EXHIBIT 10.113
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BROKER-DEALER AGREEMENT
among
X.X. XXXXXX SECURITIES INC.
and
UFS SECURITIES, L.L.C.,
as Co-Broker-Dealers
and
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Auction Agent
Relating to
$90,900,000
MELMAC LLC
Senior Student Loan Revenue Bonds
Series 1994A-1, 1994A-2 and 1994A-3
("Auction Rate Securities(SM)")
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 Indenture ........................................... 1
Section 1.02. Terms Defined Herein .................................................................. 1
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 the Broker-Dealer ........................................ 5
Section 2.06. Settlement ............................................................................ 6
ARTICLE III
THE AUCTION AGENT
Section 3.01. Duties and Responsibilities ........................................................... 7
Section 3.02. Rights of the Auction Agent ........................................................... 7
Section 3.03. The Auction Agent's Disclaimer ........................................................ 8
ARTICLE IV
MISCELLANEOUS
Section 4.01. Termination ........................................................................... 8
Section 4.02. Agent Member .......................................................................... 8
Section 4.03. Communications ........................................................................ 8
Section 4.04. Entire Agreement ...................................................................... 9
Section 4.05. Benefits .............................................................................. 9
Section 4.06. Amendment; Waiver ..................................................................... 9
Section 4.07. Successors and Assigns ................................................................ 10
Section 4.08. Severability .......................................................................... 10
Section 4.09. Execution in Counterparts ............................................................. 10
ARTICLE V
GOVERNING LAW ....................................................................................... 10
EXHIBIT A SETTLEMENT PROCEDURES
EXHIBIT B ORDER FORM
EXHIBIT C NOTICE OF TRANSFER
EXHIBIT D NOTICE OF A FAILURE TO DELIVER OR MAKE PAYMENT
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BROKER-DEALER AGREEMENT
THIS BROKER-DEALER AGREEMENT dated as of October 15, 2002 (this "Broker
Dealer Agreement"), is by and between DEUTSCHE BANK TRUST COMPANY AMERICAS
(formerly known as Bankers Trust Company and 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 MELMAC LLC (as assignee of the Maine Educational Loan
Marketing Corporation) (the "Corporation"), X.X. XXXXXX SECURITIES INC. and UFS
SECURITIES, L.L.C. (together with their successors and assigns, collectively,
the "Broker-Dealer").
RECITALS
The Corporation has issued its $90,900,000 Senior Student Loan Revenue
Bonds, Series 1994A-1, 1994A-2 and 1994A-3 (the "Series 1994A-1/A-2/A-3 Bonds"),
under an Amended and Restated Indenture of Trust, dated as of January 1, 1999
(the "Indenture"), between the Corporation and Banknorth, National Association
(formerly known as Peoples Heritage Bank, N.A.), as trustee (the "Trustee").
The Indenture provides that the interest rate for the Auction Rate
Securities(SM) for each Interest Period after the Initial Period shall equal the
Auction Rate determined pursuant to the Auction Procedures set forth in the
Indenture.
Pursuant to Section 2.10(b) of the Indenture and Section 2.10 of the
Auction Agent Agreement, dated as of May 1, 1994 (the "Auction Agent
Agreement"), among the Trustee, the Auction Agent and the Corporation, the
Corporation 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:
ARTICLE I
DEFINITIONS AND RULES OF CONSTRUCTION
SECTION 1.01. TERMS DEFINED BY REFERENCE TO THE INDENTURE. Capitalized
terms used herein and not otherwise defined herein shall have the meanings given
such terms in the Indenture.
SECTION 1.02. 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 Auction Rates" means the rate per annum at which interest
accrues on a subseries of the Auction Rate Securities during the related
Interest Period.
"Auction Rate" means the Auction Rate as defined in the Indenture.
"Auction Rate Securities" means the Series 1994A-1/A-2/A-3 Bonds
bearing interest at an Auction Rate.
"Authorized Officer" means, with respect to the Auction Agent, each
Senior Vice President, Vice President, Assistant Vice President, Trust Officer,
Assistant Manager 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 the Broker-Dealer.
"Broker-Dealer Officer" means 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" means a beneficial owner of any of the Auction Rate
Securities.
"Notice of Failure to Deliver or Make Payment" means a notice
substantially in the form of Exhibit D hereto.
