EXHIBIT 4.3
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AUCTION AGENT AGREEMENT
by and among
EDUCATION LOANS INCORPORATED,
as Issuer,
U.S. BANK NATIONAL ASSOCIATION,
as Trustee,
and
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Auction Agent
________________________
Dated as of September 1, 2002
________________________
Relating to
$189,900,000
EDUCATION LOANS INCORPORATED
STUDENT LOAN ASSET-BACKED NOTES
SENIOR SERIES 2002-1A AND B
SUBORDINATE SERIES 2002-1C
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TABLE OF CONTENTS
Page
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Section 1. Definitions and Rules of Construction .............................................. 2
1.1 Terms Defined by Reference to Fourth Supplemental Indenture ........................ 2
1.2 Terms Defined Herein ............................................................... 2
1.3 Rules of Construction .............................................................. 3
Section 2. The Auction. ....................................................................... 4
2.1 Interest Rate on Series 2002-1 Notes; Incorporation by Reference of Auction
Procedures and Settlement Procedures ............................................... 4
2.2 Preparation of Each Auction; Maintenance of Existing Holder Registry ............... 5
2.3 All Hold Rates, Maximum Auction Rates, Net Loan Rate, One-Month
LIBOR and Three-Month LIBOR ........................................................ 7
2.4 Auction Schedule ................................................................... 8
2.5 Changes in Auction Periods or Auction Date ......................................... 9
2.6 Notice of Fee Rate Change .......................................................... 9
2.7 Notices to Existing Holders ........................................................ 10
2.8 Payment Default .................................................................... 10
2.9 Broker-Dealers ..................................................................... 10
2.10 Access to and Maintenance of Auction Records ....................................... 10
Section 3. Term of Agreement .................................................................. 11
Section 4. Trustee ............................................................................ 12
Section 5. Representations and Warranties of the Trustee ...................................... 12
Section 6. The Auction Agent .................................................................. 13
6.1 Duties and Responsibilities ........................................................ 13
6.2 Rights of the Auction Agent ........................................................ 13
6.3 Auction Agent's Disclaimer ......................................................... 14
6.4 Compensation, Remedies and Indemnification ......................................... 14
6.5 Compensation of the Broker-Dealers ................................................. 15
Section 7. Miscellaneous ...................................................................... 16
7.1 Governing Law ...................................................................... 16
7.2 Communications ..................................................................... 16
7.3 Entire Agreement ................................................................... 17
7.4 Benefits ........................................................................... 17
7.5 Amendment; Waiver .................................................................. 17
7.6 Successors and Assigns ............................................................. 18
7.7 Severability ....................................................................... 18
7.8 Execution in Counterparts .......................................................... 18
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Exhibits
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Exhibit A -- List of Initial Broker-Dealers for the Series 2002-1
Exhibit B -- Broker-Dealer Agreement
Exhibit C -- Notice of Ratings
Exhibit D -- Notice of Series 2002-1 Notes Outstanding
Exhibit E -- Notice of Fee Rate Change
Exhibit F -- Notice of a Payment Default
Exhibit G -- Settlement Procedures
Exhibit H -- Notice of Continuation of Auction Period
Exhibit I -- Notice of Series 2002-1 Note Auction Rate
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THIS AUCTION AGENT AGREEMENT, dated as of September 1, 2002 (this
"Auction Agent Agreement"), is being entered into by and among EDUCATION LOANS
INCORPORATED, a Delaware corporation (together with any successors or assigns,
the "Issuer"), U.S. BANK NATIONAL ASSOCIATION, Minneapolis, Minnesota, a
national banking association duly established and existing under the laws of the
United States of America, as Trustee (together with any successors or assigns,
the "Trustee") under a certain Fourth Supplemental Indenture of Trust, as
hereinafter defined and described, and DEUTSCHE BANK TRUST COMPANY AMERICAS, a
New York banking corporation (together with its successors and assigns, the
"Auction Agent"), acting not in its individual capacity but solely as agent for
the Issuer.
