Exhibit 4.4
BROKER-DEALER AGREEMENT
between
[_______],
as Auction Agent
and
XXXXXXX XXXXX XXXXXX INC.,
as Broker-Dealer
Dated as of [_____]
Relating to
EDUCATION LOANS INCORPORATED
STUDENT LOAN ASSET-BACKED NOTES
[_____] SERIES 1999-[X]
BROKER-DEALER AGREEMENT
This BROKER-DEALER AGREEMENT (the "Broker Dealer Agreement"), dated as of
[_____], is by and between [_____], a [_____] (together with its successors and
assigns, the "Auction Agent"), pursuant to authority granted to it in the
Auction Agent Agreement, defined below, acting not in its individual capacity,
but solely as agent for Education Loans Incorporated (the "Corporation"), a
Delaware corporation and XXXXXXX XXXXX BARNEY INC. (together with its respective
successors and assigns, the "Broker-Dealer").
RECITALS
The Corporation proposes to cause the Trustee, defined below, to
authenticate and deliver $[_____] aggregate principal amount of its Student Loan
Asset-Backed Notes, [_____] Series 1999-[X] (the "Series 1999-[X] Notes"). The
Series 1999-[X] Notes are being issued under the [_____] Supplemental Indenture
of Trust, dated as of [_____] (the "[_____] Supplemental Indenture"), executed
in accordance with the Indenture of Trust, dated as of ____________ 1, 1999 (the
"Indenture"), each between the Corporation and U.S. Bank National Association,
Minneapolis, Minnesota (together with its successors and assigns, the
"Trustee"). The Series 1999-[X] Notes are being issued as adjustable rate
securities.
The [_____] Supplemental Indenture provides that the Series 1999-[X] Note
Interest Rate for each Interest Period after the Initial Interest Period shall
equal the lesser of the Net Loan Rate and the Auction Rate, but in no event
shall exceed [18%] per annum with respect to the Series 1999-[X] Notes.
Pursuant to Section 2.9(a) of the Auction Agent Agreement, dated as of
[_____], among the Trustee, the Auction Agent and the Corporation (the "Auction
Agent Agreement"), the Trustee has directed the Auction Agent to execute and
deliver this Broker-Dealer Agreement.
The Auction Procedures require the participation of one or more
Broker-Dealers.
NOW, THEREFORE, in consideration of the mutual covenants contained herein
and other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the Auction Agent, as agent of the Corporation, and the
Broker-Dealer agree as follows:
Section 1. Definitions and Rules of Construction
1.1. Terms Defined by Reference to the [_____] Supplemental Indenture
Capitalized terms used herein and not otherwise defined herein shall have
the meanings given such terms in the [_____] Supplemental Indenture.
1.2. Terms Defined Herein
As used herein and in the Settlement Procedures, defined below, the
following terms shall have the following meanings, unless the context otherwise
requires:
"Applicable Series 1999-[X] Note Interest Rate" shall mean the Series
1999-[X] Note Interest Rate as defined in the [_____] Supplemental Indenture.
"Authorized Officer" shall mean, with respect to the Auction Agent, each
Managing Director, Vice President, Assistant Vice President and Assistant
Treasurer 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 the Broker-Dealer.
"Broker-Dealer Officer" shall mean each officer or employee of the
Broker-Dealer designated as a "Broker-Dealer Officer" for purposes of this
Broker-Dealer Agreement in a communication to the Auction Agent.
"Beneficial Owner" shall mean a beneficial owner of any of the Series
1999-[X] Notes.
"Notice of Failure to Deliver or Make Payment" shall mean a notice
substantially in the form of Exhibit D hereto.
"Notice of Transfer" shall mean a notice substantially in the form of
Exhibit C hereto.
"Order Form" shall mean the form to be submitted by any Broker-Dealer on or
prior to any Auction Date substantially in the form of Exhibit B hereto.
"Settlement Procedures" shall mean the Settlement Procedures attached
hereto as Exhibit A.
1.3. Rules of Construction
Unless the context or use indicate 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 Broker-Dealer Agreement as a whole.
(d) All references herein to a particular time of day shall be to New York
City time.
