EXHIBIT 10.122
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BROKER-DEALER AGREEMENT
among
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Auction Agent
and
X.X. XXXXXX SECURITIES INC.
and
UFS SECURITIES, L.L.C.,
as Co-Broker-Dealers
Relating to:
EMT Corp.
$98,000,000--2000-I Senior Series A-16
$98,000,000--2000-I Senior Series A-17
$98,000,000--2000-I Senior Series A-18
$98,000,000--2000-I Senior Series A-19
$98,000,000--2000-I Senior Series A-20
$48,000,000--2000-I Senior Subordinate Series B-3
Dated as of October 15, 2002
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND RULES OF CONSTRUCTION
Section 1.01. Terms Defined by Reference to the Trust Agreement......................................... 1
Section 1.02. Terms Defined Herein...................................................................... 2
Section 1.03. Rules of Construction..................................................................... 2
ARTICLE II
THE AUCTION
Section 2.01. Purpose: Incorporation by Reference of Auction Procedures and Settlement Procedures....... 3
Section 2.02. Preparation for Each Auction.............................................................. 3
Section 2.03. Auction Schedule: Method of Submission of Orders.......................................... 4
Section 2.04. Notices................................................................................... 5
Section 2.05. Service Charge To Be Paid to BD........................................................... 6
Section 2.06. Settlement................................................................................ 7
ARTICLE III
THE AUCTION AGENT
Section 3.01. Duties and Responsibilities............................................................... 7
Section 3.02. Rights of the Auction Agent............................................................... 8
Section 3.03. The Auction Agent's Disclaimer............................................................ 8
ARTICLE IV
MISCELLANEOUS
Section 4.01. Termination............................................................................... 8
Section 4.02. Participant in Securities Depository...................................................... 8
Section 4.03. Communications............................................................................ 8
Section 4.04. Entire Agreement.......................................................................... 10
Section 4.05. Benefits.................................................................................. 10
Section 4.06. Amendment; Waiver......................................................................... 10
Section 4.07. Successors and Assigns.................................................................... 10
Section 4.08. Severability.............................................................................. 10
Section 4.09. Execution in Counterparts................................................................. 10
ARTICLE V
GOVERNING LAW.............................................................................................. 11
EXHIBIT A SETTLEMENT PROCEDURES
EXHIBIT B ORDER FORM
EXHIBIT C TRANSFER FORM
EXHIBIT D NOTICE OF A FAILURE TO DELIVER
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BROKER-DEALER AGREEMENT
BROKER-DEALER AGREEMENT (the "Agreement") dated as of October 15, 2002
between DEUTSCHE BANK TRUST COMPANY AMERICAS (formerly known as Bankers Trust
Company) (together with its successors and assigns, the "Auction Agent"),
appointed as such pursuant to the provisions of a Trust Agreement dated as of
May 15, 1998 (the "Trust Agreement") as amended and supplemented to June 1,
2000, by the Fifth Terms Supplement dated as of June 1, 2000 (the "Fifth Terms
Supplement" and the Trust Agreement, as so amended and supplemented, referred to
herein as the "Trust Agreement") between Zions First National Bank (successor to
Bank One Trust Company, N.A.) (the "Trustee"), as trustee and EMT Corp. (the
"Issuer") pursuant to authority granted to it in the Auction Agency Agreement
between the Trustee and the Auction Agent hereinafter defined, X.X. XXXXXX
SECURITIES INC. and UFS SECURITIES, L.L.C. (together with their successors and
assigns hereinafter collectively referred to as "BD").
