give written notice to each Holder of the Carryover Interest applicable to such
Holder's Note for such Interest Accrual Period, which written notice may
accompany the payment of interest by check made to each such Holder on such
Distribution Date or otherwise shall be mailed on such Distribution Date by
first class mail, postage prepaid, to each such Holder at such Xxxxxx's address
as it appears on the books of registry maintained by the Indenture Trustee
pursuant to the Indenture.
Such notice shall state, in addition to such Carryover Interest, that,
Carryover Interest shall continue to be payable notwithstanding that the
principal amount of the applicable Series of Notes has been reduced to zero
until (i) no Notes remain outstanding and (ii) the balances in the Funds and
Accounts have been reduced to zero.
SECTION 2.03.4 Additional Provisions Regarding Series Interest Rate.
The determination of a Series Interest Rate by the Calculation Agent, 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 Holders of the Series
of Note or Notes to which such Series Interest Rate applies, and the Issuer and
the Indenture Trustee may rely thereon for all purposes.
In no event shall the cumulative amount of interest paid or payable on
a Series of Notes (including interest calculated as provided herein, plus any
other amounts that constitute interest on the Notes of such Series under
applicable law which are contracted for, charged, reserved, taken or received
pursuant to the Notes of such Series or related documents) calculated from the
Date of Issuance of the Notes of such Series through any subsequent day during
the term of the Notes of such Series or otherwise prior to payment in full of
the 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 Notes of such Series or related documents or
otherwise contracted for, charged, reserved, taken or received in connection
with the Notes of such Series, or if the redemption or acceleration of the
maturity of the Notes of such Series results in payment to or receipt by the
Holder or any former Holder of the Notes of such Series of any interest in
excess of that permitted by applicable law, then, notwithstanding
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any provision of the Notes of such Series or related documents to the contrary,
all excess amounts theretofore paid or received with respect to the Notes of
such Series shall be credited on the principal balance of the Notes of such
Series (or, if the Notes of such Series have been paid or would thereby be paid
in full, refunded by the recipient thereof), and the provisions of the Notes of
such Series and related documents shall immediately be deemed reformed 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 Notes of such Series and under the related documents.
SECTION 2.04 Forms of Notes and Instructions for Payment. The Senior
Notes and the certificate of authentication and form of assignment for transfer
to be endorsed thereon shall be in substantially the form of Exhibits B or C
hereof, as appropriate, with necessary or appropriate variations, omissions or
insertions, as permitted or required by this Indenture.
Each Subordinate Note and the certificate of authentication and form of
assignment for transfer to be endorsed thereon shall be in substantially the
form of Exhibit D hereof, with necessary or appropriate variations, omissions or
insertions, as permitted or required by this Indenture.
Any instructions to the Indenture Trustee for payment of interest on
the Notes shall be in substantially the form of Exhibit E hereof, with necessary
or appropriate variations, omissions or insertions, as permitted or required by
this Indenture.
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ARTICLE III
Redemption of the Notes
SECTION 3.01 Redemption of Notes in General. The Notes shall be subject
to redemption prior to their Legal Final Maturity only upon the terms and
conditions, and only on the applicable dates and at the redemption price, as are
set forth in this Terms Supplement. The redemption price of the Notes shall, in
each case, be par plus (i) accrued interest to the applicable dates on which
such redemption will occur and (ii) all unpaid Carryover Interest, if any,
thereon. Principal of and interest and unpaid Carryover Interest on the Notes
shall be paid from the moneys available therefor in the Note Payment Account in
the Collection Fund and in the Reserve Fund.
If Outstanding Notes are to be redeemed pursuant to the provisions of
this Article III, the Indenture Trustee shall give written notice of such
redemption to the Holders of such Outstanding Notes not less than fifteen (15)
days prior to the applicable dates on which such Outstanding Notes are to be
redeemed. Each notice of redemption shall state (i) the date, Series and numbers
of the Notes to be redeemed, the applicable dates on which such redemption will
occur and the redemption price payable upon such redemption; (ii) that the
interest on such Outstanding Notes and on any unpaid Carryover Interest shall
cease to accrue from and after the applicable date on which such redemption will
occur and (iii) that on said date there will become due and payable on each such
Outstanding Note the principal amount thereof and the interest accrued on such
principal amount to the applicable date on which the redemption will occur and
all unpaid Carryover Interest. Each notice of redemption shall also state that
each such Outstanding Note must be surrendered to the Indenture Trustee for
payment of the principal of and interest and any unpaid Carryover Interest on
such Outstanding Notes.
If notice of redemption of Outstanding Notes has been duly given as
hereinbefore provided and if moneys for the payment of the principal of and
interest and any unpaid Carryover Interest on such Outstanding Notes are held
for the purpose of such payment by the Indenture Trustee, then such Outstanding
Notes shall, on the applicable dates on which such redemption will occur, become
due and payable, and interest on said Outstanding Notes and on any unpaid
Carryover Interest shall cease to accrue.
All Notes surrendered pursuant to the provisions of this Article III
shall be canceled by the Indenture Trustee.
SECTION 3.02 Auction of Financed Student Loans; Redemption of
Outstanding Notes from Auction Proceeds prior to the Legal Final Maturity. On or
after ________________, if the then outstanding Pool Balance is __% or less of
the Initial Pool Balance, the Indenture Trustee shall offer the Financed Student
Loans in the Trust Estate for sale. The Issuer, its affiliates and unrelated
third parties may offer bids to purchase such Financed Student Loans on or prior
to such date. If at least two bids are received, the Indenture Trustee shall
accept the higher bid if it, together with the funds (including the Value of
Eligible Investments, if any, to the credit of the Reserve Fund) on deposit in
the Reserve Fund, will pay
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accrued and unpaid Program Operating Expenses and all fees and expenses in
connection with the sale of the Financed Student Loans and the redemption of the
Notes (the "Transaction Costs") and all principal of and accrued interest and
unpaid Carryover Interest on all such Outstanding Notes due to the Noteholders.
If at least two bids are not received or the bid proceeds, together with the
funds (including the Value of Eligible Investments, if any, to the credit of the
Reserve Fund) on deposit in the Reserve Fund, are not sufficient to pay
Transaction Costs and all principal of and accrued interest and unpaid Carryover
Interest on all such Outstanding Notes due to the Noteholders, the Indenture
Trustee shall not consummate the sale and may, but is not obligated to, solicit
bids for the Financed Student Loans in the Trust Estate on future Distribution
Dates until a successful bid is accepted or until the Notes have been paid in
full. The net proceeds of such purchase, together with such funds from the
Reserve Fund as are necessary to effect such redemption, shall be applied to
redeem all Outstanding Notes at par plus accrued interest to and all unpaid
Carryover Interest on the next applicable Distribution Date.
SECTION 3.03 Optional Redemption of Notes prior to the Legal Final
Maturity. (a) All Outstanding Notes will be subject to redemption in whole on
any applicable Distribution Date in the event the Issuer exercises its option to
repurchase all remaining Financed Student Loans, and thus effect the early
retirement of the Notes, on any applicable Distribution Date for the applicable
Series of Notes on or after the Monthly Distribution Date on which the Pool
Balance is equal to 10% or less of the Initial Pool Balance, at a price at least
equal to, for each Financed Student Loan, the outstanding principal balance of
such Financed Student Loan as of the end of the preceding Collection Period,
together with all accrued interest thereon and unamortized premiums, if any, and
sufficient to pay Transaction Costs and all amount due to the Noteholders,
including Carryover Interest, after application of funds (including the Value of
Eligible Investments, if any, to the credit of the Reserve Fund) on deposit in
the Reserve Fund.
In connection with the optional redemption of any Notes, all unpaid
Carryover Interest on such Notes (and accrued interest, if any, thereon) shall
be paid on or before the date of optional redemption of such Notes.
(b) On and after such date that there are no Series 1999A-1 Notes
Outstanding, the Auction Rate Notes shall be subject to redemption in whole or
in part on any Auction Period Commencement Date prior to their Final Legal
Maturity, at the option of the Issuer (including the designation of which Series
is to be redeemed) from funds deposited by or on behalf of the Issuer or
otherwise to the credit of the Note Payment Account, upon notice given by the
Indenture Trustee to the Noteholders thereof not less than fifteen (15) days
prior to the redemption date in the form and manner described in 3.01 hereof, at
a redemption price of 100% of the principal amount redeemed plus accrued
interest to the date of redemption. The Issuer may not exercise its option to
redeem any Auction Rate Notes unless after any such redemption the Parity
Percentage is no less than ___% and the provisions of Section 5.4 of the Base
Indenture regarding the minimum amount of Financed Student Loans bearing
interest at a fixed rate held in the Student Loan Portfolio Fund are satisfied.