(e) [The rights and duties of the Broker-Dealer and the Auction Agent under
this Broker-Dealer Agreement shall apply to all series of the Series 1999-[X]
Notes, but
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separately. References to "Series 1999-[X] Notes," unless the context clearly
contemplates a reference to all Series 1999-[X] Notes shall refer only to the
Series 1999-[X] Notes as to rights and duties regarding Series 1999-[X] Notes;
and only to the Series 1999-[X] Notes as to rights and duties regarding Series
1999-[X] Notes.]
Section 2. The Auction
2.1. 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 Applicable
Series 1999-[X] Note Interest Rate for each Auction Period after the Initial
Interest 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 Broker-Dealer Agreement to the same extent
as if such provisions were fully set forth herein.
(c) The Broker-Dealer and other Broker-Dealers may participate in Auctions
for their own accounts.
2.2. Preparation for Each Auction.
(a) Not later than 9:30 A.M. on each Auction Date for the Series 1999-[X]
Notes, the Auction Agent shall advise the Broker-Dealer by telephone of the All
Hold Rate, the Maximum Auction Rate, the Net Loan Rate and the One-month LIBOR
or the Three-month LIBOR, as the case may be.
(b) If the Auction Date for any Auction shall be changed after the Auction
Agent has given notice of such Auction Date pursuant to clause (vii) of
paragraph (a) of the Settlement Procedures, the Auction Agent, by telephone
(confirmed in writing), telecopy or such other means as the Auction Agent deems
practicable, shall give notice of such change to the Broker-Dealer 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, the Broker-Dealer shall use its best efforts to
promptly notify its customers who are Existing Holders of such change in the
Auction Date.
(c) From time to time upon request of the Auction Agent pursuant to Section
2.2(d) of the Auction Agent Agreement, the Broker-Dealer shall provide the
Auction Agent with a statement of the aggregate amount of each series of Series
1999-[X] Notes held by the Broker-Dealer as an Existing Holder for its own
account or otherwise, as well as with a list of the Broker-Dealer's customers
that the Broker-Dealer believes are Existing Holders of either series of the
Series 1999-[X] Notes (listed by series) and the aggregate principal amount of
each series of Series 1999-[X] Notes beneficially owned by each such customer.
Except as permitted by Section 2.10 of the Auction Agent Agreement, the Auction
Agent shall keep confidential any such information and shall not disclose any
such information so provided to any person other than the Broker-Dealer, the
Issuer and the Trustee, provided that the Auction Agent reserves the
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right to disclose any such information if it is advised by its counsel that its
failure to do so would be unlawful.
(d) The Auction Agent shall send by telecopy or other means a copy of any
Notice of Series 1999-[X] Notes Outstanding received from the Trustee to the
Broker-Dealer in accordance with Section 4.3 hereof.
2.3. Auction Schedule: Method of Submission of Orders
(a) The Auction Agent shall conduct Auctions for the Series 1999-[X] Notes
in accordance with the schedule set forth below. Such schedule may be changed by
the Auction Agent with the consent of the Trustee and the Market Agent, which
consent shall not be unreasonably withheld or delayed. The Auction Agent shall
give written notice of any such change to the Broker-Dealer. Such notice shall
be given prior to the close of business on the Business Day next preceding the
first Auction Date on which any such change shall be effective.
By 9:30 A.M. The Auction Agent advises the Trustee and
the Broker-Dealers of the Maximum Auction
Rate, the All Hold Rate, the Net Loan Rate
and the One-month LIBOR or the Three-month
LIBOR, as the case may be, to be used in
determining the Auction Rate under the
Auction Procedures, the [_____] Supplemental
Indenture and the Auction Agent Agreement.
9:30 A.M. - 12:30 P.M The Auction Agent assembles information
communicated to it by Broker-Dealers as
provided in Section 4(c)(i) of the [_____]
Supplemental Indenture. The Submission
Deadline is 12:30 P.M.
Not earlier than 12:30 P.M. The Auction Agent makes determinations
pursuant to Section 4(c)(i) of the [_____]
Supplemental Indenture. Submitted Bids and
Submitted Sell Orders are accepted and
rejected in whole or in part and Series
1999-[X] Notes allocated as provided in
Section 4(d) of the [_____] Supplemental
Indenture.
By approximately The Auction Agent advises the Trustee and
3:00 P.M.* the Broker-Dealers of the results of the
4:00 P.M.** Auction as provided in Section 4(c)(ii) of
the [_____] Supplemental Indenture. The
Auction Agent gives notice of Auction
results as set forth in Section 2.4(a)
hereof.