W I T N E S S E T H:
WHEREAS, the Issuer proposes to cause the Trustee to authenticate and
deliver $189,900,000 aggregate principal amount of its Student Loan Asset-Backed
Notes, Series 2002-1, consisting of three series designated Student Loan
Asset-Backed Notes, Senior Series 2002-1A (the "Series 2002-1A Notes"), Student
Loan Asset-Backed Notes, Senior Series 2002-1B (the "Series 2002-1B Notes"), and
Student Loan Asset-Backed Notes, Subordinate Series 2002-1C (the "Series 2002-1C
Notes" and, together with the Series 2002-1A Notes and the Series 2002-1B Notes,
the " Series 2002-1 Notes"). The Series 2002-1 Notes are being issued under the
Fourth Supplemental Indenture of Trust, dated as of September 1, 2002 (the
"Fourth Supplemental Indenture"), by and between the Issuer and the Trustee and
executed pursuant to an Indenture of Trust, dated as of December 1, 1999 (as
amended and supplemented, the "Original Indenture"), by and between the Trustee
and the Issuer; and
WHEREAS, pursuant to Section 8 of the Fourth Supplemental Indenture,
the Auction Agent has been appointed to act in the capacities set forth in this
Auction Agent Agreement; and
WHEREAS, the Trustee is entering into this Auction Agent Agreement at
the direction of the Issuer pursuant to the terms of the Fourth Supplemental
Indenture;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein, the Issuer, the Trustee and the Auction Agent agree
as follows:
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Section 1. Definitions and Rules of Construction.
1.1 Terms Defined by Reference to Fourth Supplemental Indenture.
Capitalized terms used herein and not otherwise defined herein shall have the
meanings given such terms in the Fourth Supplemental Indenture.
1.2 Terms Defined Herein. As used herein and in the Settlement Procedures
(as defined below), the following terms shall have the following meanings,
unless the context otherwise requires:
"Auction" shall have the meaning specified in Section 2.1 hereof.
"Auction Agent Fee" shall have meaning specified in Section 6.4(b) hereof.
"Auction Agent Fee Rate" shall mean the rate per annum determined pursuant
to Section 6.4(b) hereof, as the same may be changed from time to time in
accordance with Section 6.4(b) hereof, at which the fee to be paid to the
Auction Agent for services rendered by it hereunder and under the Broker-Dealer
Agreements accrues pursuant to Section 6.4(b) hereof.
"Auction Procedures" shall mean the provisions that are set forth in
Sections 4 through 11, inclusive, of the Fourth Supplemental Indenture.
"Authorized Auction Agent Officer" shall mean, with respect to the Auction
Agent, each Managing Director, Vice President, Assistant Vice President and
Assistant Treasurer 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 Auction Agent
Officer" for purposes hereof in a communication to the Trustee and the Issuer.
"Authorized Issuer Officer" shall mean, with respect to the Issuer, the
Chairman of the Board of Directors, the President, any Vice President or the
Secretary of the Issuer or any other person designated in writing by the Board
of Directors of the Issuer to the Auction Agent from time to time, which writing
may limit the functions which such other person may undertake as an Authorized
Issuer Officer hereunder.
"Authorized Trustee Representative" shall mean each Vice President,
Assistant Vice President or Trust Officer in the Corporate Trust Department of
the Trustee and every other officer or employee of the Trustee designated as an
"Authorized Trustee Representative" for purposes hereof in a written
communication to the Auction Agent and the Issuer.
"Broker-Dealer" shall mean a Person listed on Exhibit A hereto, as such
Exhibit A may be amended from time to time.
"Broker-Dealer Agreement" shall mean each agreement between the Auction
Agent and a Broker-Dealer substantially in the form attached hereto as Exhibit
B.
"Broker-Dealer Fee" shall have the meaning specified in Section 6.5(a)
hereof.
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"Broker-Dealer Fee Rate" shall have the meaning specified in Section 6.5(b)
hereof.