"Notice of Transfer" means a notice substantially in the form of
Exhibit C hereto.
"Order Form" means the form to be submitted by any Broker-Dealer on or
prior to any Rate Determination Date substantially in the form of Exhibit B
hereto.
"Settlement Procedures" means the Settlement Procedures attached hereto
as Exhibit A.
SECTION 1.03. 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 Broker-Dealer 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
Broker-Dealer 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.
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ARTICLE II
THE AUCTION
SECTION 2.01. PURPOSE: INCORPORATION BY REFERENCE OF AUCTION PROCEDURES
AND SETTLEMENT PROCEDURES.
(a) On each Rate Determination Date, the provisions of
the Auction Procedures will be followed by the Auction Agent for the
purpose of determining the Auction Rate for each subseries of the
Auction Rate Securities for the next Interest Period. Each periodic
operation of such procedures is hereinafter referred to as an
"Auction."
(b) Without prejudice to Section 3.01(c) hereof, 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, as
defined in the Indenture, may participate in Auctions for their own
accounts.
SECTION 2.02. PREPARATION FOR EACH AUCTION.
(a) Not later than 9:30 a.m. on each Rate Determination
Date for each subseries of the Auction Rate Securities, the Auction
Agent shall advise the Broker-Dealer by telephone of the Minimum Rate,
the Maximum Rate and the "AA" Composite Commercial Paper Rate or the
Index, as the case may be, used in determining such rates.
(b) In the event the Rate Determination Date for any
Auction shall be changed after the Auction Agent has given notice of
such Rate Determination Date pursuant to clause (vii) of paragraph (a)
of the Settlement Procedures, the Auction Agent, by such means as the
Auction Agent deems practicable, shall give notice of such change to
the Broker-Dealer not later than the earlier of 9:15 a.m. on the new
Rate Determination Date and 9:15 a.m. on the old Rate Determination
Date. Thereafter, the Broker-Dealer shall use its best efforts to
promptly notify its customers who are Existing Holders of such change
in the Rate Determination Date.
(c) From time to time upon request of the Auction Agent,
the Broker-Dealer shall provide the Auction Agent with a statement of
the aggregate amount of each subseries of the Auction Rate Securities
held by the Broker-Dealer as an Existing Holder.
(d) The Auction Agent shall send by telecopy or other
means a copy of any Notice of Auction Rate Securities Outstanding, in
substantially the form of Exhibit D to the Auction Agent Agreement,
received from the Trustee to the Broker-Dealer in accordance with
Section 4.03 hereof.
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SECTION 2.03. AUCTION SCHEDULE: METHOD OF SUBMISSION OF ORDERS.
(a) The Auction Agent shall conduct Auctions for each
subseries of the Auction Rate Securities 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
consents 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 Rate
Determination Date on which any such change shall be effective.
By 9:00 a.m. The Market Agent provides the
Auction Agent with the Index.
By 9:30 a.m. The Auction Agent advises the
Trustee and the Broker-Dealers of
the Maximum Rate, the Minimum Rate
and the "AA" Composite Commercial
Paper Rate or the Index, as the
case may be, to be used in
determining the Auction Rate under
the Auction Procedures, the
Indenture and the Auction Agent
Agreement.
9:30 a.m.-1:00 p.m. The Auction Agent assembles
information communicated to it by
Broker-Dealers as provided in
Section 2.03(b)(i) of the
Indenture. The Submission Deadline
is 1:00 p.m.
Not earlier than 1:00 p.m. The Auction Agent makes
determinations pursuant to Section
2.03(c)(i) of the Indenture.
By approximately 3:00 p.m. The Auction Agent advises the
Trustee of the results of the
Auction as provided in Section
2.03(c)(ii) of the Indenture.
Submitted Bids and Submitted Sell
Orders are accepted and rejected
in whole or in part and the
principal amount of Auction Rate
Securities is allocated as
provided in Section 2.03(d) of the
Indenture. The Auction Agent gives
notice of Auction results as set
forth in Section 2.04(a) hereof.
(b) The Broker-Dealer agrees to maintain a list of
Potential Holders and to contact the Potential Holders of such list on
or prior to each Rate Determination Date for the purposes of
participating in the Auction on such Rate Determination 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 Holders 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.