*If the Series 1999-[X] Note Interest Rate is the Auction Rate.
**If the Series 1999-[X] Note Interest Rate is the Net Loan Rate.
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(b) The Broker-Dealer agrees to maintain a list of Potential Holders and to
contact the Potential Holders on such list on or prior to each Auction Date for
the purposes of participating in the Auction on such Auction Date.
(c) The Broker-Dealer shall submit Orders to the Auction Agent in writing
by delivering an Order Form. The Broker-Dealer shall submit separate Orders to
the Auction Agent for each Potential Holder or Existing Holder on whose behalf
the Broker-Dealer is submitting an Order and shall not net or aggregate the
Orders of different Potential Holders or Existing Holders on whose behalf the
Broker-Dealer is submitting Orders.
(d) The Broker-Dealer shall deliver to the Auction Agent (i) a Notice of
Transfer with respect to any transfer of Series 1999-[X] Notes made through the
Broker-Dealer by an Existing Holder to another person other than pursuant to an
Auction, and (ii) a Notice of Failure to Deliver or Make Payment with respect to
the failure of any Series 1999-[X] Note Interest Rate to be transferred to or
payment to be made by any person that purchased or sold Series 1999-[X] Notes
through the Broker-Dealer pursuant to a prior Auction. The Auction Agent is not
required to accept any notice delivered pursuant to clauses (i) or (ii) of this
subparagraph (d) with respect to an Auction unless it is received by the Auction
Agent by 3:00 P.M. on the Business Day next preceding such Auction Date.
(e) The Broker-Dealer agrees to handle its customers' Orders in accordance
with its duties under applicable securities laws and rules.
2.4. Notices
(a) On each Auction Date, the Auction Agent shall notify the Broker-Dealer
by telephone of the results of the Auction as set forth in paragraph (a) of the
Settlement Procedures. The Auction Agent shall by 10:30 A.M. on the Business Day
next succeeding such Auction Date if previously requested by the Broker-Dealer
notify the Broker-Dealer in writing of the disposition of all Orders submitted
by the Broker-Dealer in the Auction held on such Auction Date.
(b) The Broker-Dealer shall notify each Existing Holder or Potential Holder
on whose behalf the Broker-Dealer has submitted an Order as set forth in
paragraph (b) of the Settlement Procedures and take such other action as is
required by the Broker-Dealer pursuant to the Settlement Procedures.
(c) The Auction Agent shall deliver to the Broker-Dealer all notices and
certificates that the Auction Agent is required to deliver to the Broker-Dealer
pursuant to Section 2 of the Auction Agent Agreement at the times and in the
manner set forth in the Auction Agent Agreement.
2.5. Service Charge to Be Paid to the Broker-Dealer
Not later than 2:00 P.M. on each Interest Payment Date with respect to each
Interest Period that immediately follows an Auction Date, the Auction Agent
shall pay to the Broker-Dealer a fee, from monies received from the Trustee, in
an amount equal to the product of (i) the Broker-Dealer Fee Rate times (ii) a
fraction, the numerator of which is the number of
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days in the Interest Period related to the Auction by which the Applicable
Series 1999-[X] Note Interest Rate was determined and the denominator of which
is 360 times (iii) the sum of (A) the aggregate principal amount of Series
1999-[X] Notes placed by the Broker-Dealer in such Auction that were (x) the
subject of Submitted Bids of Existing Holders submitted by the Broker-Dealer and
continued to be held as a result of such submission and (y) the subject of
Submitted Bids of Potential Holders submitted by the Broker-Dealer and purchased
as a result of such submission, plus (B) the aggregate principal amount of
Series 1999-[X] Notes subject to valid Hold Orders submitted to the Auction
Agent by the Broker-Dealer plus (C) the aggregate principal amount of Series
1999-[X] Notes that were covered by Hold Orders deemed to have been submitted by
Existing Holders that were acquired by such Existing Holders through the
Broker-Dealer. For purposes of subclause (iii) (C) above, if any Existing Holder
who acquired Series 1999-[X] Notes through the Broker-Dealer transfers those
Series 1999-[X] Notes to another person other than pursuant to an Auction, then
the Broker-Dealer shall continue to be the Broker-Dealer through which the
Series 1999-[X] Notes so transferred were acquired; provided, however, that if
the transfer was effected by, or if the transferee is a Broker-Dealer other than
the Broker-Dealer, then such other Broker-Dealer shall be the Broker-Dealer
through which such Series 1999-[X] Notes were acquired.