WHEREAS, the Issuer has issued $636,000,000 aggregate principal amount
of its Student Loan Asset-Backed Auction Rate Notes consisting of
$98,000,000--2000-I Senior Series A-16, $98,000,000--2000-I Senior Series A-17,
$98,000,000--2000-I Senior Series A-18, $98,000,000--2000-I Senior Series A-19,
$98,000,000--2000-I Senior Series A-20, $49,000,000--2000-I Senior Series A-21,
$49,000,000--2000-I Senior Series A-22 and $48,000,000--2000-I Senior
Subordinate Series B-3, of which the BD will act as Broker-Dealer with respect
to the Series X-00, X-00, X-00, X-00, X-00 xxx X-0 Notes (such Series X-00,
X-00, X-00, X-00, X-00 xxx X-0 Notes hereinafter referred to as the "Auction
Rate Notes" or the "ARN"). The ARN have be issued pursuant to the Trust
Agreement; and
WHEREAS, the Trust Agreement provides that the Series Interest Rate on
each Series of the ARN for each Auction Period after the Series Initial Period
shall be, except as otherwise provided in the Trust Agreement, equal to the
lesser of (a) the Net Loan Rate in effect for such Series Interest Period, and
(b) the Auction Rate that the Auction Agent advises has resulted on the Auction
Date from the implementation of the Auction Procedures. Pursuant to Section 2.9
of the Auction Agency Agreement, the Auction Agent has entered into this
Agreement; and
WHEREAS, the Auction Procedures require the participation of one or
more Broker-Dealers;
NOW, THEREFORE, in consideration of the mutual covenants contained
herein an other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the Auction Agent and BD agree as follows:
ARTICLE I
DEFINITIONS AND RULES OF CONSTRUCTION
SECTION 1.01. TERMS DEFINED BY REFERENCE TO THE TRUST AGREEMENT.
Capitalized terms no defined herein shall have the respective meanings specified
in or pursuant to the Trust Agreement and the Auction Agency Agreement.
SECTION 1.02. TERMS DEFINED HEREIN. As used herein and in the
Settlement Procedures (as defined below), the following terms shall have the
following meanings, unless the context otherwise requires:
"Auction" has the meaning specified in Section 2.01 hereof.
"Auction Agency Agreement" means the Auction Agency Agreement dated of
June 1, 2000 between the Trustee and the Auction Agent relating to the ARN.
"Auction Procedures" means the Auction Procedures that are set forth
Article II of the Fifth Terms Supplement.
"Authorized Officer" means, with respect to the Auction Agent, each
Managing Director, Vice President, Assistant Vice President and Associate of the
Auction Agent and every other officer of the Auction Agent assigned to its
Corporate Trust and Agency Group and every other officer or employee of the
Auction Agent designated as an "Authorized Officer" for purposes of this
Agreement in a communication to BD.
"BD Officer" means each officer or employee of BD designated as a "BD
Officer" for purposes of this Agreement in a communication to the Auction Agent.
"Broker-Dealer Agreement" means this Agreement and any substantially
similar agreement between the Auction Agent and a Broker-Dealer.
"Settlement Procedures" means the Settlement Procedures attached hereto
as Exhibit A.
SECTION 1.03. RULES OF CONSTRUCTION. Unless the context or use
indicates another or different meaning or intent, the following rules shall
apply to the construction of this Agreement:
(a) Words importing the singular number shall include the
plural number and vice versa.
(b) The captions and headings herein are solely for
convenience of reference and shall not constitute a part of this
Agreement nor shall they affect its meaning, construction or effect.
(c) The words "hereof," "herein," "hereto" and other
words of similar import refer to this Agreement as a whole.
(d) In case of any conflict between the provisions of
this Agreement and the provisions of the Fifth Terms Supplement, the
Fifth Terms Supplement shall control.
(e) All references herein to a particular time of day
shall be to New York City time.
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ARTICLE II
THE AUCTION
SECTION 2.01. PURPOSE: INCORPORATION BY REFERENCE OF AUCTION PROCEDURES
AND SETTLEMENT PROCEDURES.
(a) On each Auction Date, the provisions of the Auction
Procedures will be followed by the Auction Agent for the purpose of
determining the Series Interest Rate for the next Auction Period. Each
periodic operation of such procedures is hereinafter referred to as an
"Auction."
(b) All of the provisions contained in the Auction
Procedures and the Settlement Procedures are incorporated herein by
reference in their entirety and shall be deemed to be a part of this
Agreement to the same extent as if such provisions were fully set forth
herein.
(c) BD agrees to act as, and assumes the obligations of
and limitations and restrictions placed upon, a Broker-Dealer under
this Agreement. BD understands that other persons meeting the
requirements specified in the definition of "Broker-Dealer" contained
in Section 2.5.6 of the Fifth Terms Supplement may execute
Broker-Dealer Agreements and participate as Broker-Dealers in Auctions.