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(d) The Broker-Dealer shall deliver to the Auction Agent
(i) a Notice of Transfer with respect to any transfer of Auction Rate
Securities 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
Auction Rate Securities to be transferred to or payment to be made by
any person that purchased or sold Auction Rate Securities through the
Broker-Dealer pursuant to an Auction. The Auction Agent is not required
to accept any notice delivered pursuant to the terms of the foregoing
sentence 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
related Rate Determination Date.
(e) If the Broker-Dealer is an affiliate of the
Corporation, it must submit at the next Auction therefor a Sell Order
covering all Auction Rate Securities 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(e).
(f) The Broker-Dealer agrees to handle its customers'
Orders in accordance with its duties under applicable securities laws
and rules.
SECTION 2.04. NOTICES.
(a) On each Rate Determination 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. If
requested by the Broker-Dealer, the Auction Agent shall as soon as
practical on the Business Day next succeeding such Rate Determination
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 Rate Determination 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. The Broker-Dealer, as the sole, initial
Broker-Dealer (as defined in the Indenture), shall also notify the
Corporation, in writing of the Auction Rate within a reasonable time
(not in excess of two Business Days) after the determination thereof.
(c) The Auction Agent shall deliver to the Broker-Dealer
after receipt all notices and certificates that the Auction Agent is
required to deliver to the Broker-Dealer pursuant to Article II of the
Auction Agent Agreement at the times and in the manner set forth in the
Auction Agent Agreement.
SECTION 2.05. SERVICE CHARGE TO BE PAID TO THE BROKER-DEALER. With
respect to each Auction for which there were Sufficient Clearing Bids or all
Auction Rate Securities were subject to Hold Orders, the Auction Agent shall pay
to the Broker-Dealer from moneys received from the Trustee, not later than 12:00
p.m., eastern time, on the next succeeding Business Day after such Auction, an
amount equal to the product of (a) a fraction the numerator of which is the
number of days in the Auction Period to which the Auction relates and the
denominator of which
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is 360 times (b) the Broker-Dealer Fee Rate times (c) the sum of (i) the
aggregate principal amount of Auction Rate Securities placed by the
Broker-Dealer in such Auction that were (A) 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 (B) the subject of Submitted Bids of Potential
Holders submitted by the Broker-Dealer and purchased as a result of such
submission, plus (ii) the aggregate principal amount of Auction Rate Securities
subject to valid Hold Orders submitted to the Auction Agent by the
Broker-Dealer, plus (iii) the aggregate principal amount of Auction Rate
Securities 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 clause (c)(iii) above, if any Existing Holder who
acquired Auction Rate Securities through the Broker-Dealer transfers those
Auction Rate Securities to another person other than pursuant to an Auction,
then the Broker-Dealer shall continue to be the Broker-Dealer through which the
Auction Rate Securities 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 Auction Rate Securities were acquired.
SECTION 2.06. SETTLEMENT.
(a) If any Existing Holder on whose behalf the
Broker-Dealer has submitted a Bid or Sell Order for Auction Rate
Securities that was accepted in whole or in part fails to instruct its
Agent Member to deliver the Auction Rate Securities subject to such Bid
or Sell Order against payment therefor, the Broker-Dealer shall
instruct such Agent Member to deliver such Auction Rate Securities
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 Auction
Rate Securities that is less than the principal amount of the Auction
Rate Securities specified in such Bid to be purchased by such Potential
Holder. Notwithstanding the foregoing terms of this Section, any
delivery or non-delivery of Auction Rate Securities 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 2.03(d) hereof. The Auction Agent shall have no
duty or liability with respect to enforcement of this Section 2.06(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
Agent Member to deliver Auction Rate Securities or to pay for Auction
Rate Securities 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 2.05 hereof as a result
of any failure described in this Section 2.06(b).
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ARTICLE III
THE AUCTION AGENT
SECTION 3.01. 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 by
reason of anything set forth in the Official Statement, any other
offering material employed in connection with the offering and sale of
the Auction Rate Securities, or otherwise.
(c) In the absence of bad faith or negligence on its
part, the Auction Agent shall not be liable for any action taken 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.
SECTION 3.02. 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 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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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 Agent Agreement or the
Auction Rate Securities or any Official Statement or other offering material
used in connection with the offer and sale of the Auction Rate Securities.