2.6. Settlement
(a) If any Existing Holder on whose behalf the Broker-Dealer has submitted
a Bid or Sell Order for Series 1999-[X] Notes that was accepted in whole or in
part fails to instruct its Participant to deliver the Series 1999-[X] Notes
subject to such Bid or Sell Order against payment therefor, the Broker-Dealer
shall instruct such Participant to deliver such Series 1999-[X] Notes against
payment therefor and the Broker-Dealer may deliver to the Potential Holder on
whose behalf the Broker-Dealer submitted a Bid that was accepted in whole or in
part, a principal amount of the Series 1999-[X] Notes that is less than the
principal amount of the Series 1999-[X] Notes specified in such Bid to be
purchased by such Potential Holder. Notwithstanding the foregoing terms of this
Section, any delivery or nondelivery of Series 1999-[X] Notes that 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 2.3(d) hereof. The Auction Agent shall have no duty or liability with
respect to enforcement of this Section 2.6(a).
(b) Neither the Auction Agent, the Trustee, nor the Corporation shall have
any responsibility or liability with respect to the failure of an Existing
Holder, a Potential Holder or its respective Participant to deliver Series
1999-[X] Notes or to pay for Series 1999-[X] Notes sold or purchased pursuant to
the Auction Procedures or otherwise. The Auction Agent shall have no
responsibility for any adjustment to the fees paid pursuant to Section 2.5
hereof as a result of any failure described in this Section 2.6(b).
Section 3. The Auction Agent
3.1. Duties and Responsibilities
(a) The Auction Agent is acting hereunder solely as agent for the
Corporation and owes no fiduciary duties to any person by reason of this
Broker-Dealer Agreement.
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(b) The Auction Agent undertakes to perform such duties and only such
duties as are specifically set forth in this Broker-Dealer Agreement, and no
implied covenants or obligations shall be read into this Broker-Dealer 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
Broker-Dealer 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 (or failing to ascertain) the pertinent facts.
3.2. Rights of the Auction Agent.
(a) The Auction Agent may rely and shall be protected in acting or
refraining from acting upon any communication authorized by this Broker-Dealer
Agreement and upon any written instruction, notice request, direction, consent
report, certificate, share certificate or other instrument, paper or document
reasonably believed by it to be genuine. The Auction Agent shall not be liable
for acting upon any telephone communication authorized by this Broker-Dealer
Agreement which the Auction Agent believes in good faith to have been given by
the Trustee, a Broker-Dealer or the Corporation. 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 willful misconduct or negligence on the part of any agent or
attorney appointed by it with due care hereunder.
3.3. The Auction Agent's Disclaimer
The Auction Agent makes no representation as to the correctness of the
recitals in this Broker-Dealer Agreement, the Auction Agent Agreement or the
validity or adequacy of the Series 1995-2 Notes.
Section 4. Miscellaneous.
4.1. Termination
Any party may terminate this Broker-Dealer Agreement at any time upon five
days' prior notice to the other party; provided, however, that if the
Broker-Dealer is Xxxxxxx Xxxxx Xxxxxx Inc., neither the Broker-Dealer nor the
Auction Agent may terminate this Broker-Dealer Agreement without first obtaining
the prior written consent of the Trustee and the
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Corporation of such termination, which consent shall not be unreasonably
withheld or delayed. For so long as the Auction Agent Agreement is effective and
if Xxxxxxx Xxxxx Barney Inc. is the sole Broker-Dealer, any termination of this
Broker-Dealer Agreement shall not be effective unless and until a successor, or
substitute Broker-Dealer Agreement becomes effective. This Broker-Dealer
Agreement shall automatically terminate upon the delivery of certificates
representing the Series 1999-[X] Notes pursuant to Section 17 of the [_____]
Supplemental Indenture or upon termination of the Auction Agent Agreement.
4.2. Participant
The Broker-Dealer is, and shall remain for the term of this Broker-Dealer
Agreement, a member of, or Participant in, the Depository (or an affiliate of
such a member or Participant).
4.3. Communications
Except for (i) communications authorized to be made by telephone pursuant
to this Broker-Dealer Agreement or the Auction Procedures and (ii)
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 facsimile or similar writing)
and shall be given to such party, addressed to it, or its address or facsimile
number set forth below:
If to the Broker-Dealer, addressed: XXXXXXX XXXXX XXXXXX INC.