(d) BD and other Broker-Dealers may participate in
Auctions for their own accounts. However, the Issuer may, by notice to
BD and all other Broker-Dealers given no later than 3:00 p.m. on the
Business Day next preceding an Auction, prohibit all (but not less than
all) Broker-Dealers from submitting Bids for their own account in such
Auction and, if so specified in such notice, all future Auctions until
such notice is withdrawn, but the Broker-Dealers may continue to submit
Hold and Sell orders for their own accounts and Bids on behalf of
customers. The Auction Agent shall have no duty or liability with
respect to enforcement of this subsection.
SECTION 2.02. PREPARATION FOR EACH AUCTION.
(a) Not later than 9:30 a.m. on each Auction Date for a
Series of the ARN, the Auction Agent shall advise BD by telephone of
the Applicable LIBOR Rate and the United States Treasury Security Rate
and not later than 9:30 a.m. on each Auction Date for the ARN, the
Auction Agent shall advise BD of the Net Loan Rate, the All Hold Rate
and the Maximum Auction Rate.
(b) In the event that the Auction Date for any Auction
shall be changed after the Auction Agent has given the notice referred
to in paragraph (a)(vi) of the Settlement Procedures, the Auction
Agent, by such means as the Auction Agent deems practicable, shall give
notice of such change to BD not later than the earlier of 9:15 a.m. on
the new Auction Date and 9:15 a.m. on the old Auction Date. Thereafter,
BD shall promptly notify customers of BD that BD believes are Existing
Note Holders of such change in the Auction Date.
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(c) The Auction Agent from time to time may request that
BD provide it with a list of the respective customers BD believes are
Existing Note Holders of a Series of the ARN and the aggregate
principal amounts of ARN of such Series specifically owned by each such
customer. BD shall comply with any such request, and the Auction Agent
shall keep confidential any such information, including information
received as to the identity of Bidders in any Auction, and shall not
disclose any such information so provided to any person other than the
Trustee, the Issuer and BD; provided that the Auction Agent reserves
the right to disclose any such information if it is advised by its
counsel that such failure would be unlawful.
SECTION 2.03. AUCTION SCHEDULE: METHOD OF SUBMISSION OF ORDERS.
(a) The Auction Agent shall conduct Auctions for each
Series of the ARN is accordance with the schedule set forth below. Such
schedule may be changed at any time by the Auction Agent with consent
of the Trustee, at the direction of the Issuer, which consent shall not
be unreasonably withheld or delayed. The Auction Agent shall give
written notice of any such change to BD. Such notice shall be received
prior to the close of business on the Business Day next preceding the
first Auction Date on which any such change shall be effective.
TIME EVENT
By 9:00 a.m. Market Agent provides Auction Agent with the
Applicable LIBOR Rate and the United States
Treasury Security Rate.
By 9:30 a.m. Auction Agent notifies the Trustee and the
Broker-Dealers of the Net Loan Rate, the All Hold
Rate and the Maximum Auction Rate and the
Applicable LIBOR Rate and the United States
Treasury Security Rate used in determining such
rates, as set forth in Section 2.02(a) hereof.
9:30 a.m.-1:00 p.m. Auction Agent assembles information communicated
to it by Broker-Dealers as provided in Article II
of the Fifth Terms Supplement. Submission Deadline
is 1:00 p.m.
Not earlier than 1:00 p.m. Auction Agent makes determinations pursuant to
Article II of the Fifth Terms Supplement.
Submitted Bids and Submitted Sell Orders are
accepted and rejected in whole or in part and
principal amounts of ARN are allocated as provided
in Article II of the Fifth Terms Supplement.
Not later than 3:00 p.m. Auction Agent advises the Trustee of the Series
Interest Rate for the next Auction Period and of
results of the Auction as provided in Article II
of the Fifth Terms Supplement. Auction Agent gives
notice of Auction results as set forth in Section
2.04(a) hereof.
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(b) BD agrees to maintain a list of Potential Note
Holders and to contact the Potential Note Holders on such list on or
prior to each Auction Date for the purpose of participating in the
Auction on such Auction Date.
(c) BD shall submit Orders to the Auction Agent in
writing in substantially the form attached hereto as Exhibit B. BD
shall submit a separate Order to the Auction Agent for each Potential
Note Holder or Existing Note Holder on whose behalf BD is submitting an
Order and shall not net or aggregate the Orders of Potential Note
Holders or Existing Note Holders on whose behalf BD is submitting
Orders.