With respect to the optional redemption of Auction Rate Notes pursuant to this
Section 3.03, in the event of a redemption in part of a Series, the Auction Rate
Notes to be redeemed will be selected by lot by the Indenture
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Trustee. No Auction Rate Notes will be subject to redemption in part in an
amount less than an Authorized Denomination thereof, and no portion of the
Auction Rate Notes is to be retained by a Noteholders in an amount less than an
Authorized Denomination.
In connection with the optional redemption of any Auction Rate Notes,
all unpaid Carryover Interest on such Auction Rate Notes (and accrued interest,
if any, thereon) shall be paid on or before the date of optional redemption of
such Auction Rate Notes.
Any amounts in the Note Payment Account in excess of the amounts
thereof applied to an optional redemption pursuant to this Section 3.03(b) shall
remain in such Account until such amounts are applied by the Indenture Trustee
to any other payments to be made from such Account as provided in Section 5.5.1
of the Base Indenture and Section 4.02 hereof or transferred to the Issuer upon
its written request if such amounts represent funds deposited by or on behalf of
the Issuer.
Auction Rate Notes to be redeemed pursuant to this Section 3.03(b)
shall be redeemed by the Indenture Trustee only upon written notice from the
Issuer to the Indenture Trustee. That notice shall specify the redemption date
and shall be given at least twenty (20) days prior to the redemption date or
such shorter period as shall be acceptable to the Indenture Trustee in its sole
discretion. Before the Indenture Trustee shall give notice of redemption to the
Noteholders as provided in Section 3.01 hereof, the Indenture Trustee shall
confirm that there is on deposit in the Note Payment Account funds which will be
sufficient to pay on the date fixed for redemption the redemption price of the
Auction Rate Notes to be redeemed pursuant to such notice.
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ARTICLE IV
Disposition of Proceeds of the Notes; Collection Account;
Acquisition Fund
SECTION 4.01 Disposition of Proceeds of the Notes. All proceeds of the
issuance and sale of the Series of Notes hereunder shall be deposited with the
Indenture Trustee on the Date of Issuance, and the Indenture Trustee shall
deposit such proceeds to the following Funds and Accounts:
(a) $________ of the proceeds of the Notes, an amount equal to the
Specified Reserve Fund Balance, shall be deposited by the Indenture
Trustee upon receipt in the Reserve Fund;
(b) $_________ of the proceeds of the Notes shall be deposited by the
Indenture Trustee upon receipt to the Collection Account in the Collection
Fund;
(c) $3________ of the proceeds of the Notes shall be deposited by the
Indenture Trustee upon receipt to the Expense Account in the Collection
Fund; and
(d) The balance of the proceeds of the Notes shall be deposited by the
Indenture Trustee upon receipt in the Acquisition Fund.
SECTION 4.02 Disposition of Collection Account.
On or before _____________, amounts on deposit in the Collection
Account constituting Consolidation Loan prepayments may be applied for the (i)
Financing of Consolidation Loans by the Eligible Lender Trustee on behalf of the
Issuer that consolidate one or more of the Financed Student Loans, provided that
in no event shall the aggregate amount of Financed Student Loans that are
Consolidation Loans exceed $___________, or (ii) purchase, directly or
indirectly through the Eligible Lender Trustee, by the Issuer of Student Loans
for the purpose of combining or consolidating loans of a single obligor
(sometimes known as serial loans). The moneys to be so applied will be an amount
equal to the full remaining unpaid principal and accrued and unpaid interest and
late charges on all Financed Student Loans selected by the obligor for
consolidation or by the Issuer for purchase.
On each Monthly Distribution Date, as described below, the Indenture
Trustee shall transfer from the Collection Account the following amounts in the
following priority, subject to Available Funds for the immediately preceding
Collection Period:
(i) to the Expense Account, to the extent required to increase the
balance of such Account to the Program Expense Requirement calculated as
of such Monthly Distribution Date;
(ii) to the Note Payment Account,
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(a) an amount up to (1) the Series 1999A-1 Noteholders' Interest
Distribution Amount for payment on such Monthly Distribution Date
to the Series 1999A-1 Noteholders, ratably, without preference or
priority of any kind and (2) any related Senior Issuer Exchange
Payment for payment to the related Senior Exchange Counterparty;
(b) an amount up to (1) the Series 1999A-2 Noteholders' Interest
Distribution Amount for payment on each Auction Period
Distribution Date occurring in the next succeeding calendar month
to the Series 1999A-2 Noteholders, ratably, without preference or
priority of any kind and (2) any related Senior Issuer Exchange
Payment with respect to the Series 1999A-2 Notes for payment to
the related Senior Exchange Counterparty;
(iii) to the Note Payment Account, an amount up to (a) the Series
1999B-1 Noteholders' Interest Distribution Amount for payment on
such Monthly Distribution Date to the Series 1999B-1 Noteholders,
ratably, without preference or priority of any kind and (b) any
related Subordinate Issuer Exchange Payment for payment to the
related Subordinate Exchange Counterparty;
(iv) to the Note Payment Account,
(a) an amount up to the Series 1999A Noteholders' Principal
Distribution Amount for payment on such Monthly Distribution Date
to the Series 1999A-1 Noteholders until the Outstanding principal
balance of Series 1999A-1 Notes has been reduced to zero, then,
(b) once the Series 1999A-1 Notes are no longer Outstanding, an
amount up to the Series 1999A Noteholders' Principal Distribution
Amount for payment on the next succeeding Auction Period
Distribution Date to the Series 1999A-2 Noteholders until the
Outstanding principal balance of the Series 1999A-2 Notes has been
reduced to zero;
(v) once the Series 1999A Notes are no longer Outstanding, to the Note
Payment Account, an amount up to the Series 1999B-1 Noteholders'
Principal Distribution Amount for payment on such Monthly
Distribution Date to the Series 1999B-1 Noteholders until the
Outstanding principal balance of the Series 1999B-1 Notes has been
reduced to zero;
(vi) to the Reserve Fund the amount, if any, required to increase the
balance thereof to the Specified Reserve Fund Balance as provided
for in Section 5.2 of the Base Indenture;
(vii) to the Note Payment Account, an amount up to Parity Percentage
Payments to the extent then required:
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(a) for payment on such Monthly Distribution Date to the Series
1999A-1 Noteholders until the principal balance of the Series
1999A-1 Notes has been reduced to zero, then
(b) once the Series 1999A-1 Notes are no longer Outstanding, for
payment on the next succeeding Auction Period Distribution Date to
the Series 1999A-2 Noteholders until the principal balance of the
Series 1999A-2 Notes has been reduced to zero, then
(c) once the Series 1998A Notes are no longer Outstanding, for
payment on such Monthly Distribution Date to the Series 1999B-1
Noteholders until the principal balance of each such Series of
Series 1999B-1 Notes has been reduced to zero;
(viii) to the Note Payment Account, an amount up to any Carryover
Interest,
(a) first to the Series 1999A-1 Noteholders for payment on such
Monthly Distribution Date, and upon payment of all Carryover
Interest due to the Series 1999A-1 Noteholders, then,
(b) to the Series 1999A-2 Noteholders for payment on the next
succeeding Auction Period Distribution Date, and upon payment of
all Carryover Interest due to the Series 1999A-2 Noteholders,
then,
(c) to the Series 1999B-1 Noteholders for payment on such Monthly
Distribution Date;
(ix) to the Note Payment Account, an amount up to the amount, if any,
owed an Exchange Counterparty in respect of an early termination
payment or damages for early termination by, or as a result of a
default by the Issuer under any Exchange Agreement for payment to
such Exchange Counterparty; and
(x) any remainder, to the Excess Surplus Account.
