EXHIBIT 4.4
BROKER-DEALER AGREEMENT
between
BANKERS TRUST COMPANY,
as Auction Agent
and
XXXXXXX XXXXX XXXXXX INC.,
as Broker-Dealer
Dated as of JULY 1, 2001
Relating to
EDUCATION LOANS INCORPORATED
STUDENT LOAN ASSET-BACKED NOTES
SENIOR SERIES 2001-1A and B
AND
SUBORDINATE SERIES 2001-1C
BROKER-DEALER AGREEMENT
This BROKER-DEALER AGREEMENT (the "Broker Dealer Agreement"), dated as of
July 1, 2001, is by and between BANKERS TRUST COMPANY, a New York banking
corporation (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 $79,000,000 aggregate principal amount of its Student
Loan Asset-Backed Notes, Senior Series 2001-1A (the "Series 2001-1A Notes"),
$79,000,000 aggregate principal amount of its Student Loan Asset-Backed Notes,
Senior Series 2001-1B (the "Series 2001-1B Notes", and together with the Series
2001-1A Notes, the "Series 2001-1 Senior Notes"), and $23,800,000 aggregate
principal amount of its Student Loan Asset-Backed Notes, Subordinate Series
2001-1C (the "Series 2001-1C Notes", and together with the Series 2001-1 Senior
Notes, the "Series 2001-1 Notes"). The Series 2001-1 Notes are being issued
under the Third Supplemental Indenture of Trust, dated as of July 1, 2001 (the
"Third Supplemental Indenture"), executed in accordance with the Indenture of
Trust, dated as of December 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 2001-1 Notes are
being issued as adjustable rate securities.
The Third Supplemental Indenture provides that the Series 2001-1 Note
Auction 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 2001-1 Notes.
Pursuant to Section 2.9(a) of the Auction Agent Agreement, dated as of July
1, 2001, 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 Third Supplemental Indenture
Capitalized terms used herein and not otherwise defined herein shall have
the meanings given such terms in the Third 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 2001-1 Note Auction Rate" shall mean the Series 2001-1
Note Auction Rate as defined in the Third Supplemental Indenture.
"Authorized Officer" shall mean, with respect to the Auction Agent, each
Managing Director, Vice President, Assistant Vice President, Assistant Secretary
and Assistant Treasurer 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
2001-1 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.
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(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
2001-1 Notes, but separately. References to "Series 2001-1 Notes," unless
the context clearly contemplates a reference to all Series 2001-1 Notes,
shall refer only to the Series 2001-1A Notes as to rights and duties
regarding Series 2001-1A Notes; only to the Series 2001-1B Notes as to
rights and duties regarding Series 2001-1B Notes; and only to the Series
2001-1C Notes as to rights and duties regarding Series 2001-1C 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 2001-1 Note Auction 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
2001-1 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.
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(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 2001-1 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 2001-1 Notes (listed by series) and
the aggregate principal amount of each series of Series 2001-1 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 right
to disclose any such information if it is advised by its counsel that its
failure to do so would be unlawful or would expose the Auction Agent to
liability, loss, claim or damage for which the Auction Agent has not
previously received indemnity reasonably satisfactory to it. The Auction
Agent shall notify the Broker-Dealer, the Corporation and the Trustee
promptly upon receipt of any request or demand to disclose such information
and shall cooperate with any party seeking a protective order or similar
relief.
(d) The Auction Agent shall send by telecopy or other means a copy of
any Notice of Series 2001-1 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 2001-1
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 Third
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 Third Supplemental
Indenture. The Submission Deadline is 12:30 P.M.
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Not earlier than The Auction Agent makes determinations pursuant to
12:30 P.M. Section 4(c)(i) of the Third Supplemental
Indenture. Submitted Bids and Submitted Sell
Orders are accepted and rejected in whole or in
part and Series 2001-1 Notes allocated as
provided in Section 4(d) of the Third Supplemental
Indenture.
By approximately The Auction Agent advises the Trustee and the
3:00 P.M.* Broker-Dealers of the results of the Auction as
4:00 P.M.** provided in Section 4(c)(ii) of the Third
Supplemental Indenture. The Auction Agent gives
notice of Auction results as set forth in Section
2.4(a) hereof.
* If the Series 2001-1 Note Auction Rate is the Auction Rate.
** If the Series 2001-1 Note Auction Rate is the Net Loan Rate.
(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 2001-1 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 2001-1 Notes to be
transferred to or payment to be made by any person that purchased or sold
Series 2001-1 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
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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 in cash equal to the product of (i) the Broker-Dealer Fee Rate times
(ii) a fraction, the numerator of which is the number of days from the preceding
Interest Payment Date (or from the Closing Date, in the case of the first
Interest Payment Date) to the current Interest Payment Date (or, if the
particular series of Series 2001-1 Notes ceased to be outstanding prior to such
current Interest Payment Date, the date on which such series ceased to be
outstanding) and the denominator of which is 360 times (iii) the aggregate
principal amount of Series 2001-1 Notes of such series outstanding at the close
of business on the date of the original issuance of the Series 2001-1 Notes (in
the case of the initial Interest Payment Date) or at the close of business on
the preceding Interest Payment Date (in the case of all succeeding Interest
Payment Dates), as the case may be.
2.6. Settlement
(a) If any Existing Holder on whose behalf the Broker-Dealer has
submitted a Bid or Sell Order for Series 2001-1 Notes that was accepted in
whole or in part fails to instruct its Participant to deliver the Series
2001-1 Notes subject to such Bid or Sell Order against payment therefor,
the Broker-Dealer shall instruct such Participant to deliver such Series
2001-1 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 2001-1
Notes that is less than the principal amount of the Series 2001-1 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 2001-1 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
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its respective Participant to deliver Series 2001-1 Notes or to pay for
Series 2001-1 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.