(d) BD shall deliver to the Auction Agent (i) a written
notice, substantially in the form attached hereto as Exhibit C, of
transfers of ARN, made through BD by an Existing Note Holder to another
person other than pursuant to an Auction; and (ii) a written notice, in
substantially the form attached hereto as Exhibit D, of the failure of
any ARN to be transferred to or by any person that purchased or sold
ARN through BD pursuant to an Auction. The Auction Agent is not
required to give effect to any notice with respect to an Auction unless
it is received by the Auction Agent by 3:00 p.m. on the Business Day
next preceding the applicable Auction Date.
(e) BD agrees to handle its customers' Orders in
accordance with its duties under applicable securities laws and rules.
(f) [Reserved.]
(g) Prior to or concurrently with the execution and
delivery of the Auction Agent Agreement, BD shall provide the Auction
Agent with a list of the Existing Note Holders of the ARN who have
agreed to purchase such ARN through BD, if any. In order to verify the
accuracy and authenticity of the lists of Existing Note Holders so
provided, the Auction Agent may confirm those lists of the Existing
Note Holders to the respective Broker-Dealers who provided the original
lists within 10 Business Days of the Auction Agent's receipt thereof.
(h) BD and other Broker-Dealers may submit Orders in
Auctions for their own accounts; provided, however, that any
Broker-Dealer that is an affiliate of the Issuer must submit at the
next Auction therefor a Sell Order covering all ARN held for its own
account. The Auction Agent shall have no duty or liability with respect
to monitoring or enforcing the requirements of this Section 2.03(h).
SECTION 2.04. NOTICES.
(a) On each Auction Date, the Auction Agent shall notify
BD by telephone of the results of the Auction as set forth in paragraph
(a) of the Settlement Procedures. By approximately 10:30 a.m. on the
Business Day next succeeding such Auction Date, the Auction Agent shall
notify BD in writing, if previously so requested, of the disposition of
all Orders submitted by BD in the Auction held on such Auction Date.
(b) BD shall notify each Existing Note Holder or
Potential Note Holder on whose behalf BD has submitted an Order as set
forth in paragraph (b) of the Settlement
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Procedures and take such other action as is required of BD pursuant to
the Settlement Procedures.
(c) The Auction Agent shall deliver to BD after receipt
all notices and certificates which the Auction Agent is required to
deliver to BD pursuant to Section 2 of the Auction Agency Agreement at
the times and in the manner set forth in the Auction Agency Agreement.
SECTION 2.05. SERVICE CHARGE TO BE PAID TO BD.
(a) On the first Business Day in the month of December
2002 and, thereafter, on the first Business Day of each month during
the term of this Agreement, the Auction Agent shall pay to BD from
moneys received from the Trustee pursuant to Section 3.5(b) of the
Auction Agency Agreement, an amount for each Series of ARN equal to the
product of (i) a fraction, the numerator of which is the number of days
in the preceding month and the denominator of which is 365/366 days, as
applicable; times (ii) the Broker-Dealer Fee Rate; times (iii) the sum,
on the Auction Date for such Series of ARN during such preceding month
of (A) the aggregate principal amount of the ARN placed by BD in such
Auction that were (1) the subject of Submitted Bids of Existing Note
Holders submitted by BD and continued to be held as a result of such
submission, and (2) the subject of Submitted Bids of Potential Note
Holders submitted by BD and purchased as a result of such submission;
(B) the aggregate principal amount of the ARN subject to valid Hold
Orders (determined in accordance with the Fifth Terms Supplement)
submitted to the Auction Agent by BD; and (C) the principal amount of
the ARN deemed to be subject to Hold Orders by Existing Note Holders
pursuant to the Fifth Terms Supplement that were acquired by such
Existing Note Holders through BD; provided, however, with respect to
Notes with an Auction Period of more than 35 days, the Broker-Dealers
shall be entitled to payment on the first Business Day of the month
immediately succeeding each Auction Date for such Series and the
numerator referred to in Section 2.05(a)(i) shall be the number of days
in such Auction Period or the Series Initial Period, as applicable. For
purposes of clause (iii)(C) of the foregoing sentence, if any Existing
Note Holder who acquired ARN through BD transfers those ARN to another
person other than pursuant to an Auction, then the Broker-Dealer for
the ARN so transferred shall continue to be BD; provided, however, that
if the transfer was effected by, or if the transferee is, a
Broker-Dealer other than BD, then such Broker-Dealer shall be the
Broker-Dealer for such ARN. If for any reason an Auction is not held on
an Auction Date, there shall be no Broker-Dealer Fee applicable with
respect to such Auction Date. The Broker-Dealer Fee shall be payable
solely out of amounts received by the Auction Agent pursuant to the
Fifth Terms Supplement.