Notwithstanding the foregoing, if on any Monthly Distribution Date after giving
effect to all distributions to be made on such Monthly Distribution Date,
either:
(a) the Outstanding principal amount of the Series 1999A Notes would
exceed the sum of (i) the Pool Balance plus (ii) the aggregate
balance on deposit in the Funds and Accounts (exclusive of the
balance of the Student Loan Portfolio Fund) under the Indenture at
the end of the immediately preceding Collection Period, less all
distributions to be made on such Distribution Date, or
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(b) an Event of Default described in item 1 of the first paragraph of
Section 8.1 of the Base Indenture has occurred (but prior to the
acceleration of the Legal Final Maturity of the Notes),
then, until the applicable conditions described in clauses (a) and (b) no longer
exist, the Series 1999B-1 Noteholders' Interest Distribution Amount and the
Series 1999B-1 Noteholders' Principal Distribution Amount will not be paid to
the Series 1999B-1 Noteholders pursuant to clauses (iii) and (v) above and no
Subordinate Issuer Exchange Payment shall be made. For so long as any Series
1999A Notes remain Outstanding, such deferral in the payment of the Series
1999B-1 Noteholders' Interest Distribution Amount, the Series 1999B-1
Noteholders' Principal Distribution Amount or Subordinate Issuer Exchange
Payments (except with respect to the Legal Final Maturity of the Series 1999B-1
Notes) shall not constitute an Event of Default. In addition, as long as the
applicable conditions described in clause (b) continue to exist, the Series
1998A Noteholders' Principal Distribution Amount shall be paid pro rata among
each Series of Series 1999A Notes, without preference or priority of any kind.
In connection with transfers made pursuant to subclause (b) of item
(ii) above, if the Series Interest Rate for the Auction Rate Notes is unable to
be calculated on any Monthly Distribution Date with regard to one or more
Auction Period Distribution Dates for such Notes occurring in the calendar month
next succeeding such Monthly Distribution Date, the Indenture Trustee shall
calculate the Noteholders' Interest Distribution Amount using the Net Loan Rate
for the preceding Collection Period. To the extent the Series Interest Rate once
calculated is lower than the Net Loan Rate, any excess deposited to the Note
Payment Account pursuant to subclause (b) of item (ii) above shall be
transferred to the Collection Account.
Notwithstanding the foregoing, principal payments will be made to the
Auction Rate Noteholders only in amounts equal to $50,000 and integral multiples
in excess thereof. If the amount in the Note Payment Account otherwise required
to be applied as a payment of principal either (i) is less than $50,000 or (ii)
exceeds an even multiple of $50,000, then, in the case of (i), such entire
amount or, in the case of (ii), such excess amount, will not be paid as
principal on the upcoming Auction Period Distribution Date, but will be retained
in the Note Payment Account until the amount therein available for payment of
principal equals $50,000.
With respect to the Series of Auction Rate Notes entitled to receive
payments of principal, the actual Notes of such Series that will receive
payments of principal on each applicable Auction Period Distribution Date will
be selected no later than five (5) Business Days prior to the such Auction
Period Distribution Date by the Indenture Trustee by lot in such manner as the
Indenture Trustee in its discretion may determine and which will provide for the
selection for payment of principal in the minimum denominations of $50,000, and
integral multiples in excess thereof.
Notice of the specific Auction Rate Notes to receive payments of
principal is to be given by the Indenture Trustee by first-class, postage
prepaid, mailed not less than five (5) Business Days but no more than ten (10)
Business Days before the applicable Auction Period Distribution Date at the
address of the applicable Noteholder appearing on the registration books.
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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
Auction Period Distribution Date, (ii) the amount of principal to be paid, and
(iii) the Series of Auction Rate Notes to be paid.
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ARTICLE V
Miscellaneous
SECTION 5.01 Execution and Delivery of this Terms Supplement.
This Terms Supplement is executed and delivered pursuant to Section 2.1 of the
Base Indenture.
SECTION 5.02. Effect of Terms Supplement on Indenture. This
Terms Supplement shall supplement the Base Indenture, which is in all respects
ratified and confirmed, and the Base Indenture so supplemented by this Terms
Supplement shall be read, taken and construed as one and the same instrument.
Each addition to and amendment of the Base Indenture herein is solely for the
purposes of the Notes. If any term of this Terms Supplement conflicts with any
terms of the Base Indenture, this Terms Supplement shall control for purposes of
the Notes.
SECTION 5.03 Execution of Counterparts. This Terms Supplement
may be executed in several counterparts, each of which shall be regarded as an
original and all of which shall constitute but one and the same document. It
shall not be necessary in proving this Terms Supplement to produce or account
for more than one of those counterparts.
SECTION 5.04. Governing Law. This Terms Supplement is entered
into with the intent that the laws of the State of Ohio shall govern its
construction, without giving effect to the conflict of law principles thereof.
[balance of page left blank intentionally]
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IN WITNESS WHEREOF, STUDENT LOAN FUNDING 1999-A TRUST, by
Firstar Bank, National Association, not in its individual capacity, but solely
as co-owner trustee of the Issuer, has caused this Terms Supplement to be signed
in its name and on its behalf by one of its officers thereunto duly authorized;
and FIRSTAR BANK, NATIONAL ASSOCIATION, as Initial Co-Owner Eligible Lender
Trustee, has caused this Terms Supplement to be signed in its name and on its
behalf by one of its officers thereunto duly authorized; and FIRSTAR BANK,
NATIONAL ASSOCIATION, to evidence its acceptance of the trusts hereby created,
has caused this Terms Supplement to be signed in its name and on its behalf by
one of its officers thereunto duly authorized, all as of the date first above
written.
STUDENT LOAN FUNDING 1999-A TRUST
By Firstar Bank, National Association,
not in its individual capacity, but
solely as co-owner trustee of the
Issuer
By________________________________
Title:____________________________
FIRSTAR BANK, NATIONAL ASSOCIATION,
as Initial Co-Owner Eligible Lender
Trustee
By________________________________
Title:____________________________
FIRSTAR BANK, NATIONAL ASSOCIATION,
as Indenture Trustee
By________________________________
Title:____________________________
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SCHEDULE I
TERMS OF SENIOR NOTES
INITIAL INTEREST RATE (A-1) ____%
INITIAL INTEREST RATE (A-2): ____%
DATED DATE: ___________, 1999.
INITIAL INTEREST DETERMINATION DATE FOR ___________, 1999
SERIES 1999A-1 NOTES:
INITIAL INTEREST DETERMINATION DATE FOR ___________, 1999
SERIES 1999A-2 NOTES:
SERIES 1999A-1 - NUMBERED FROM: A-1
SERIES 1999A-2 - NUMBERED FROM: B-1
TERMS OF SUBORDINATE NOTES
INITIAL INTEREST RATE: ____%
DATED DATE: ____________, 1999
INITIAL INTEREST DETERMINATION DATE FOR THE ____________, 1999
SERIES 1999B-1 NOTES:
SERIES 1999B-1 - NUMBERED FROM: C-1
I-1
56
EXHIBIT A
DISTRIBUTION STATEMENT
NOTEHOLDERS' STATEMENT FOR STUDENT LOAN FUNDING 1999-A TRUST
STUDENT LOAN ASSET-BACKED NOTES SERIES 1999 A-1, A-2 AND B-1
FOR COLLECTION PERIOD ENDING
Monthly Distribution Date:______________________
(A) Principal Factor
(i) Series A-1 Notes:____________
(ii) Series B-1 Notes:____________
(B) Amount of principal being paid or distributed:
(i) Series A-1 Notes:$___________
(ii) Series A-2 Notes:$___________
(iii) Series B-1 Notes:$___________
(C) (i) Amount of Interest being paid or distributed:
(a) Series A-1 Notes:$____________
(b) Series A-2 Notes:$____________
(c) Series B-1 Notes:$____________
(ii) Applicable Interest Rates (based on the
[Formula Rate/Net Loan Rate]:
(a) Series A-1 Notes:____________%
(b) Series A-2 Notes:____________%
(c) Series B-1 Notes:____________%
(D) Amount of Distribution allocable to any Carryover Interest:
(i) Series A-1 Notes:$____________
(ii) Series A-2 Notes:$____________
(iii) Series B-1 Notes:$____________
(E) Pool Balance at end of preceding Collection Period:$___________
(F) After giving effect to distributions on this Distribution Date:
(i) outstanding principal amount of Series A-1 Notes:$_____________
(ii) outstanding principal amount of Series A-2 Notes:$_____________
(iii) outstanding principal amount of Series B-1 Notes:$______________
(G) Amount of Program Operating Expenses to be allocated for the upcoming
Distribution Date:$______________
(H) (i) Aggregate amount of Realized Losses (if any) for the
Collection Period immediately preceding the Distribution
Date:$_____________
A-1
57
(ii) Amount received for recoveries of Realized Losses from a
previous Collection Period$____________
(a) interest:$_____________
(b) principal:$____________
(I) (i) Amount of distribution attributable to amounts in the
following Funds:
(a) Reserve Fund:$_________
(b) Expense Account:$____________
(c) Acquisition Fund:$____________
(d) Collection Account:$__________
(e) Note Payment Account:$________
(f) Excess Surplus Account:$________
(ii) Balance of Funds and Accounts on Distribution Date
(a) Reserve Fund:$_________
(b) Expense Account:$___________
(c) Acquisition Fund:$___________
(d) Collection Account:$__________
(e) Note Payment Account:$___________
(f) Excess Surplus Account:$___________
(iii) Parity Percentage:__________%
(iv) Senior Parity Percentage:___________%
(v) Amount of Parity Percentage Payments:$__________
(J) The aggregate amount paid for Financed Student Loans purchased from the
Student Loan Portfolio Fund during the immediately preceding Collection
Period:$____________
(K) Amount of Financed Student Loans:
(i) that are 31 through 60 days delinquent:$_________
(ii) that are 61 through 90 days delinquent:$__________
(iii) that are 91 through 120 days delinquent:$___________
(iv) that are more than 120 days delinquent:$____________
(v) for which claims have been filed with the appropriate
guarantor or the Secretary and which are awaiting
payment:$___________
By: Star Bank as Indenture Trustee for Student Loan Funding 1999-A Trust Student
Loan Asset-Backed Notes, Series 1999A and Series 1999B.