000 Xxxxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Student Loan Finance Group
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Auction Agent, addressed: ____________
____________
____________, ____________ ____________
Attention: ______________
Telephone: (___) ___-____
Facsimile: (___) ___-____
If to the Trustee, addressed: U.S. National Association
000 Xxxxx Xxxx Xxxxxx
Xxxxx Xxxxx, Xxxxx Xxxxxx 00000
Attention: Corporate Trust Department
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Corporation, addressed: Education Loans Incorporated
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000 Xxxxx Xxxxxx Xxxxxxxxx
Xxxxxxxx, Xxxxx Xxxxxx 00000
Attention: President
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 the Broker-Dealer by a Broker-Dealer
Officer and on behalf of the Auction Agent by an Authorized Officer of the
Auction Agent. The Broker-Dealer may record telephone communications with the
Auction Agent.
4.4. Entire Agreement
This Broker-Dealer Agreement contains the entire agreement between the
parties relating to the subject matter hereof, and there are not other
representations, endorsements, promises, agreements or understandings, oral,
written or inferred, between the parties relating to the subject matter hereof,
except for the fee letter dated as of [_____], from the Auction Agent to the
Corporation.
4.5. Benefits
Nothing in this Broker-Dealer Agreement, express or implied, shall give to
any person, other than the Auction Agent, the Corporation, the Broker-Dealer and
their respective successors and assigns, any benefit of any legal or equitable
right, remedy or claim under this Broker-Dealer Agreement.
4.6. Amendment; Waiver
(a) This Broker-Dealer Agreement shall not be deemed or construed to be
modified, amended, rescinded, canceled or waived, in whole or in part, except by
a written instrument signed by a duly authorized representative of the parties
hereto. This Broker-Dealer Agreement may not be amended without first obtaining
the prior written consent of the Corporation.
(b) Failure of either party to this Broker-Dealer Agreement to exercise any
right or remedy hereunder in the event of a breach of this Broker-Dealer
Agreement by the other party shall not constitute a waiver of any such right or
remedy with respect to any subsequent breach.
4.7. Successors and Assigns
This Broker-Dealer Agreement shall be binding upon, inure to the benefit
of, and be enforceable by, the parties hereto and their respective successors
and assigns.
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4.8. Severability
If any clause, provision or section of this Broker-Dealer 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 sections hereof.
4.9. Execution in Counterparts
This Broker-Dealer 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.
4.10. Governing Law
This Broker-Dealer Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
In Witness Whereof, the parties hereto have caused this Broker-Dealer
Agreement to be duly executed and delivered by their respective officers
thereunto duly authorized as of the date first above written.
[_______]
as Auction Agent
By:_________________________________
Title:__________________________
XXXXXXX XXXXX BARNEY INC.,
as Broker-Dealer
By:_________________________________
Title:__________________________
Pursuant to and in accordance
with Section 9 of the [_____]
Supplemental Indenture and
Section 2.9 of the Auction Agent
Agreement (defined above), the
undersigned consents to the
execution of the above
Broker-Dealer Agreement.
U.S. Bank National Association, as Trustee
By_________________________________
Title:_____________________________
EXHIBIT A TO BROKER-DEALER AGREEMENT
SETTLEMENT PROCEDURES
If not otherwise defined herein, capitalized terms used herein shall have
the meanings given such terms in Article 1 of the [_____] Supplemental
Indenture. These Settlement Procedures shall apply separately for each series of
Series 1999-[X] Notes.