ARTICLE IV
MISCELLANEOUS
SECTION 4.01. TERMINATION. Any party may terminate this Broker-Dealer
Agreement at any time upon five days' prior notice to the other party. This
Broker-Dealer Agreement shall automatically terminate upon the delivery of
certificates representing the Auction Rate Securities pursuant to Section
2.01(d) of the Indenture, upon the successful Conversion of all Auction Rate
Securities to other than an Auction Rate, or upon termination of the Auction
Agent Agreement.
SECTION 4.02. AGENT MEMBER. The Broker-Dealer is, and shall remain for
the term of this Broker-Dealer Agreement, a member of, or Agent Member in, the
Securities Depository (or an affiliate of such a member or Agent Member).
SECTION 4.03. COMMUNICATIONS. Except for (a) communications authorized
to be made by telephone pursuant to this Broker-Dealer 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 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 the Broker-Dealer: 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 the Broker-Dealer: UFS Securities, L.L.C.
0000 Xxxxx 00xx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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
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If to the Trustee: Banknorth, National Association
0000 Xx. Xxxxxx Xxxx
X.X. Xxx 0000
Xxxxxxxxx, Xxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Corporate Trust Department
If to the Corporation: MELMAC LLC
Xxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to: MELMAC LLC
c/o Nelnet, Inc.
X. 00xx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Vice President
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.
SECTION 4.04. 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.
SECTION 4.05. BENEFITS. Nothing in this Broker-Dealer Agreement,
express or implied, shall give to any person, other than the Auction Agent and
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.
SECTION 4.06. 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.
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(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.
SECTION 4.07. SUCCESSORS AND ASSIGNS. This Broker-Dealer Agreement
shall be binding upon, inure to the benefit of, and be enforceable by, the
respective successors and assigns of both of the Broker-Dealer and the Auction
Agent.
SECTION 4.08. SEVERABILITY. If any clause, provision or section of this
Broker-healer 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.
SECTION 4.09. 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.
ARTICLE V
GOVERNING LAW
This Broker-Dealer Agreement shall be governed by and construed in
accordance with the laws of the State of New York applicable to agreements made
and to be performed in said State.
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IN WITNESS WHEREOF, the parties hereto have caused this Broker-Dealer
Agreement to be duly executed and delivered by their proper and duly authorized
officers and effective as of October 15, 2002.
DEUTSCHE BANK TRUST COMPANY
AMERICAS, as Auction Agent
By /s/ Xxxxxx X. Xxxxx Xx.
_________________________________________
Name Xxxxxx X. Xxxxx Xx.
_______________________________________
Title Vice President
______________________________________
X.X. XXXXXX SECURITIES INC., as Co-
Broker-Dealer
By /s/ Xxxxx X. X'Xxxxxx
_________________________________________
Xxxxx X. X'Xxxxxx, Vice President
UFS SECURITIES, L.L.C., as Co-
Broker-Dealer
By /s/ Xxxx X. Xxxxx
_________________________________________
Xxxx X. Xxxxx, Vice President
Acknowledged and Agreed to:
MELMAC LLC
By /s/ Xxxxx X. Xxxxxx
_________________________________________
Xxxxx X. Xxxxxx, Vice President
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EXHIBIT A
SETTLEMENT PROCEDURES
If not otherwise defined herein, capitalized terms used herein shall
have the meanings given such terms in Article I of the Indenture. These
Settlement Procedures shall apply separately for each subseries of the Auction
Rate Securities.