A-2
58
EXHIBIT B
FORM OF SENIOR LIBOR RATE NOTE
THE INTEREST ON THIS SERIES 1999A-1 NOTE IS NOT EXCLUDABLE FROM GROSS INCOME FOR
FEDERAL INCOME TAX PURPOSES.
Registered Registered
No. A-__ $__,000,000
STUDENT LOAN FUNDING 1999-A TRUST
STUDENT LOAN SENIOR ASSET-BACKED NOTE
SERIES 1999A-1
(LIBOR RATE)
Dated: ___________, 1999 CUSIP: ______________
Interest Rate: As Herein Provided Legal Final Maturity: ________________
Student Loan Funding 1999-A Trust, a common law (as opposed to
statutory) trust created under the laws of the State of Delaware (herein called
the "Issuer"), by Firstar Bank, National Association, a national banking
association duly organized and existing under the laws of the United States, not
in its individual capacity, but solely as co-owner trustee of the Issuer on
behalf of the Issuer (the "Co-Owner Trustee"), hereby acknowledges itself
indebted and, for value received, hereby promises to pay (but only out of the
Trust Estate) to
CEDE & CO.
or registered assigns, on the Legal Final Maturity stated above (subject to
prior redemption referred to herein), the principal sum of
________________________________ DOLLARS
in lawful money of the United States of America; and to pay interest thereon at
the Series Interest Rate applicable for each Interest Accrual Period on the
dates as provided herein (but only out of said Trust Estate) in like lawful
money.
This Series 1999A-1 Note is one of a duly authorized issue of notes of
the Issuer designated as "Student Loan Funding 1999-A Trust Student Loan Senior
Asset-Backed Notes, Series 1999A-1 (LIBOR Rate)" in the aggregate principal
amount of $___________ (this series herein referred to as the "Series 1999A-1
Notes"), issued (a) pursuant to a resolution duly adopted by the board of
directors of the Issuer authorizing the issuance of the Series 1999A-1 Notes and
(b) under an Indenture of Trust, dated as of ________ 1, 1999 (the "Base
Indenture"), and a Terms Supplement, dated as of even date with the Base
Indenture (the "Terms Supplement"), as such Base Indenture and Terms Supplement
is supplemented or amended from time to time (the "Indenture"), each by and
among the Issuer, Firstar Bank, National Association, as initial eligible lender
trustee on behalf of the Issuer (the "Initial Co-Owner Eligible Lender Trustee"
and together with any other eligible lender trustee, each an "Eligible Lender
Trustee"), and Firstar Bank, National Association, as indenture trustee (the
"Indenture Trustee"). The Series 1999A-1 Notes are issued simultaneously and on
a parity with the Issuer's $__________ Student Loan Senior Asset-Backed Callable
Notes, Series 1999A-2 (Auction Rate) (the "Series 1999A-2 Notes" and, together
with the Series 1999A-1 Notes, the Series 1999A Notes), and simultaneously with
and on a basis senior to the Issuer's $___________ Student Loan Subordinate
Asset-Backed Notes, Series 1999B-1 (LIBOR Rate) (the "Series 1999B-1 Notes" and
collectively with the Series 1998A Notes, the "Notes").
Reference is hereby made to the Indenture, a copy of which is on file
with the Indenture Trustee, and to all of the provisions thereof, to all of
which provisions the Holder of this Series 1999A-1 Note, by acceptance hereof,
hereby assents and agrees, for definitions of terms; the descriptions of and the
nature and extent of the security for
B-1
59
the Series 1999A-1 Notes; the student loan purchase program being financed by
the issuance of the Series 1999A-1 Notes; the revenues and other assets pledged
(the "Trust Estate") to the payment of the principal of and interest and any
Carryover Interest on the Series 1999A-1 Notes (subject to the prior rights of
the Indenture Trustee to any realization from the Indenture Trustee's lien on
and security interest in the Trust Estate for payment of its fees and expenses
and the fees and expenses of each Eligible Lender Trustee); the nature and
extent and manner of enforcement of the pledge; the conditions upon which the
Indenture may be amended or supplemented with or without the consent of the
Holders of the Directing Notes; the rights and remedies of the Holders of the
Series 1999A-1 Notes, including the limitations therein contained upon the right
of a Holder to institute any suit, action or proceeding in equity or at law with
respect hereto and thereto; the rights, duties and obligations of the Issuer,
each Eligible Lender Trustee and the Indenture Trustee thereunder; the terms and
provisions upon which the liens, pledges, charges, trusts, security interests,
assignments and covenants made therein may be discharged at or prior to the
maturity of this Series 1999A-1 Note, this Series 1999A-1 Note thereafter no
longer being secured by the Indenture or being deemed to be outstanding
thereunder; and for the other terms and provisions thereof. References in this
Series 1999A-1 Note to the name "Student Loan Funding 1999-A Trust" or to the
term "Issuer" shall mean the Co-Owner Trustee, not in its individual capacity,
but solely as Co-Owner Trustee of the Issuer on behalf of the Issuer.
Words and terms used as defined words and terms in this Series 1999A-1
Note and not otherwise defined herein shall have the meanings given them in the
Indenture.
The principal of and interest and Xxxxxxxxx Interest, if any, on the
Series 1999A-1 Notes are limited obligations of the Issuer payable only out of
the Trust Estate, as and to the extent set forth in the Indenture, and are
secured by a pledge of, lien on, security interest in and assignment of the
Trust Estate, subject to the provisions of the Indenture permitting the
application thereof for the purposes and on the terms and conditions set forth
in the Indenture.
THE INTEREST ACCRUAL PERIOD, THE APPLICABLE SERIES INTEREST RATE, THE
METHOD OF DETERMINING THE SERIES INTEREST RATE ON EACH OF THE SERIES 1999A-1
NOTES, THE DISTRIBUTION OF PRINCIPAL OF AND INTEREST AND CARRYOVER INTEREST, IF
ANY, ON THIS SERIES 1999A-1 NOTE AND REDEMPTION OF THIS SERIES 1999A-1 NOTE WILL
BE DETERMINED IN ACCORDANCE WITH THE TERMS, CONDITIONS AND PROVISIONS OF THE
INDENTURE AND THE CALCULATION AGENT 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.
No covenant or agreement contained in this Series 1999A-1 Note or in
the Indenture shall be deemed to be a covenant or agreement of any director,
officer, agent or employee of the Issuer in his or her individual capacity, and
none of such directors, officers, agents or employees nor any person executing
this Series 1999A-1 Note on behalf of the Issuer shall be liable personally on
this Series 1999A-1 Note or be subject to any personal liability or
accountability by reason of the issuance of this Series 1999A-1 Note.
If an Event of Default occurs, the principal of and interest on all
Notes issued under the Indenture may be declared due and payable upon the
conditions and in the manner and with the effect provided in the Indenture. The
Indenture and the rights and obligations of the Issuer, each Eligible Lender
Trustee, the Indenture Trustee and the registered owner hereof may be modified
or amended in the manner and subject to the conditions set forth in the
Indenture.