(b) The Broker-Dealer Fee Rate shall be the prevailing
rate received by broker-dealers for rendering comparable services to
others. The Auction Agent shall advise the Trustee and the Issuer, at
their request, at least annually of such then current prevailing rate.
If the then current Broker-Dealer Fee Rate is not equal to the
prevailing rate, the Trustee, at the direction of the Issuer, shall
change the Broker-Dealer Fee Rate pursuant to the terms of the Auction
Agency Agreement and shall notify the Auction Agent and BD thereof. Any
change in the Broker-Dealer Fee Rate shall be effective on
6
the Auction Date next succeeding such change. The initial Broker-Dealer
Fee Rate shall be 0.25% per annum.
SECTION 2.06. SETTLEMENT.
(a) If any Existing Note Holder on whose behalf BD has
submitted a Bid or Sell Order for ARN that was accepted in whole or in
part fails to instruct its Participant to deliver the ARN subject to
such Bid or Sell Order against payment therefor, BD shall instruct such
Participant to deliver such ARN against payment therefor and BD may
deliver to the Potential Note Holder on whose behalf BD submitted a Bid
that was accepted in whole or in part a principal amount of the ARN
that is less than the principal amount of the ARN specified in such Bid
to be purchased by such Potential Note Holder. Notwithstanding the
foregoing terms of this Section 2.06(a), any delivery or non-delivery
of ARN which represents any departure from the results of an Auction,
as determined by the Auction Agent, shall be of no effect unless and
until the Auction Agent shall have been notified of such delivery or
non-delivery in accordance with the terms of Section 2.03(d) hereof.
The Auction Agent shall have no duty or liability with respect to
monitoring or enforcing requirements of this Section 2.06(a).
(b) None of the Auction Agent, the Trustee or the Issuer
shall have any responsibility or liability with respect to the failure
of an Existing Note Holder, a Potential Note Holder or a Participant or
any of them to deliver ARN or to pay for ARN sold or purchased pursuant
to the Auction Procedures or otherwise. The Auction Agent shall have no
responsibility for any adjustment to fees paid pursuant to Section 2.05
hereof as a result of any failure described in this Section 2.06(b).
ARTICLE III
THE AUCTION AGENT
SECTION 3.01. DUTIES AND RESPONSIBILITIES.
(a) The Auction Agent is acting solely as agent for the
Trustee hereunder and has no duties to any other person and owes no
fiduciary duties to any person by reason of this Agreement.
(b) The Auction Agent undertakes to perform such duties
and only such duties as are specifically set forth in this Agreement,
and no implied covenants or obligations shall be read into this
Agreement against the Auction Agent.
(c) In the absence of bad faith or negligence on its
part, the Auction Agent shall not be liable for any action taken,
suffered, or omitted or for any error of judgment made by it in the
performance of its duties under this Agreement. The Auction Agent shall
not be liable for any error of judgment made in good faith unless the
Auction Agent shall have been negligent in ascertaining the pertinent
facts.
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SECTION 3.02. RIGHTS OF THE AUCTION AGENT.
(a) The Auction Agent may conclusively rely and shall be
protected in acting or refraining from acting upon any communication
authorized by this Agreement and upon any written instruction, notice,
request, direction, consent, report, certificate or other instrument,
paper or document believed by it to be genuine. The Auction Agent shall
not be liable for acting upon any telephone communication authorized by
this Agreement which the Auction Agent believes in good faith to have
been given by the Trustee or by a Broker-Dealer or by their designated
agents or representatives. The Auction Agent may record telephone
communications with the Broker-Dealers.