(a) Not later than 3:00 p.m. on each Rate Determination
Date, the Auction Agent shall notify by telephone each Broker-Dealer
that participated in the Auction held on such Rate Determination Date
and submitted an Order on behalf of an Existing Holder or Potential
Holder of:
(i) the Auction Rate fixed for the next Interest
Period;
(ii) whether there were Sufficient Clearing Bids
in such Auction;
(iii) if such Broker-Dealer (a "Seller's
Broker-Dealer") submitted Bids or Sell Orders on behalf of an
Existing Holder, whether such Bid or Sell Order was accepted
or rejected, in whole or in part, and the principal amount of
Auction Rate Securities, if any, to be sold by such Existing
Holder;
(iv) if such Broker-Dealer (a "Buyer's
Broker-Dealer") submitted a Bid on behalf of a Potential
Holder, whether such Bid was accepted or rejected, in whole or
in part, and the principal amount of Auction Rate Securities,
if any, to be purchased by such Potential Holder;
(v) if the aggregate amount of Auction Rate
Securities 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 Auction Rate
Securities to be purchased by all Potential Holders on whose
behalf such Buyer's Broker-Dealer submitted a Bid, the name or
names of one or more Buyer's Broker-Dealers (and the name of
the Agent Member, if any, of each such Buyer's Broker-Dealer)
acting for one or more purchasers of such excess principal
amount of Auction Rate Securities and the principal amount of
Auction Rate Securities 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 Auction Rate
Securities to be purchased by all Potential Holders on whose
behalf such Buyer's Broker-Dealer submitted a Bid exceeds the
amount of Auction Rate Securities to be sold by all Existing
Holders on whose behalf such Seller's 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 Agent Member, if
any, of each such Seller's Broker-Dealer) acting for one or
more sellers of such excess principal amount of Auction Rate
Securities and the principal amount of Auction Rate Securities
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;
(vii) unless previously provided, a list of all
Applicable Auction Rates and related Interest Periods (or
portions thereof) since the last Interest Payment Date; and
(viii) the Rate Determination Date for the next
succeeding Auction.
(b) On each Rate Determination 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 Rate Determination 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 Agent Member to pay such Buyer's Broker-Dealer (or
its Agent Member) through the Securities Depository the amount
necessary to purchase the principal amount of Auction Rate
Securities to be purchased pursuant to such Bid against
receipt of such Auction Rate Securities;
(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, or a Bid that was accepted,
in whole or in part, to instruct such Existing Holder's Agent
Member to deliver to such Seller's Broker-Dealer (or its Agent
Member) through the Securities Depository the principal amount
of Auction Rate Securities 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 Auction Rate for the next Interest Period;
(v) advise each Existing Holder on whose behalf
such Broker-Dealer submitted an Order of the next Rate
Determination Date; 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 Rate Determination Date for such
subseries of the Auction Rate Securities.
(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
A-2
paragraph (b)(ii) above, and any Auction Rate Securities 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 Rate Determination Date:
(i) each Potential Holder and Existing Holder
with an Order in the Auction on such Rate Determination Date
shall instruct its Agent Members as provided in (b)(ii) or
(b)(iii) above, as the case may be;
(ii) each Seller's Broker-Dealer that is not an
Agent Member of the Securities Depository shall instruct its
Agent Member to (A) pay through the Securities Depository to
the Agent Member of the Existing Holder delivering Auction
Rate Securities to such Broker-Dealer following such Auction
pursuant to (b)(ii) above, the amount necessary, including
accrued interest, if any, to purchase such Auction Rate
Securities against receipt of such Auction Rate Securities,
and (B) deliver such Auction Rate Securities through the
Securities Depository to a Buyer's Broker-Dealer (or its Agent
Member) 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 an
Agent Member in the Securities Depository shall instruct its
Agent Member to (A) pay through the Securities Depository to
Seller's Broker-Dealer (or its Agent Member) identified
following such Auction pursuant to (a)(vi) above the amount
necessary, including accrued interest, if any, to purchase
Auction Rate Securities to be purchased pursuant to (b)(iii)
above against receipt of such Auction Rate Securities, and (B)
deliver such Auction Rate Securities through the Securities
Depository to the Agent Member of the purchaser against
payment therefor.
(e) On the Business Day following each Rate Determination
Date:
(i) each Agent Member for a Bidder in the
Auction on such Rate Determination Date referred to in (d)(i)
above shall instruct the Securities Depository to execute the
transactions described under (b)(ii) or (b)(iii) above for
such Auction, and the Securities Depository shall execute such
transactions;
(ii) each Seller's Broker-Dealer or its Agent
Member shall instruct the Securities Depository to execute the
transactions described in (d)(ii) above for such Auction, and
the Securities Depository shall execute such transactions: and
(iii) each Buyer's Broker-Dealer or its Agent
Member shall instruct the Securities Depository to execute the
transactions described in (d)(iii) above for such Auction, and
the Securities Depository shall execute such transactions.