Except when this Series 1999A-1 Note is held in a Book-entry System,
this Series 1999A-1 Note is transferable by the registered owner hereof or its
attorney duly authorized in writing at the principal corporate trust office of
the Indenture Trustee, upon surrender of this Series 1999A-1 Note, accompanied
by a duly executed instrument of transfer in the form set forth herein, with
signature guaranteed in a manner satisfactory to the Indenture Trustee, subject
to such reasonable regulations as the Issuer or the Indenture Trustee may
prescribe, and upon payment of any tax, fee or other governmental charge
incident to such transfer. Upon any such transfer there shall be issued in the
name of the transferee a new fully registered Series 1999A-1 Note or Series
1999A-1 Notes of Authorized Denominations of the same aggregate principal amount
and date as this Series 1999A-1 Note. The person in whose name this Series
1999A-1 Note is registered shall be deemed the owner hereof for all purposes,
and the Issuer, the Indenture Trustee and any other designated Authenticating
Agent shall not be affected by any notice to the contrary.
B-2
60
The Series 1999A-1 Notes are issuable only as fully registered notes in
Authorized Denominations. Except when this Series 1999A-1 Note is held in a
Book-entry System and subject to the limitations and upon payment of the
charges, if any, provided in the Indenture, Series 1999A-1 Notes may be
exchanged at said office of the Indenture Trustee for a like aggregate principal
amount of Series 1999A-1 Notes of the same date and series of other Authorized
Denominations.
In any case where the date fixed for the payment of principal of or
interest or Carryover Interest on this Series 1999A-1 Note shall not be a
Business Day, then payment of such principal or interest or Carryover 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 issuance of this Series 1999A-1 Note and the issue of
which it is one, have happened, exist and have been performed in regular and due
time, form and manner as required by law; and that this Series 1999A-1 Note and
the issue of which it is one do not exceed any limitations of indebtedness
prescribed by law or otherwise applicable to the Issuer.
This Series 1999A-1 Note shall not be entitled to any benefit under the
Indenture, or become valid or obligatory for any purpose, until the certificate
of authentication and registration hereon endorsed shall have been signed by the
Indenture Trustee or the Authenticating Agent.
This Series 1999A-1 Note shall be governed by, and construed and
interpreted in accordance with, the laws of the State of Ohio.
IN WITNESS WHEREOF, the Issuer has caused this Series 1999A-1
Note to be executed in its name and on its behalf by the facsimile signatures of
two Authorized Officers of the Issuer.
STUDENT LOAN FUNDING 1999-A TRUST
By Firstar Bank, National Association,
not in its individual capacity, but solely as co-owner trustee
of the Issuer on behalf of the Issuer
BY: [facsimile signature] BY: [facsimile signature]
---------------------- ---------------------
B-3
61
[FORM OF CERTIFICATE OF AUTHENTICATION AND REGISTRATION]
This is one of the Series 1999A-1 Notes described in the
within mentioned Indenture, and has been registered this date:
Date of Registration and Authentication: _______________________
FIRSTAR BANK, NATIONAL ASSOCIATION,
as Indenture Trustee
By ____________________________________
Authorized Signatory
[Form of Assignment for Transfer]
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _______________ (Tax Identification or Social Security Number:
_______________) the within Student Loan Senior Asset-Backed Note, Series
1999A-1 (LIBOR Rate), of Student Loan Funding 1999-A Trust, and hereby
irrevocably constitutes and appoints _______________ attorney to transfer said
Note on the registry books kept by the Indenture Trustee for that purpose with
full power of substitution in the premises.
Dated_______________ ______________________________
Signature
NOTE: The signature to the assignment must correspond to the
name as written on the face of this Note in every particular, without any
alteration or change whatsoever.
Signature Guarantee:______________________________
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EXHIBIT C
FORM OF SENIOR AUCTION RATE NOTES
THE INTEREST ON THIS SERIES 1999A-2 NOTE IS NOT EXCLUDABLE FROM GROSS INCOME FOR
FEDERAL INCOME TAX PURPOSES.
Registered Registered
No. B-__ $__,000,000
STUDENT LOAN FUNDING 1999-A TRUST
STUDENT LOAN SENIOR ASSET-BACKED NOTE
SERIES 1999A-2
(AUCTION RATE)
Dated: ___________, 1999 CUSIP: ______________
Interest Rate: As Herein Provided Legal Final Maturity: ________________
Student Loan Funding 1999-A Trust, a common law (as opposed to
statutory) trust created under the laws of the State of Delaware (herein called
the "Issuer"), by Firstar Bank, National Association, a national banking
association duly organized and existing under the laws of the United States, not
in its individual capacity, but solely as co-owner trustee of the Issuer on
behalf of the Issuer (the "Co-Owner Trustee"), hereby acknowledges itself
indebted and, for value received, hereby promises to pay (but only out of the
Trust Estate) to
CEDE & CO.
or registered assigns, on the Legal Final Maturity stated above (subject to
prior redemption referred to herein), the principal sum of
________________________________ DOLLARS
in lawful money of the United States of America; and to pay interest thereon at
the Series Interest Rate applicable for each Interest Accrual Period on the
dates as provided herein (but only out of said Trust Estate) in like lawful
money.
This Series 1999A-2 Note is one of a duly authorized issue of notes of
the Issuer designated as "Student Loan Funding 1999-A Trust Student Loan Senior
Asset-Backed Callable Notes, Series 1999A-2 (Auction Rate)" in the aggregate
principal amount of $______,000 (this series herein referred to as the "Series
1999A-2 Notes"), issued (a) pursuant to a resolution duly adopted by the board
of directors of the Issuer authorizing the issuance of the Series 1999A-2 Notes
and (b) under an Indenture of Trust, dated as of ________ 1, 1999 (the "Base
Indenture"), and a Terms Supplement, dated as of even date with the Base
Indenture (the "Terms Supplement"), as such Base Indenture and Terms Supplement
is supplemented or amended from time to time (the "Indenture"), each by and
among the Issuer, Firstar Bank, National Association, as initial eligible lender
trustee on behalf of Issuer (the "Initial Co-Owner Eligible Lender Trustee" and
together with any other eligible lender trustee, each an "Eligible Lender
Trustee"), and Firstar Bank, National Association, as indenture trustee (the
"Indenture Trustee"). The Series 1999A-2 Notes are issued simultaneously and on
a parity with the Issuer's $___________ Student Loan Senior Asset-Backed Notes,
Series 1999A-1 (LIBOR Rate) (the "Series 1999A-1 Notes", and together with the
Series 1999A-1 Notes, the "Series 1999A Notes"), and simultaneously with and on
a basis senior to the Issuer's $__________ Student Loan Subordinate Asset-Backed
Notes, Series 1999B-1 (LIBOR Rate) (the "Series 1999B-1 Notes" and collectively
with the Series 1998A Notes, the "Notes").
Reference is hereby made to the Indenture, a copy of which is on file
with the Indenture Trustee, and to all of the provisions thereof, to all of
which provisions the Holder of this Series 1999A-2 Note, by acceptance hereof,
hereby assents and agrees, for definitions of terms; the descriptions of and the
nature and extent of the security for
C-1
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the Series 1999A-2 Notes; the student loan purchase program being financed by
the issuance of the Series 1999A-2 Notes; the revenues and other assets pledged
(the "Trust Estate") to the payment of the principal of and interest and any
Carryover Interest on the Series 1999A-2 Notes (subject to the prior rights of
the Indenture Trustee to any realization from the Indenture Trustee's lien on
and security interest in the Trust Estate for payment of its fees and expenses
and the fees and expenses of each Eligible Lender Trustee); the nature and
extent and manner of enforcement of the pledge; the conditions upon which the
Indenture may be amended or supplemented with or without the consent of the
Holders of the Directing Notes; the rights and remedies of the Holders of the
Series 1999A-2 Notes, including the limitations therein contained upon the right
of a Holder to institute any suit, action or proceeding in equity or at law with
respect hereto and thereto; the rights, duties and obligations of the Issuer,
each Eligible Lender Trustee and the Indenture Trustee thereunder; the terms and
provisions upon which the liens, pledges, charges, trusts, security interests,
assignments and covenants made therein may be discharged at or prior to the
maturity of this Series 1999A-2 Note, this Series 1999A-2 Note thereafter no
longer being secured by the Indenture or being deemed to be outstanding
thereunder; and for the other terms and provisions thereof. References in this
Series 1999A-1 Note to the name "Student Loan Funding 1999-A Trust" or to the
term "Issuer" shall mean the Co-Owner Trustee, not in its individual capacity,
but solely as Co-Owner Trustee of the Issuer on behalf of the Issuer.
Words and terms used as defined words and terms in this Series 1999A-2
Note and not otherwise defined herein shall have the meanings given them in the
Indenture.