(b) The Auction Agent may consult with counsel of its own
choice, and the advice of such counsel shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in reliance thereon.
(c) The Auction Agent shall not be required to advance,
expend or risk its own funds or otherwise incur or become exposed to
financial liability in the performance of its duties hereunder.
(d) The Auction Agent may perform its duties and exercise
its rights hereunder either directly or by or through agents or
attorneys and shall not be responsible for any misconduct or negligence
on the part of any agent or attorney appointed by it with due care
hereunder.
SECTION 3.03. THE AUCTION AGENT'S DISCLAIMER. The Auction Agent makes
no representation as to the correctness of the recitals in, or the validity or
adequacy of, this Broker-Dealer Agreement, the Auction Agency Agreement or the
Bonds.
ARTICLE IV
MISCELLANEOUS
SECTION 4.01. TERMINATION. Any party may terminate this Agreement at
any time upon five days' prior notice to the other party. This Agreement shall
automatically terminate upon the delivery of certificates representing the ARN
pursuant to Article II of the Trust Agreement or upon termination of the Auction
Agency Agreement.
SECTION 4.02. PARTICIPANT IN SECURITIES DEPOSITORY. Either (a) BD is,
and shall remain for the term of this Agreement, a member of, or Participant in,
the Securities Depository; or (b) BD may designate a Participant to act on BD's
behalf for purposes of this Agreement. If BD wishes to designate a different
Participant to act on its behalf, BD shall give the Auction Agent at least two
Business Days' prior notice thereof.
SECTION 4.03. COMMUNICATIONS. Except for (a) communications authorized
to be made by telephone pursuant to this Agreement or the Auction Procedures;
and (b) communications in connection with the Auctions (other than those
expressly required to be in writing), all notices, requests and other
communications to any party hereunder shall be in writing (including
8
facsimile or similar writing) and shall be given to such party, addressed to it,
at its address or facsimile number set forth below:
If to BD: X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxx X. X'Xxxxxx
If to BD:. UFS Securities, L.L.C.
0000 Xxxxx 00xx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxx X. Xxxxx
If to the Auction Agent: Deutsche Bank Trust Company Americas
000 Xxxxx Xxx, 0xx Xxxxx
Xxxxxx Xxxx, Xxx Xxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Corporate Trust & Agency
Services
If to the Issuer: EMT Corp.
c/o Nelnet, Inc.
000 Xxxxx 00xx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Treasurer
with a copy to: EMT Corp.
0000 Xxxxxxxxx Xxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxxxxx, Xxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
or such other address or facsimile number as such party may hereafter specify
for such purpose by notice to the other party. Each such notice, request or
communication shall be effective when delivered at the address specified herein.
Communications shall be given on behalf of BD by a BD Officer and on behalf of
the Auction Agent by an Authorized Officer. BD may record telephone
communications with the Auction Agent.
SECTION 4.04. ENTIRE AGREEMENT. This Agreement contains the entire
agreement between the parties relating to the subject matter hereof, and there
are no other representations,
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endorsements, promises, agreements or understandings, oral, written or inferred,
between the parties relating to the subject matter hereof.
SECTION 4.05. BENEFITS. Nothing in this Agreement, express or implied,
shall give to any person, other than the Trustee, the Auction Agent and BD and
their respective successors and assigns, any benefit of any legal or equitable
right, remedy or claim under this Agreement.
SECTION 4.06. AMENDMENT; WAIVER.
(a) This Agreement shall not be deemed or construed to be
modified, amended, rescinded, cancelled or waived, in whole or in part,
except by a written instrument signed by a duly authorized
representative of each party hereto. The provisions herein regarding
auction procedures may be amended from time to time to conform to
industry or market practices solely upon the written consent of the
parties hereto and upon written notice of such amendment to the
affected Holders of such ARN and no prior written consent of any such
Holder shall be required in connection with such amendment.
(b) Failure of either party to this Agreement to exercise
any right or remedy hereunder in the event of a breach of this
Agreement by the other party shall not constitute a waiver of any such
right or remedy with respect to any subsequent breach.