"Business Day" shall mean a day of the year on which (i) banks located in
the city in which the Principal Office of the Trustee is located are not
required or authorized to remain closed, (ii) banks located in the city in which
the Principal Office of the Auction Agent, as set forth in Section 7.2 hereof,
is located are not required or authorized to remain closed, (iii) banks located
in the city in which the Principal Office of each Broker-Dealer, as set forth in
and for purposes of the applicable Broker-Dealer Agreement, is located are not
required or authorized to remain closed and (iv) The New York Stock Exchange is
not closed.
"Existing Holder Registry" shall mean the register maintained by the
Auction Agent pursuant to Section 2.2 hereof.
"Notice of Failure to Deliver or Make Payment" shall mean a notice
substantially in the form of Exhibit D to the Broker-Dealer Agreement.
"Notice of Fee Rate Change" shall mean a notice substantially in the form
of Exhibit E hereof.
"Notice of Payment Default" shall mean a notice substantially in the form
of Exhibit F hereto.
"Notice of Ratings" shall mean a notice substantially in the form of
Exhibit C hereto.
"Notice of Series 2002-1 Notes Outstanding" 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 to the Broker-Dealer Agreement.
"Participant" shall mean a member of, or participant in, the Securities
Depository.
"Settlement Procedures" shall mean the Settlement Procedures attached as
Exhibit G hereto.
1.3 Rules of Construction. Unless the context or use indicates another or
different meaning or intent, the following rules shall apply to the construction
of this Auction Agent 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 Auction Agent 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 Auction Agent Agreement as a whole.
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(d) All references herein to a particular time of day shall be to New
York City time.
(e) The rights and duties of the Trustee, the Auction Agent and the
Issuer under this Auction Agent Agreement shall apply to the Series 2002-1A
Notes, the Series 2002-1B Notes and the Series 2002-1C Notes, but
separately in each case. References to "Series 2002-1 Notes" shall, unless
the context clearly contemplates a reference to all the Series 2002-1
Notes, be deemed to refer only to a particular series of Series 2002-1
Notes.
Section 2. The Auction.
2.1 Interest Rate on Series 2002-1 Notes; Incorporation by Reference of
Auction Procedures and Settlement Procedures.
(a) During the Initial Interest Period, each of the Series 2002-1A
Notes, the Series 2002-1B Notes and the Series 2002-1C Notes shall bear
interest at the Series 2002-1 Note Initial Interest Rate for such series.
Thereafter, the Series 2002-1 Notes shall bear interest at the Series
2002-1 Note Interest Rate based on an Interest Period that shall be an
Auction Period. The Series 2002-1 Note Auction Rate on each series of the
Series 2002-1 Notes for each Auction Period shall be the lesser of (i) the
Net Loan Rate and (ii) the Auction Rate determined in accordance with
Sections 3 through 12 of the Fourth Supplemental Indenture (not to exceed
18% per annum). Pursuant to Section 8 of the Fourth Supplemental Indenture,
the Issuer has duly appointed Deutsche Bank Trust Company Americas as
Auction Agent for purposes of the Auction Procedures and to perform such
other obligations and duties as are herein set forth. Deutsche Bank Trust
Company Americas hereby accepts such appointment and agrees that, on each
Auction Date, it shall follow the procedures set forth in this Section 2
and the Auction Procedures for the purpose of, among other things,
determining the Auction Rate, and ultimately the Series 2002-1 Note Auction
Rate for each series of the Series 2002-1 Notes for each Auction Period
other than 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 hereof to the same extent as if
such provisions were fully set forth herein.
2.2 Preparation of Each Auction; Maintenance of Existing Holder Registry.
(a) A list of Broker-Dealers with respect to the Series 2002-1 Notes
(showing Xxxxxxx Xxxxx Xxxxxx Inc. as the sole initial Broker-Dealer) is
attached as Exhibit A to this Auction Agent Agreement. Not later than seven
days prior to any Auction Date for which any change in such list of
Broker-Dealers is to be effective, the Trustee, at the direction of an
Authorized Issuer Officer, will notify the Auction Agent in writing of such
change and, if any such change is the addition of a Broker-Dealer to such
list, shall cause to be delivered to the Auction Agent for execution by the
Auction Agent a Broker
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Dealer Agreement manually signed by such Broker-Dealer. The Auction
Agent shall have entered into a Broker-Dealer Agreement with each
Broker-Dealer prior to the participation of any such Broker-Dealer in
any Auction.