The principal of and interest and Xxxxxxxxx Interest, if any, on the
Series 1999A-2 Notes are limited obligations of the Issuer payable only out of
the Trust Estate, as and to the extent set forth in the Indenture, and are
secured by a pledge of, lien on, security interest in and assignment of the
Trust Estate, subject to the provisions of the Indenture permitting the
application thereof for the purposes and on the terms and conditions set forth
in the Indenture.
THE INTEREST ACCRUAL PERIOD, THE APPLICABLE SERIES INTEREST RATE, THE
METHOD OF DETERMINING THE SERIES INTEREST RATE ON EACH OF THE SERIES 1999A-2
NOTES, THE DISTRIBUTION OF PRINCIPAL OF AND INTEREST AND CARRYOVER INTEREST, IF
ANY, ON THIS SERIES 1999A-2 NOTE AND REDEMPTION OF THIS SERIES 1998A-_ NOTE WILL
BE DETERMINED IN ACCORDANCE WITH THE TERMS, CONDITIONS AND PROVISIONS OF THE
INDENTURE AND THE AUCTION AGENT 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.
No covenant or agreement contained in this Series 1999A-2 Note or in
the Indenture shall be deemed to be a covenant or agreement of any director,
officer, agent or employee of the Issuer in his or her individual capacity, and
none of such directors, officers, agents or employees nor any person executing
this Series 1999A-2 Note on behalf of the Issuer shall be liable personally on
this Series 1999A-2 Note or be subject to any personal liability or
accountability by reason of the issuance of this Series 1999A-2 Note.
If an Event of Default occurs, the principal of and interest on all
Notes issued under the Indenture may be declared due and payable upon the
conditions and in the manner and with the effect provided in the Indenture. The
Indenture and the rights and obligations of the Issuer, each Eligible Lender
Trustee, the Indenture Trustee and the registered owner hereof may be modified
or amended in the manner and subject to the conditions set forth in the
Indenture.
Except when this Series 1999A-2 Note is held in a Book-entry System,
this Series 1999A-2 Note is transferable by the registered owner hereof or its
attorney duly authorized in writing at the principal corporate trust office of
the Indenture Trustee, upon surrender of this Series 1999A-2 Note, accompanied
by a duly executed instrument of transfer in the form set forth herein, with
signature guaranteed in a manner satisfactory to the Indenture Trustee, subject
to such reasonable regulations as the Issuer or the Indenture Trustee may
prescribe, and upon payment of any tax, fee or other governmental charge
incident to such transfer. Upon any such transfer there shall be issued in the
name of the transferee a new fully registered Series 1999A-2 Note or Series
1999A-2 Notes of Authorized Denominations of the same aggregate principal amount
and date as this Series 1999A-2 Note. The person in whose name this Series
1999A-2 Note is registered shall be deemed the owner hereof for all purposes,
and the Issuer, the Indenture Trustee and any other designated Authenticating
Agent shall not be affected by any notice to the contrary.
C-2
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The Series 1999A-2 Notes are issuable only as fully registered notes in
Authorized Denominations. Except when this Series 1999A-2 Note is held in a
Book-entry System and subject to the limitations and upon payment of the
charges, if any, provided in the Indenture, Series 1999A-2 Notes may be
exchanged at said office of the Indenture Trustee for a like aggregate principal
amount of Series 1999A-2 Notes of the same date and series of other Authorized
Denominations.
In any case where the date fixed for the payment of principal of or
interest or Carryover Interest on this Series 1999A-2 Note shall not be a
Business Day, then payment of such principal or interest or Carryover 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 issuance of this Series 1999A-2 Note and the issue of
which it is one, have happened, exist and have been performed in regular and due
time, form and manner as required by law; and that this Series 1999A-2 Note and
the issue of which it is one do not exceed any limitations of indebtedness
prescribed by law or otherwise applicable to the Issuer.
This Series 1999A-2 Note shall not be entitled to any benefit under the
Indenture, or become valid or obligatory for any purpose, until the certificate
of authentication and registration hereon endorsed shall have been signed by the
Indenture Trustee or the Authenticating Agent.
This Series 1999A-2 Note shall be governed by, and construed and
interpreted in accordance with, the laws of the State of Ohio.
IN WITNESS WHEREOF, the Issuer has caused this Series 1999A-2
Note to be executed in its name and on its behalf by the facsimile signatures of
two Authorized Officers of the Issuer.
STUDENT LOAN FUNDING 1999-A TRUST
By Firstar Bank, National Association,
not in its individual capacity, but solely as co-owner
trustee of the Issuer on behalf of the Issuer
BY: [facsimile signature] BY: [facsimile signature]
--------------------- -------------------------
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65
[FORM OF CERTIFICATE OF AUTHENTICATION AND REGISTRATION]
This is one of the Series 1999A-2 Notes described in the
within mentioned Indenture, and has been registered this date:
Date of Registration and Authentication: _______________________
FIRSTAR BANK, NATIONAL ASSOCIATION,
as Indenture Trustee
By ________________________________
Authorized Signatory
[Form of Assignment for Transfer]
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _______________ (Tax Identification or Social Security Number:
_______________) the within Student Loan Senior Asset-Backed Callable Note,
Series 1999A-2 (Auction Rate), of Student Loan Funding 1999-A Trust, and hereby
irrevocably constitutes and appoints _______________ attorney to transfer said
Note on the registry books kept by the Indenture Trustee for that purpose with
full power of substitution in the premises.
Dated_______________ ______________________________
Signature
NOTE: The signature to the assignment must correspond to the
name as written on the face of this Note in every particular, without any
alteration or change whatsoever.
Signature Guarantee:______________________________
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EXHIBIT D
FORM OF SUBORDINATE NOTE
THE INTEREST ON THIS SERIES 1999B-1 NOTE IS NOT EXCLUDABLE FROM GROSS INCOME FOR
FEDERAL INCOME TAX PURPOSES.
Registered Registered
No. C-__ $__,000,000
STUDENT LOAN FUNDING 1999-A TRUST
STUDENT LOAN SENIOR ASSET-BACKED NOTE
SERIES 1999B-1
(LIBOR RATE)
Dated: ___________, 1999 CUSIP: ______________
Interest Rate: As Herein Provided Legal Final Maturity: ________________
Student Loan Funding 1999-A Trust, a common law (as opposed to
statutory) trust created under the laws of the State of Delaware (herein called
the "Issuer"), by Firstar Bank, National Association, a national banking
association duly organized and existing under the laws of the United States, not
in its individual capacity, but solely as co-owner trustee of the Issuer (the
"Co-Owner Trustee"), hereby acknowledges itself indebted and, for value
received, hereby promises to pay (but only out of the Trust Estate) to
CEDE & CO.
or registered assigns, on the Legal Final Maturity stated above (subject to
prior redemption referred to herein), the principal sum of
_______________________________ DOLLARS
in lawful money of the United States of America; and to pay interest thereon at
the Series Interest Rate applicable for each Interest Accrual Period on the
dates as provided herein (but only out of said Trust Estate) in like lawful
money.
This Series 1999B-1 Note is one of a duly authorized issue of
notes of the Issuer designated as "Student Loan Funding 1999-A Trust Student
Loan Subordinate Asset-Backed Notes, Series 1999B-1 (LIBOR Rate)" in the
aggregate principal amount of $_______________ (this series herein referred to
as the "Series 1999B-1 Notes"), issued (a) pursuant to a resolution duly adopted
by the board of directors of the Issuer authorizing the issuance of the Series
1999B-1 Notes and (b) under an Indenture of Trust, dated as of ________ 1, 1999
(the "Base Indenture"), and a Terms Supplement, dated as of even date with the
Base Indenture (the "Terms Supplement"), as such Base Indenture and Terms
Supplement is supplemented or amended from time to time (the "Indenture"), each
by and among the Issuer, Firstar Bank, National Association, as initial eligible
lender trustee on behalf of the Issuer (the "Initial Co-Owner Eligible Lender
Trustee" and together with any other eligible lender trustee, each an "Eligible
Lender Trustee"), and Firstar Bank, National Association, as indenture trustee
(the "Indenture Trustee"). The Series 1999B-1 Notes are issued simultaneously
with and on a basis subordinate to the Issuer's $___________ Student Loan Senior
Asset-Backed Notes, Series 1999A-1 (LIBOR Rate) (the "Series 1999A-1 Notes"),
and the Issuer's $__________ Student Loan Senior Asset-Backed Callable Notes,
Series 1999A-2 (Auction Rate) (the "Series 1999A-2 Notes", and together with the
Series 1999A-1 Notes, the "Series 1999A Notes", and collectively with the Series
1999B-1 Notes, the "Notes").