(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 conclusively rely and shall be fully
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.
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3.3. The Auction Agent's Disclaimer
The Auction Agent makes no representation as to the correctness, validity,
adequacy or accuracy of the recitals in or the adequacy or validity of this
Broker-Dealer Agreement, the Auction Agent Agreement or the validity or adequacy
of the Series 2001-1 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 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 2001-1 Notes
pursuant to Section 17 of the Third 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
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If to the Auction Agent, addressed: BANKERS TRUST COMPANY
Corporate Trust and Agency Group
0 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Auction Rate Securities
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Trustee, addressed: U.S. Bank 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
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 July 1, 2001, 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.
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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.
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.
[The remainder of this page is intentionally left blank.]
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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.
BANKERS TRUST COMPANY
as Auction Agent
By: /s/ Xxxx Xxxxxxx
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Title: Assistant Vice President
-----------------------------
XXXXXXX XXXXX XXXXXX INC.,
as Broker-Dealer
By: /s/ X. Xxxxx
------------------------------------
Title:
-----------------------------
Pursuant to and in accordance with Section
9 of the Third 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 /s/ Xxxxxx Xxxxxx
-------------------------------
Title: Corporate Trust Officer
---------------------------
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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 Third Supplemental Indenture.
These Settlement Procedures shall apply separately for each series of Series
2001-1 Notes.
(a) Not later than (1) 3:00 P.M., if the Series 2001-1 Note Auction
Rate is the Auction Rate or (2) 4:00 p.m. if the Series 2001-1 Note Auction
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 2001-1 Note Auction 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 2001-1 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 2001-1 Notes, if any, to be purchased by such Potential
Holder;
(v) if the aggregate amount of Series 2001-1 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 2001-1 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 2001-1 Notes and the principal amount of Series 2001-1
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 2001-1 Notes to be purchased by
all Potential Holders on whose behalf such Buyer's Broker-Dealer
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submitted a Bid exceeds the amount of Series 2001-1 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 2001-1 Notes
and the principal amount of Series 2001-1 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
2001-1 Notes to be purchased pursuant to such Bid against receipt
of such Series 2001-1 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 2001-1
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 2001-1 Note Auction
Rate for the next Series 2001-1 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
A-2
Orders pursuant to Section 4(b)(iii) of the Third Supplemental
Indenture; and
(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 2001-1 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
2001-1 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 2001-1 Notes to be
purchased pursuant to (b) (ii) above against receipt of such
Series 2001-1 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) (ii) or (b) (iii)
above for such Auction, and the Depository shall execute 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
A-3
(iii) each Buyer's Broker-Dealer or its Participant shall instruct the
Depository to execute the transactions described in (d) (iii)
above for such Auction, and the Depository shall execute such
transactions.
(f) If an Existing Holder selling Series 2001-1 Notes in an Auction
fails to deliver such Series 2001-1 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 2001-1 Notes
that is less than the principal amount of Series 2001-1 Notes that
otherwise was to be purchased by such Potential Holder. In such event, the
principal amount of Series 2001-1 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 2001-1
Notes shall constitute good delivery. Notwithstanding the foregoing terms
of this paragraph (f), any delivery or nondelivery of Series 2001-1 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 2001-1 Notes or to
pay for the Series 2001-1 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
[SENIOR SERIES 2001-1A]
[SENIOR SERIES 2001-1B]
[SUBORDINATE SERIES 2001-1C]
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 ($50,000
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
[SENIOR SERIES 2001-1A]
[SENIOR SERIES 2001-1B]
[SUBORDINATE SERIES 2001-1C]
BIDS BY POTENTIAL HOLDERS
PRINCIPAL AMOUNT
OF NOTES ($50,000
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 2001-1 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 amount of Series 2001-1 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 (.001 of 1%).
5. An order must be submitted in principal amounts of $50,000 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: BANKERS TRUST COMPANY
Corporate Trust and Agency Group
0 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
B-4
EXHIBIT C TO BROKER-DEALER AGREEMENT
EDUCATION LOANS INCORPORATED
STUDENT LOAN ASSET-BACKED NOTES
[SENIOR SERIES 2001-1A]
[SENIOR SERIES 2001-1B]
[SUBORDINATE SERIES 2001-1C]
(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 $50,000) of [Senior Series 2001-1A Notes] [Senior Series 2001-1B
Notes] [Subordinate Series 2001-1C 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
[SENIOR SERIES 2001-1A]
[Senior Series 2001-1B]
[SUBORDINATE SERIES 2001-1C]
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 $50,000) of the
[Senior Series 2001-1A Notes] [Senior Series 2001-1B Notes]
[Subordinate Series 2001-1C Notes] in the Auction held on
_____________________ from the seller of such [Senior Series
2001-1A Notes] [Senior Series 2001-1B Notes] [Subordinate
Series 2001-1C Notes].
We are a Broker-Dealer for * (the "Seller"), which sold
$___________ (must be in units of $50,000) of the [Senior
Series 2001-1A Notes] [Senior Series 2001-1B Notes]
[Subordinate Series 2001-1C Notes] in the Auction held on
___________________ to the purchaser of such [Senior Series
2001-1A Notes] [Senior Series 2001-1B Notes] [Subordinate
Series 2001-1C Notes].
We hereby notify you that (check one)
_______ the Seller failed to deliver such [Senior Series 2001-1A
Notes] [Senior Series 2001-1B Notes] [Subordinate Series
2001-1C Notes] to the Purchaser.
_______ the Purchaser failed to make payment to the Seller upon
delivery of such [Senior Series 2001-1A Notes] [Senior
Series 2001-1B Notes] [Subordinate Series 2001-1C 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.