SECTION 4.07. SUCCESSORS AND ASSIGNS. This Agreement shall be binding
upon, inure to the benefit of, and be enforceable by, the respective successors
and permitted assigns of each of BD and the Auction Agent. This Agreement may
not be assigned by either party hereto absent the prior written consent of the
other party; provided, however, that this Agreement may be assigned by the
Auction Agent to a successor Auction Agent selected by the Trustee at the
direction of the Issuer without the consent of BD.
SECTION 4.08. SEVERABILITY. If any clause, provision or section of this
Agreement shall be ruled invalid or unenforceable by any court of competent
jurisdiction, the invalidity or unenforceability of such clause, provision or
section shall not affect any remaining clause, provision or section hereof.
SECTION 4.09. EXECUTION IN COUNTERPARTS. This Agreement may be executed
in several counterparts, each of which shall be an original and all of which
shall constitute but one and the same instrument.
ARTICLE V
GOVERNING LAW
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their proper and duly authorized officers as of
the date first above written.
DEUTSCHE BANK TRUST COMPANY
AMERICAS, as Auction Agent
By /s/ Xxxxx Xxxxx
_________________________________
Name Xxxxx Xxxxx
_________________________________
Title VP
_________________________________
X.X. XXXXXX SECURITIES INC.
By /s/ Xxxxx X. X'Xxxxxx
_________________________________
Xxxxx X. X'Xxxxxx, Vice President
UFS SECURITIES, L.L.C.
By /s/ Xxxx X. Xxxxx
_________________________________
Xxxx X. Xxxxx, Vice President
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EXHIBIT A
SETTLEMENT PROCEDURES
Capitalized terms used herein shall have the respective meanings
specified in the Fifth Terms Supplement to the Trust Agreement, except that
"ARN" refers only to the covered Series of Notes specified at the beginning of
this Agreement.
(a) On each Auction Date, the Auction Agent is required
to notify by telephone the Broker-Dealers that participated in the
Auction held on such Auction Date and submitted an Order on behalf of
any Existing Note Holder or Potential Note Holder of:
(i) the Series Interest Rate fixed for the next
succeeding Auction Period;
(ii) whether Sufficient Clearing Bids existed for
the determination of the Auction Rate;
(iii) if such Broker-Dealer submitted a Bid or a
Sell Order on behalf of an Existing Note Holder, whether such
Bid or Sell Order was accepted or rejected, in whole or in
part, and the principal amount of ARN, if any, to be sold by
such Existing Note Holder;
(iv) if such Broker-Dealer submitted a Bid on
behalf of a Potential Note Holder, whether such Bid was
accepted or rejected, in whole or in part, and the principal
amount of ARN, if any, to be purchased by such Potential Note
Holder;
(v) if the aggregate principal amount of ARN to
be sold by all Existing Note Holders on whose behalf such
Broker-Dealer submitted Bids or Sell Orders is different from
the aggregate principal amount of ARN to be purchased by all
Potential Note Holders on whose behalf such Broker-Dealer
submitted a bid, the name or names of one or more other
Broker-Dealers (and the Agent Member, if any, of each such
other Broker-Dealer) and the principal amount of ARN to be (A)
purchased from one or more Existing Note Holders on whose
behalf such other Broker-Dealers submitted Bids or Sell
Orders, or (B) sold to one or more Potential Note Holders on
whose behalf such other Broker-Dealers submitted Bids; and
(vi) the scheduled Auction Date of the next
succeeding Auction.
(b) On each Auction Date, each Broker-Dealer that
submitted an Order on behalf of any Existing Note Holder or Potential
Note Holder is required to:
(i) advise each Existing Note Holder and
Potential Note Holder on whose behalf such Broker-Dealer
submitted a Bid or Sell Order whether such Bid or Sell Order
was accepted or rejected, in whole or in part;
(ii) instruct each Existing Note Holder on whose
behalf such Broker-Dealer submitted a Bid that was accepted,
in whole or in part, to instruct such Bidder's Agent Member,
to pay to such Broker-Dealer (or its Agent Member) through the
Securities Depository the amount necessary, including accrued
interest, if any, to purchase the principal amount of ARN to
be purchased pursuant to such Bid against receipt of such
principal amount of ARN;
(iii) instruct each Existing Note Holder on whose
behalf such Broker-Dealer submitted a Bid that was accepted,
in whole or in part, or a Sell Order that was accepted, in
whole or in part, to instruct such Bidder's Agent Member to
deliver to such Broker-Dealer (or its Agent Member) through
the Securities Depository the principal amount of ARN to be
sold pursuant to such Bid or Sell Order against payment
therefor;
(iv) advise each Existing Note Holder on whose
behalf such Broker-Dealer submitted an Order and each
Potential Note Holder on whose behalf such Broker-Dealer
submitted a Bid of the Series Interest Rate for the next
succeeding Auction Period;
(v) advise each Existing Note Holder on whose
behalf such Broker-Dealer submitted an Order of the scheduled
Auction Date of the next succeeding Auction; and
(vi) advise each Potential Note Holder on whose
behalf such Broker-Dealer submitted a Bid that was accepted,
in whole or in part, of the Auction Date of the next
succeeding Auction.