Reference is hereby made to the Indenture, a copy of which is on file
with the Indenture Trustee, and to all of the provisions thereof, to all of
which provisions the Holder of this Series 1999B-1 Note, by acceptance hereof,
D-1
67
hereby assents and agrees, for definitions of terms; the descriptions of and the
nature and extent of the security for the Series 1999B-1 Notes; the student loan
purchase program being financed by the issuance of the Series 1999B-1 Notes; the
revenues and other assets pledged (the "Trust Estate") to the payment of the
principal of and interest on the Series 1999B-1 Notes (subject to the prior
rights of the Indenture Trustee to any realization from the Indenture Trustee's
lien on and security interest in the Trust Estate for payment of its fees and
expenses, the fees and expenses of each Eligible Lender Trustee and for payment
of the principal of and interest on the Series 1998A Notes); the nature and
extent and manner of enforcement of the pledge; the conditions upon which the
Indenture may be amended or supplemented with or without the consent of the
Holders of the Series 1999B-1 Notes; the rights and remedies of the Holders of
the Directing Notes, including the limitations therein contained upon the right
of a Holder to institute any suit, action or proceeding in equity or at law with
respect hereto and thereto; the rights, duties and obligations of the Issuer,
each Eligible Lender Trustee and the Indenture Trustee thereunder; the terms and
provisions upon which the liens, pledges, charges, trusts, security interests,
assignments and covenants made therein may be discharged at or prior to the
maturity of this Series 1999B-1 Note, this Series 1999B-1 Note thereafter no
longer being secured by the Indenture or being deemed to be outstanding
thereunder; and for the other terms and provisions thereof. References in this
Series 1999A-1 Note to the name "Student Loan Funding 1999-A Trust" or to the
term "Issuer" shall mean the Co-Owner Trustee, not in its individual capacity,
but solely as Co-Owner Trustee of the Issuer.
Words and terms used as defined words and terms in this Series 1999B-1
Note and not otherwise defined herein shall have the meanings given them in the
Indenture.
The principal of and interest and Xxxxxxxxx Interest, if any, on the
Series 1999B-1 Notes are limited obligations of the Issuer payable only out of
the Trust Estate, as and to the extent set forth in the Indenture, and are
secured by a pledge of, lien on, security interest in and assignment of the
Trust Estate, subject to the provisions of the Indenture permitting the
application thereof for the purposes and on the terms and conditions set forth
in the Indenture.
THE INTEREST ACCRUAL PERIOD, THE APPLICABLE SERIES INTEREST RATE, THE
METHOD OF DETERMINING THE SERIES INTEREST RATE ON EACH OF THE SERIES 1999B-1
NOTES, THE DISTRIBUTION OF PRINCIPAL OF AND INTEREST AND CARRYOVER INTEREST, IF
ANY, ON THIS SERIES 1999B-1 NOTE AND THE REDEMPTION OF THIS SERIES 1999B-1 NOTE
WILL BE DETERMINED IN ACCORDANCE WITH THE TERMS, CONDITIONS AND PROVISIONS OF
THE INDENTURE, 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.
No covenant or agreement contained in this Series 1999B-1 Note or in
the Indenture shall be deemed to be a covenant or agreement of any director,
officer, member, agent or employee of the Issuer in his or her individual
capacity, and none of such directors, officers, agents or employees nor any
person executing this Series 1999B-1 Note on behalf of the Issuer shall be
liable personally on this Series 1999B-1 Note or be subject to any personal
liability or accountability by reason of the issuance of this Series 1999B-1
Note.
If an Event of Default occurs, the principal of and interest on all
Notes issued under the Indenture may be declared due and payable upon the
conditions and in the manner and with the effect provided in the Indenture. The
Indenture and the rights and obligations of the Issuer, each Eligible Lender
Trustee, the Indenture Trustee and the registered owner hereof may be modified
or amended in the manner and subject to the conditions set forth in the
Indenture.
Except when this Series 1999B-1 Note is held in a Book-entry System,
this Series 1999B-1 Note is transferable by the registered owner hereof or its
attorney duly authorized in writing at the principal corporate trust office of
the Indenture Trustee, upon surrender of this Series 1999B-1 Note, accompanied
by a duly executed instrument of transfer in the form set forth herein, with
signature guaranteed in a manner satisfactory to the Indenture Trustee subject
to such reasonable regulations as the Issuer or the Indenture Trustee may
prescribe, and upon payment of any tax, fee or other governmental charge
incident to such transfer. Upon any such transfer there shall be issued in the
name of the transferee a new fully registered Series 1999B-1 Note or Series
1999B-1 Notes of Authorized Denominations of the same aggregate principal amount
and date as this Series 1999B-1 Note. The person in whose name this Series
1999B-1 Note is registered shall be deemed the owner hereof for all purposes,
and
D-2
68
the Issuer, the Indenture Trustee and any other designated Authenticating
Agent shall not be affected by any notice to the contrary.
The Series 1999B-1 Notes are issuable only as fully registered notes in
Authorized Denominations. Except when this Series 1999B-1 Note is held in a
Book-entry System and subject to the limitations and upon payment of the
charges, if any, provided in the Indenture, Series 1999B-1 Notes may be
exchanged at said office of the Indenture Trustee for a like aggregate principal
amount of Series 1999B-1 Notes of the same date and series of other Authorized
Denominations.
In any case where the date fixed for the payment of principal of or
interest or Carryover Interest on this Series 1999B-1 Note shall not be a
Business Day, then payment of such principal or interest or Carryover 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 issuance of this Series 1999B-1 Note and the issue of
which it is one, have happened, exist and have been performed in regular and due
time, form and manner as required by law; and that this Series 1999B-1 Note and
the issue of which it is one do not exceed any limitations of indebtedness
prescribed by law or otherwise applicable to the Issuer.
This Series 1999B-1 Note shall not be entitled to any benefit under the
Indenture, or become valid or obligatory for any purpose, until the certificate
of authentication and registration hereon endorsed shall have been signed by the
Indenture Trustee or the Authenticating Agent.
This Series 1999B-1 Note shall be governed by, and construed and
interpreted in accordance with, the laws of the State of Ohio.
IN WITNESS WHEREOF, the Issuer has caused this Series 1999B-1 Note to
be executed in its name and on its behalf by the facsimile signatures of two
Authorized Officers of the Issuer.
STUDENT LOAN FUNDING 1999-A TRUST
By Firstar Bank, National Association,
not in its individual capacity, but solely as co-owner trustee of the Issuer
BY: [facsimile signature] BY: [facsimile signature]
---------------------- ----------------------
---------------------- ----------------------
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[FORM OF CERTIFICATE OF AUTHENTICATION AND REGISTRATION]
This is one of the Series 1999B-1 Notes described in the
within mentioned Indenture, and has been registered this date:
Date of Registration and Authentication: _______________________
FIRSTAR BANK, NATIONAL ASSOCIATION,
as Indenture Trustee
By ______________________________
Authorized Signatory
[Form of Assignment for Transfer]
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _______________ (Tax Identification or Social Security Number:
_______________) the within Student Loan Subordinate Asset-Backed Note, Series
1999B-1 (LIBOR Rate), of Student Loan Funding 1999-A Trust, and hereby
irrevocably constitutes and appoints _______________ attorney to transfer said
Note on the registry books kept by the Indenture Trustee for that purpose with
full power of substitution in the premises.
Dated_______________ ______________________________
Signature
NOTE: The signature to the assignment must correspond to the
name as written on the face of this Note in every particular, without any
alteration or change whatsoever.
Signature Guarantee:______________________________
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EXHIBIT E
[FORM OF]
INSTRUCTIONS FOR
PAYMENT OF INTEREST
Firstar Bank, National Association
000 Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000
Attention: Corporate Trust Services
The undersigned is the registered owner of Student Loan
Asset-Backed Note(s), Series 1999[A/B-_], of Student Loan Funding 1999-A Trust
No(s). _____________ (the "Note(s)"), in an aggregate principal amount of
$1,000,000 or more. Until further notice or until the undersigned ceases to be
the registered owner of the Note(s), you are instructed to make payment of all
interest due on the Note(s) on any date due by depositing or wiring immediately
available funds on such date to the credit of the undersigned's Account No.