(a) Not later than (1) 3:00 P.M., if the Series 1999-[X] Note Interest Rate
is the Auction Rate or (2) 4:00 p.m. if the Series 1999-[X] Note Interest Rate
is the Net Loan Rate, on each Auction Date, the Auction Agent shall notify by
telephone each Broker-Dealer that participated in the Auction held on such
Auction Date and submitted an Order on behalf of an Existing Holder or Potential
Holder of:
(i) the Series 1999-[X] Note Interest Rate fixed for the next
Interest Period;
(ii) whether there were Sufficient Bids in such Auction;
(iii) if such Broker-Dealer submitted Bids or Sell Orders on behalf of
an Existing Holder (a "Seller's Broker-Dealer"), whether such Bid
or Sell Order was accepted or rejected, in whole or in part, and
the principal amount of Series 1999-[X] Notes, if any, to be sold
by such Existing Holder;
(iv) if such Broker-Dealer submitted a Bid on behalf of a Potential
Holder (a "Buyer's Broker-Dealer"), whether such Bid was accepted
or rejected, in whole or in part, and the principal amount of
Series 1999-[X] Notes, if any, to be purchased by such Potential
Holder;
(v) if the aggregate amount of Series 1999-[X] Notes to be sold by
all Existing Holders on whose behalf such Seller's Broker-Dealer
submitted Bids or Sell Orders exceeds the aggregate principal
amount of Series 1999-[X] Notes to be purchased by all Potential
Holders on whose behalf such Broker-Dealer submitted a Bid, the
name or names of one or more Buyer's Broker-Dealers (and the name
of the Participant, if any, of each such Buyer's Broker-Dealer)
acting for one or more purchasers of such excess principal amount
of Series 1999-[X] Notes and the principal amount of Series
1999-[X] Notes to be purchased from one or more Existing Holders
on whose behalf such Seller's Broker-Dealer acted by one or more
Potential Holders on whose behalf each of such Buyer's
Broker-Dealers acted;
(vi) if the principal amount of Series 1999-[X] Notes to be purchased
by all Potential Holders on whose behalf such Buyer's
Broker-Dealer submitted a Bid exceeds the amount of Series
1999-[X]
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Notes to be sold by all Existing Holders on whose behalf such
Broker-Dealer submitted a Bid or a Sell Order, the name or names
of one or more Seller's Broker-Dealers (and the name of the
Participant, if any, of each such Seller's Broker-Dealer) acting
for one or more sellers of such excess principal amount of Series
1999-[X] Notes and the principal amount of Series 1999-[X] Notes
to be sold to one or more Potential Holders on whose behalf such
Buyer's Broker-Dealer acted by one or more Existing Holders on
whose behalf each of such Seller's Broker-Dealers acted; and
(vii) the Auction Date for the next succeeding Auction.
(b) On each Auction Date, each Broker-Dealer that submitted an Order on
behalf of any Existing Holder or Potential Holder shall:
(i) advise each Existing Holder and Potential Holder on whose behalf
such Broker-Dealer submitted a Bid or Sell Order in the Auction
on such Auction Date whether such Bid or Sell Order was accepted
or rejected, in whole or in part;
(ii) in the case of a Broker-Dealer that is a Buyer's Broker-Dealer,
advise each Potential Holder on whose behalf such Buyer's
Broker-Dealer submitted a Bid that was accepted, in whole or in
part, to instruct such Potential Holder's Participant to pay such
Buyer's Broker-Dealer (or its Participant) through the Depository
the amount necessary to purchase the principal amount of Series
1999-[X] Notes to be purchased pursuant to such Bid against
receipt of such Series 1999-[X] Notes;
(iii) in the case of a Broker-Dealer that is a Seller's Broker-Dealer,
instruct each Existing Holder on whose behalf such Seller's
Broker-Dealer submitted a Sell Order that was accepted, in whole
or in part, to instruct such Existing Holder's Participant to
deliver to such Seller's Broker-Dealer (or its Participant)
through the Depository the principal amount of Series 1999-[X]
Notes to be sold pursuant to such Order against payment therefor;
(iv) advise each Existing Holder on whose behalf such Broker-Dealer
submitted an Order and each Potential Holder on whose behalf such
Broker-Dealer submitted a Bid of the Series 1999-[X] Note
Interest Rate for the next Series 1999-[X] Note Interest Period;
(v) advise each Existing Holder on whose behalf such Broker-Dealer
submitted an Order of the next Auction Date, including, without
limitation, Existing Holders deemed to have submitted Hold Orders
pursuant to Section 4(b)(iii) of the Second Supplemental
Indenture; and
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(vi) advise each Potential Holder on whose behalf such Broker-Dealer
submitted a Bid that was accepted, in whole or in part, of the
next Auction Date.
(c) On the basis of the information provided to it pursuant to paragraph
(a) above, each Broker-Dealer that submitted a Bid or Sell Order in an Auction
is required to allocate any funds received by it in connection with such Auction
pursuant to paragraph (b) (ii) above, and any Series 1999-[X] Notes received by
it in connection with such Auction pursuant to paragraph (b) (iii) above among
the Potential Holders, if any, on whose behalf such Broker-Dealer submitted
Bids, the Existing Holders, if any, on whose behalf such Broker-Dealer submitted
Bids or Sell Orders in such Auction, and any Broker-Dealers identified to it by
the Auction Agent following such Auction pursuant to paragraph (a) (v) or (a)
(vi) above.