(b) In the event that any day that is scheduled to be an Auction Date
shall be changed after the Auction Agent shall have given the notice of
such Auction 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-Dealers not later than the earlier of 9:15 a.m., New York City time,
on the new Auction Date and 9:15 a.m., New York City time, on the old
Auction Date.
(c) (i) The Auction Agent shall maintain a current registry of
Persons that are Broker-Dealers, compiled initially on the Closing
Date as described below, and that hold Series 2002-1 Notes, for
purposes of dealing with the Auction Agent in connection with an
Auction (such registry being herein called the "Existing Holder
Registry"). Such Persons shall constitute the "Existing Holders" for
purposes of dealing with the Auction Agent in connection with an
Auction. The Auction Agent shall indicate in the Existing Holder
Registry for each Existing Holder the identity of the Broker-Dealer
which submitted the most recent Order in any Auction which resulted in
such Existing Holder continuing to hold or purchasing the Series
2002-1 Notes. Pursuant to its Broker-Dealer Agreement, Xxxxxxx Xxxxx
Barney Inc., as the sole initial Broker-Dealer with respect to the
Series 2002-1 Notes, has agreed to provide to the Auction Agent on the
Closing Date the names and addresses of the Persons who are to be
initially listed on the Existing Holder Registry as constituting the
initial Existing Holders of Series 2002-1 Notes for purposes of
dealing with the Auction Agent in connection with an Auction. The
Auction Agent may rely upon, as evidence of the identities of the
Existing Holders, such list, the results of each Auction and notices
from any Existing Holder, Participant of any Existing Holder or
Broker-Dealer of any Existing Holder as described in Section
2.2(c)(iii) hereof.
(ii) The Trustee shall notify the Auction Agent when any notice
of redemption is sent to the Securities Depository as the Holder of
Series 2002-1 Notes not later than 11:00 a.m., New York City time, on
the date such notice is sent. Such notice with respect to a redemption
shall be substantially in the form of Exhibit D hereto, Notice of
Series 2002-1 Notes Outstanding. In the event the Auction Agent
receives from the Trustee written notice of any partial redemption of
any Series 2002-1 Notes, the Auction Agent shall, at least two
Business Days prior to the next Auction, request each Participant to
disclose to the Auction Agent (upon selection by such Participant of
the Existing Holders whose Series 2002-1 Notes are to be redeemed) the
aggregate principal amount of such Series 2002-1 Notes of each such
Existing Holder, if any, which are to be redeemed; provided the
Auction Agent has been furnished with the name and telephone number of
a person or department at such Participant from which it is to request
such information. In the absence of receiving any such information
with respect to any Existing Holder, from such Existing Holder's
Participant or otherwise, the Auction Agent may continue to treat such
Existing Holder as the beneficial owner
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of the principal amount of Series 2002-1 Notes shown in the Existing
Holder Registry.
(iii) The Auction Agent shall be required to register in the
Existing Holder Registry a transfer of Series 2002-1 Notes from an
Existing Holder to another Person only if such transfer is made to a
Person through a Broker-Dealer and if (A) such transfer is pursuant to
an Auction or (B) the Auction Agent has been notified in writing (1)
in a notice substantially in the form of a Notice of Transfer by such
Existing Holder, by the Participant of such Existing Holder or by the
Broker-Dealer of such Existing Holder of such transfer, or (2) in a
notice substantially in the form of a Notice of Failure to Deliver or
Make Payment by the Broker-Dealer of any Person that purchased or sold
Series 2002-1 Notes in an Auction of the failure of such Series 2002-1
Notes to be transferred as a result of the Auction. The Auction Agent
is not required to accept any Notice of Transfer or Notice of Failure
to Deliver or Make Payment delivered prior to an Auction unless it is
received by the Auction Agent by 3:00 p.m., New York City time, on the
Business Day next preceding the applicable Auction Date.