(c) On the basis of the information provided to it
pursuant to paragraph (a) above, each Broker-Dealer that submitted a
Bid or Sell Order is required to allocate any funds received by it
pursuant to paragraph (b)(ii) above, and any ARN received by it
pursuant to paragraph (b)(iii) above, among the Potential Note Holders,
if any, on whose behalf such Broker-Dealer submitted Bids, the Existing
Note Holders, if any, on whose behalf such Broker-Dealer submitted Bids
or Sell Orders, and any Broker-Dealers identified to it by the Auction
Agent pursuant to paragraph (a)(v) above.
(d) On the Business Day immediately succeeding the
Auction Date, the Securities Depository will execute the transactions
described above, debiting and crediting the accounts of the respective
Agent Members as necessary to effect the purchases and sales of ARN as
determined in the Auction.
A-2
EXHIBIT B
ORDER FORM
(Submit only one Order on this Order Form)
EMT Corp.
Student Loan Asset-Backed Auction Rate Notes
2000-I Senior Series A-16
2000-I Senior Series A-17
2000-I Senior Series A-18
2000-I Senior Series A-19
2000-I Senior Series A-20
2000-I Senior Subordinate Series B-3
("ARN")
$__________ 2000 __________ Series __________
EXHIBIT C
TRANSFER FORM
(To be used only for transfers made other than pursuant to an Auction)
EMT Corp.
Student Loan Asset-Backed Auction Rate Notes
2000-I Senior Series A-16
2000-I Senior Series A-17
2000-I Senior Series A-18
2000-I Senior Series A-19
2000-I Senior Series A-20
2000-I Senior Subordinate Series B-3
("ARN")
We are (check one):
_____ the Existing Note Holder named below; or
_____ the Broker-Dealer for such Existing Note Holder; or
_____ the Participant for such Existing Note Holder.
We hereby notify you that such Existing Note Holder has transferred
$__________* ARN to _________________.
[NAME OF EXISTING NOTE HOLDER]
By _____________________________________
Name ___________________________________
Title __________________________________
[NAME OF BROKER-DEALER]
By _____________________________________
Name ___________________________________
Title __________________________________
----------------
* ARN may only be transferred in units of $50,000.
[NAME OF PARTICIPANT]
By _____________________________________
Name ___________________________________
Title __________________________________
C-2
EXHIBIT D
NOTICE OF A FAILURE TO DELIVER
(To be used only for failure to deliver ARN sold pursuant to an Auction)
EMT Corp.
Student Loan Asset-Backed Auction Rate Notes
2000-I Senior Series A-16
2000-I Senior Series A-17
2000-I Senior Series A-18
2000-I Senior Series A-19
2000-I Senior Series A-20
2000-I Senior Subordinate Series B-3
("ARN")
Complete either I. or II.
I. We are a Broker-Dealer for ____________________ (the
"Purchaser"), which purchased $__________* of the ARN in the
Auction held on __________ from the seller of such ARN.
II. We are a Broker-Dealer for ____________________ (the
"Seller"), which sold $__________ of the ARN in the Auction
held on __________, to the purchaser of such ARN.
We hereby notify you that (check one):
_____ the seller failed to deliver such ARN to the Purchaser;
or
_____ the purchaser failed to make payment to the Seller upon
delivery of such ARN.
[NAME OF BROKER-DEALER]
By _____________________________________
Name ___________________________________
Title __________________________________
-------------
* ARN may only be transferred in units of $50,000.