(d) On each Auction Date:
(i) each Potential Holder and Existing Holder with an Order in the
Auction on such Auction Date shall instruct its Participant as
provided in (b) (ii) or (b)(iii) above, as the case may be;
(ii) each Seller's Broker-Dealer that is not a Participant of the
Depository shall instruct its Participant to deliver such Series
1999-[X] Notes through the Depository to a Buyer's Broker-Dealer
(or its Participant) identified to such Seller's Broker-Dealer
pursuant to (a) (v) above against payment therefor; and
(iii) each Buyer's Broker-Dealer that is not a Participant in the
Depository shall instruct its Participant to pay through the
Depository to a Seller's Broker-Dealer (or its Participant)
identified following such Auction pursuant to (a) (vi) above the
amount necessary to purchase the Series 1999-[X] Notes to be
purchased pursuant to (b) (ii) above against receipt of such
Series 1999-[X] Notes.
(e) On the Business Day following each Auction Date:
(i) each Participant for a Bidder in the Auction on such Auction Date
referred to in (d) (i) above shall instruct the Depository to
execute the transactions described under (b) (11i) or (b) (iii)
above for such Auction, and the Depository shall e4cute such
transactions;
(ii) each Seller's Broker-Dealer or its Participant shall instruct the
Depository to execute the transactions described in (d)(ii) above
for such Auction, and the Depository shall execute such
transactions; and
(iii) each Buyer's Broker-Dealer or its Participant shall instruct the
Depository to execute the transactions described in (d) (iii)
above
A-3
for such Auction, and the Depository shall execute such
transactions.
(f) If an Existing Holder selling Series 1999-[X] Notes in an Auction fails
to deliver such Series 1999-[X] Notes (by authorized book-entry), a
Broker-Dealer may deliver to the Potential Holder on behalf of which it
submitted a Bid that was accepted a principal amount of Series 1999-[X] Notes
that is less than the principal amount of Series 1999-[X] Notes that otherwise
was to be purchased by such Potential Holder. In such event, the principal
amount of Series 1999-[X] Notes to be so delivered shall be determined solely by
such Broker-Dealer, but only in Authorized Denominations. Delivery of such
lesser principal amount of Series 1999-[X] Notes shall constitute good delivery.
Notwithstanding the foregoing terms of this paragraph (f), any delivery or
nondelivery of Series 1999-[X] Notes which shall represent any departure from
the results of an Auction, as determined by the Auction Agent, shall be of no
effect unless and until the Auction Agent shall have been notified of such
delivery or nondelivery in accordance with the provisions of the Auction Agent
Agreement and the Broker-Dealer Agreements. Neither the Trustee nor the Auction
Agent will have any responsibility or liability with respect to the failure of a
Potential Holder, Existing Holder or their respective Broker-Dealer or
Participant to deliver the principal amount of Series 1999-[X] Notes or to pay
for the Series 1999-[X] Notes purchased or sold pursuant to an Auction or
otherwise.
A-4
EXHIBIT B TO BROKER-DEALER AGREEMENT
EDUCATION LOANS INCORPORATED
STUDENT LOAN ASSET-BACKED NOTES
[_____] SERIES 1999-[X]
ORDER FORM
AUCTION DATE ___________
ISSUE ___________
SERIES ___________
Bidder(s) indicated The undersigned Broker-Dealer submits the following
orders on behalf of the below:
PRINCIPAL AMOUNT
OF NOTES ($100,000
EXISTING HOLDER OR MULTIPLES) BID RATE
1. _______________________ _______________________ ____________________
2. _______________________ _______________________ ____________________
3. _______________________ _______________________ ____________________
4. _______________________ _______________________ ____________________
5. _______________________ _______________________ ____________________
6. _______________________ _______________________ ____________________
7. _______________________ _______________________ ____________________
8. _______________________ _______________________ ____________________
9. _______________________ _______________________ ____________________
10. _______________________ _______________________ ____________________
*Existing Holders may be described by name or other reference as determined in
the sole discretion of the Broker-Dealer.