___________ with __________________.
Name___________________________________
Date:____________________ ____________________________________
Authorized Signature
Signature Guaranteed:
_____________________________________
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EXHIBIT F
STUDENT LOAN FUNDING 1999-A TRUST
STUDENT LOAN SENIOR ASSET-BACKED NOTES,
SERIES 1999A-2
NOTICE OF PAYMENT DEFAULT
NOTICE IS HEREBY GIVEN that a Payment Default has occurred and
is continuing with respect to the Notes identified above. The next Auction for
the Series 1999A-2 Notes will not be held. The Auction Rate for the Series
1999A-2 Notes for the next succeeding Interest Accrual Period shall be the
Non-Payment Rate.
FIRSTAR BANK, NATIONAL ASSOCIATION,
as Indenture Trustee
Dated: ____________________ By: ____________________________
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EXHIBIT G
STUDENT LOAN FUNDING 1999-A TRUST
STUDENT LOAN SENIOR ASSET-BACKED NOTES,
SERIES 1999A-2
NOTICE OF CURE OF PAYMENT DEFAULT
NOTICE IS HEREBY GIVEN that a Payment Default with respect to
the Notes identified above has been waived or cured. The next Distribution Date
for the Series 1999A-2 Notes is _____________________ and the next Interest
Determination Date is ___________________.
FIRSTAR BANK, NATIONAL ASSOCIATION,
as Indenture Trustee
Dated:_____________________ By: ___________________________
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EXHIBIT H
STUDENT LOAN FUNDING 1999-A TRUST
STUDENT LOAN SENIOR ASSET-BACKED NOTES,
SERIES 1999A-2
NOTICE OF PROPOSED AUCTION PERIOD ADJUSTMENT
Notice is hereby given that Student Loan Funding 1999-A Trust,
by Firstar Bank, National Association, not in its individual capacity, but
solely as the co-owner of the Student Loan Funding 1999-A Trust on behalf of the
Trust, proposes to change with respect to the captioned Notes the length of the
Auction Period pursuant to the Indenture as follows:
1. The change shall take effect on __________________, the
Distribution 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 Indenture 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 Calculation
Agent, as required by the Indenture authorizing the change in length of one or
more Auction Periods and (B) Sufficient Clearing Bids exist on the Interest
Determination 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 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.
4. It is hereby represented, upon advice of the Auction Agent
for the Notes described herein, that there were Sufficient Clearing Bids for
such Notes at the Auction immediately preceding the date of this Notice.
5. Terms not defined in this Notice shall have the meanings
set forth in the Indenture entered into in connection with the captioned Notes.
STUDENT LOAN FUNDING 1999-A TRUST,
By Firstar Bank, National
Association, not in its
individual capacity, but solely
as the co-owner trustee of the
Student Loan Funding 1999-A
Trust on behalf of the Trust
H-1
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Date:______________________ By:___________________________
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EXHIBIT I
STUDENT LOAN FUNDING 1999-A TRUST
STUDENT LOAN SENIOR ASSET-BACKED NOTES,
SERIES 1999A-2
NOTICE ESTABLISHING AUCTION PERIOD ADJUSTMENT
Notice is hereby given that Student Loan Funding 1999-A Trust,
by Firstar Bank, National Association, not in its individual capacity, but
solely as the co-owner trustee of the Student Loan Funding 1999-A Trust on
behalf of the Trust, hereby establishes with respect to the captioned Notes new
lengths for one or more Auction Periods pursuant to the Indenture:
1. The change shall take effect on _______________, the
Distribution 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 Distribution 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
commencing on the Effective Date the Distribution 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
2.03.2.7 of the Indenture.
4. For all purposes of the Indenture, from and after the
Effective Date, "Rate Adjustment Date" shall mean the Effective Date, and
thereafter _________ of each __________, if each such __________ is a Business
Day; provided, however, that if each such __________ is not a Business Day, then
the first Business Day next succeeding such ____________.
5. 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 Indenture and our prior notice dated
________________ regarding the proposed change.
6. Terms not defined in this Notice shall have the meanings
set forth in the Indenture relating to the captioned Notes.
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STUDENT LOAN FUNDING 1999-A TRUST,
By Firstar Bank, National
Association, not in its
individual capacity, but solely
as the co-owner trustee of the
Student Loan Funding 1999-A
Trust on behalf of the Trust
Date:______________________ By:___________________________
I-2
77
EXHIBIT J
STUDENT LOAN FUNDING 1999-A TRUST
STUDENT LOAN SENIOR ASSET-BACKED NOTES,
SERIES 1999A-2
NOTICE OF CHANGE IN INTEREST DETERMINATION DATE
Notice is hereby given by _____________________, as
Calculation Agent for the captioned Notes, that with respect to the Series
1999A-2 Notes, the Interest Determination Date is hereby changed as follows:
1. The definition of "Interest Determination Date" shall be
deemed amended by substituting "________________ (number) Business Day" as set
forth in the definition thereof in the Indenture and by substituting
"___________________ (number) Business Days" for "two Business Days" in
subsection (d) thereof.
2. This change shall take effect on ________________ which
shall be the Auction Date for the Auction Period commencing on
___________________.
3. The Interest Determination Date for the Series 1999A-2
Notes shall be subject to further change hereafter as provided in the Indenture.
4. Terms not defined in this Notice shall have the meanings
set forth in the Indenture relating to the captioned Notes.
_______________________________,
as Calculation Agent
Dated:____________________ By: ___________________________
J-1
78
EXHIBIT K
STUDENT LOAN FUNDING 1999-A TRUST
STUDENT LOAN SENIOR ASSET-BACKED NOTES,
SERIES 1999A-2
NOTICE OF PROPOSED AUCTION PERIOD CONVERSION
Notice is hereby given that STUDENT LOAN FUNDING 1999-A TRUST, by
Firstar Bank, National Association, not in its individual capacity, but solely
in its capacity as the co-owner trustee of the Student Loan Funding 1999-A Trust
on behalf of the Trust, proposes to change for the captioned Notes the length of
one or more Auction Periods pursuant to an Auction Period Conversion under the
Indenture as follows:
1. The change shall take effect on __________________, the
Distribution Date for the current Auction Period and the date of commencement of
the next Auction Period (the "Auction Period Conversion Date").
2. The Auction Period Conversion in Paragraph 1 shall take
place only if the provisions set forth in Sections 2.03.2.9 and 2.03.2.10 of the
Indenture are fully satisfied. In connection with such proposed Auction Period
Conversion, the Auction Agent shall not conduct an Auction on the Interest
Determination Date immediately preceding the Auction Period Conversion Date.
3. Regardless of whether the provisions in Sections 2.03.2.9
and 2.03.2.10 of the Indenture are met or are not met, the Auction Agent shall
resume conducting an Auction on the Interest Determination Date that immediately
succeeds such Auction Period Conversion Date.
4. Terms not defined in this Notice shall have the meanings
set forth in the Indenture entered into in connection with the captioned Notes.
STUDENT LOAN FUNDING 1999-A TRUST,
By Firstar Bank, National
Association, not in its
individual capacity, but solely
as the co-owner trustee of the
Student Loan Funding 1999-A
Trust on behalf of the Trust
Date:______________________ By:___________________________
K-1
79
EXHIBIT L
STUDENT LOAN FUNDING 1999-A TRUST
STUDENT LOAN SENIOR ASSET-BACKED NOTES,
SERIES 1999A-2
NOTICE ESTABLISHING AUCTION PERIOD CONVERSION
Notice is hereby given that STUDENT LOAN FUNDING 1999-A TRUST,
by Firstar Bank, National Association, not in its individual capacity, but
solely in its capacity as the co-owner trustee of the Student Loan Funding
1999-A Trust on behalf of the Trust, hereby establishes for the captioned Notes
new lengths for one or more Auction Periods pursuant an Auction Period
Conversion under the Indenture:
1. The Auction Period Conversion is effective _______________,
being the Distribution Date for the Auction Period immediately preceding the
date of commencement of the Auction Period with respect to which the Auction
Period Conversion is initially effective (the "Effective Date").
2. Terms and provisions applicable to the new Auction Periods
established pursuant to the Auction Period Conversion are set forth in the
Supplemental Indenture attached hereto as Attachment 1 and effective on the
Effective Date.
3. Attached hereto as Attachment 2 is the written evidence
required by Section 2.03.2.9 of the Indenture to the effect that the Auction
Period Conversion described herein will not adversely affect the ratings on the
obligations described in such Section 2.03.2.9.
4. Terms not defined in this Notice shall have the meanings
set forth in the Indenture relating to the captioned Notes.
STUDENT LOAN FUNDING 1999-A TRUST,
By Firstar Bank, National
Association, not in its
individual capacity, but solely
as the co-owner trustee of the
Student Loan Funding 1999-A
Trust on behalf of the Trust
Date:______________________ By:___________________________
L-1