A-3
(f) If an Existing Holder selling Auction Rate Securities
in an Auction fails to deliver such Auction Rate Securities (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 Auction Rate Securities that is less than the
principal amount of Auction Rate Securities that otherwise was to be
purchased by such Potential Holder. In such event, the principal amount
of Auction Rate Securities to be so delivered shall be determined
solely by such Broker-Dealer (but only in denominations of $100,000 or
any integral multiples thereof). Delivery of such lesser principal
amount of Auction Rate Securities shall constitute good delivery.
Notwithstanding the foregoing terms of this paragraph (f), any delivery
or non-delivery of Auction Rate Securities 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 non-delivery 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 Agent
Member to take delivery of or deliver, as the case may be, the
principal amount of Auction Rate Securities purchased or sold pursuant
to an Auction or otherwise.
A-4
EXHIBIT B
ORDER FORM
Rate Determination Date ____________________
The undersigned Broker-Dealer submits the following orders on behalf of
the Bidder(s) indicated below:
BIDS BY EXISTING HOLDERS
PRINCIPAL AMOUNT OF BONDS
EXISTING HOLDERS ($100,000 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.
BIDS BY EXISTING HOLDERS
PRINCIPAL AMOUNT OF BONDS
POTENTIAL HOLDERS* ($100,000 OR MULTIPLES) BID RATE
1. _________________________________________________ __________________________ _____________________
2. _________________________________________________ __________________________ _____________________
3. _________________________________________________ __________________________ _____________________
4. _________________________________________________ __________________________ _____________________
5. _________________________________________________ __________________________ _____________________
6. _________________________________________________ __________________________ _____________________
7. _________________________________________________ __________________________ _____________________
8. _________________________________________________ __________________________ _____________________
9. _________________________________________________ __________________________ _____________________
10. _________________________________________________ __________________________ _____________________
11. _________________________________________________ __________________________ _____________________
12. _________________________________________________ __________________________ _____________________
13. _________________________________________________ __________________________ _____________________
14. _________________________________________________ __________________________ _____________________
15. _________________________________________________ __________________________ _____________________
BONDS:
1. If one or more Orders covering in the aggregate more than the
outstanding principal amount of Auction Rate Securities 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 Auction Rate Securities of such subseries 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.
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 $100,000 or
integral multiples thereof.
-----------------------
* Potential Holders may be described by name or other reference as determined in
the sole discretion of the Broker-Dealer.
B-2
NAME OF BROKER-DEALER: _________________________________________________________
AUTHORIZED SIGNATURE: __________________________________________________________
TOTAL NUMBER OF ORDERS ON THIS ORDER FORM: _____________________________________
Submit to: Deutsche Bank Trust Company Americas
000 Xxxxx Xxx, 0xx Xxxxx
Xxxxxx Xxxx, Xxx Xxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
B-3
EXHIBIT C
NOTICE OF TRANSFER
(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 Agent Member for such Existing Holder.
We hereby notify you that such Existing Holder has transferred
$__________ (must be in units of $100,000) of Auction Rate Securities of such
subseries to ____________________.
[EXISTING HOLDER]
By _____________________________________
Name ___________________________________
Title __________________________________
[NAME OF BROKER-DEALER]
By _____________________________________
Name ___________________________________
Title __________________________________
[NAME OF AGENT MEMBER]
By _____________________________________
Name ___________________________________
Title __________________________________
--------------------
* Existing Holders may be described by name or other reference as determined in
the sole discretion of the Broker-Dealer.
EXHIBIT D
NOTICE OF A FAILURE TO DELIVER OR MAKE PAYMENT
Complete either I. or II.
I. We are a Broker-Dealer for Holder* ____________________ (the
"Purchaser"), which purchased $__________ (must be in units of
$100,000) of Auction in the Auction held on __________ from the seller
of such Auction Rate Securities.
II. We are a Broker-Dealer for Holder* ____________________ (the "Seller"),
which sold $__________ (must be in units of $100,000) of Auction in the
Auction held on __________ to the purchaser of such Auction Rate
Securities.
We hereby notify you that (check one):
_____ the Seller failed to deliver such Auction Rate Securities to the
Purchaser; or
_____ the Purchaser failed to make payment to the Seller upon delivery
of such Auction Rate Securities.
[NAME OF BROKER-DEALER]
By _____________________________________
Name ___________________________________
Title __________________________________
------------------
* Holders may be described by name or other reference as determined in the sole
discretion of the Broker-Dealer.