B-1
EDUCATION LOANS INCORPORATED
STUDENT LOAN ASSET-BACKED NOTES
[_____] SERIES 1999-[X]
BIDS BY POTENTIAL HOLDERS
PRINCIPAL AMOUNT
OF NOTES ($100,000
EXISTING HOLDER OR MULTIPLES) BID RATE
1. _______________________ _______________________ ____________________
2. _______________________ _______________________ ____________________
3. _______________________ _______________________ ____________________
4. _______________________ _______________________ ____________________
5. _______________________ _______________________ ____________________
6. _______________________ _______________________ ____________________
7. _______________________ _______________________ ____________________
8. _______________________ _______________________ ____________________
9. _______________________ _______________________ ____________________
10. _______________________ _______________________ ____________________
11. _______________________ _______________________ ____________________
12. _______________________ _______________________ ____________________
13. _______________________ _______________________ ____________________
14. _______________________ _______________________ ____________________
15. _______________________ _______________________ ____________________
NOTES:
1. If one or more Orders covering in the aggregate more than the outstanding
principal amount of Series 1999-[X] Notes held by any Existing Holder are
submitted, such Orders shall be considered valid in the order of priority
set forth in the Auction Procedures.
2. A Hold or Sell Order may be placed only by an Existing Holder covering a
principal account of Series 1999-[X] Notes not greater than the principal
amount currently held by such Existing Holder.
3. Potential Holders may only make Bids, each of which must specify a rate. If
more than one Bid is submitted on behalf of any Potential Holder, each Bid
submitted shall be a separate Bid with the rate specified herein.
4. Bids may contain no more than three figures to the right of the decimal
point (.00 1 of 1%).
5. An order must be submitted in principal amounts of $100,000 or integral
multiples thereof.
B-2
*Potential Holders may be described by name or other reference as determined in
the sole discretion of the Broker-Dealer.
B-3
NAME OF BROKER-DEALER:________________________________________________
AUTHORIZED SIGNATURE:_________________________________________________
TOTAL NUMBER OF ORDERS ON THIS ORDER FORM:____________________________
Submit to: [AUCTION AGENT NAME]
____________
____________, ____________ _____
Telephone: (___) ___-____
Telecopier: (___) ___-____
B-4
EXHIBIT C TO BROKER-DEALER AGREEMENT
EDUCATION LOANS INCORPORATED
STUDENT LOAN ASSET-BACKED NOTES
[_____] SERIES 1999-[X]
(To be used only for transfers made other
than pursuant to an Auction)
We are (check one)
_____________the Existing Holder indicated below*; or
______________the Broker-Dealer for such Existing Holder; or
______________the Participant for such Existing Holder.
We hereby notify you that such Existing Holder has transferred $_________ (must
be in units of $100,000) of Senior Series 1999-[X] Notes to
____________________________________________
(Existing Holder)
____________________________________________
(Name of Broker-Dealer)
____________________________________________
(Name of Participant)
By:_________________________________________
Printed Name:_______________________________
Title:______________________________________
*Existing Holders may be described by name or other reference as determined in
the sole discretion of the Broker-Dealer.
C-1
EXHIBIT D TO BROKER-DEALER AGREEMENT
EDUCATION LOANS INCORPORATED
STUDENT LOAN ASSET-BACKED NOTES
[_____] SERIES 1999-[X]
NOTICE OF A FAIL TO DELIVER OR MAKE PAYMENT
COMPLETE EITHER I OR II.
We are a Broker-Dealer for * (the "Purchaser"), which purchased
$_________ (must be in units of $100,000) of the [_____] Series
1999-[X] Notes in the Auction held on _____________________ from the
seller of such Series 1999-[X] Notes.
We are a Broker-Dealer for * (the "Seller"), which sold $___________
(must be in units of $100,000) of the [_____] Series 1999-[X] Notes in
the Auction held on ___________________ to the purchaser of such
[_____] Series 1999-[X] Notes.
We hereby notify you that (check one)
_______________ the Seller failed to deliver such [_____] Series 1999-[X]
Notes to the Purchaser.
_______________ the Purchaser failed to make payment to the Seller upon
delivery of such Series 1999-[X] Notes.
(Name of Broker-Dealer)
By:___________________________________
Name:_________________________________
Title:________________________________
*may be described by name or other reference as determined in the sole
discretion of the Broker-Dealer.
D-1