(d) The Auction Agent may request that the Broker-Dealers, as set
forth in the Broker-Dealer Agreements, provide the Auction Agent with the
aggregate principal amount of Series 2002-1 Notes held by such
Broker-Dealers for purposes of the Existing Holder Registry, as well as
with a list of their respective customers that such Broker-Dealers believe
are Existing Holders of the Series 2002-1 Notes and the aggregate principal
amount of Series 2002-1 Notes beneficially owned by each such customer.
Except as permitted by Section 2.10 hereof, the Auction Agent shall keep
confidential any such information and shall not disclose any such
information so provided to any person other than the relevant
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, claim or damage for which the Auction Agent has
not previously received indemnity reasonably satisfactory to it. The
Auction Agent shall notify the Issuer, the Trustee and each Broker-Dealer
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.
(e) The Auction Agent shall send by telecopy or other means a copy of
any Notice of Series 2002-1 Notes Outstanding received from the Trustee to
each Broker-Dealer in accordance with Section 4.3 of the applicable
Broker-Dealer Agreement.
2.3 All Hold Rates, Maximum Auction Rates, Net Loan Rate, One-Month LIBOR
and Three-Month LIBOR.
(a) On each Auction Date, the Auction Agent shall determine the All
Hold Rate, the Maximum Auction Rate and One-Month LIBOR or Three-Month
LIBOR, as the case may be. The Net Loan Rate with respect to each Auction
Date shall be determined and written notice thereof given to the Auction
Agent in accordance with Section 6 of the Fourth Supplemental Indenture.
Not later than 9:30 a.m., New York City
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time, on each Auction Date, the Auction Agent shall notify the Trustee and
the Broker-Dealers of the All Hold Rate, the Maximum Auction Rate, the Net
Loan Rate and One-Month LIBOR or Three-Month LIBOR, as the case may be, so
determined. On or within three Business Days after the Closing Date, the
Issuer shall give written notice to the Auction Agent of the initial
ratings on the Series 2002-1 Notes by Xxxxx'x and Fitch substantially in
the form of the Notice of Ratings. Thereafter, if there is a change in one
or both of such ratings, the Issuer shall give written notice to the
Auction Agent substantially in the form of the Notice of Ratings within
three Business Days of its receipt of notice of such change, but not later
than the close of business on the Business Day immediately preceding an
Auction Date if the Issuer has received written notice of such change in a
rating or ratings prior to 12:00 noon, New York City time, on such Business
Day, and the Auction Agent shall take into account such change in rating or
ratings for purposes hereof and any Auction so long as such Notice of
Ratings is received by the Auction Agent no later than the close of
business on such Business Day.
(b) (i) If, on any Auction Date for an Auction Period, an Auction
is not held for any reason, then the Series 2002-1 Note Auction Rate
for the next succeeding Auction Period shall be the Net Loan Rate.
(ii) If the ownership of the Series 2002-1 Notes is no longer
maintained in Book-Entry Form by the Securities Depository, no further
Auctions shall be held and the Series 2002-1 Note Auction Rate for
each Interest Period commencing after the delivery of certificated
Series 2002-1 Notes pursuant to Section 17 of the Fourth Supplemental
Indenture shall equal the lesser of the Net Loan Rate and the Maximum
Auction Rate as determined by the Trustee on the Business Day
immediately preceding the first day of such subsequent Interest Period
as provided in Section 3 of the Fourth Supplemental Indenture.
(iii) If a Payment Default shall have occurred with respect to a
series of Series 2002-1 Notes, the Series 2002-1 Note Auction Rate
with respect to such series for each Interest Period commencing on or
immediately after the occurrence of such Payment Default, and for each
Interest Period thereafter, to and including the Interest Period, if
any, during which, or commencing less than two Business Days after,
such Payment Default is cured, shall equal the Non-Payment Rate, as
determined by the Trustee on the first day of such Interest Period as
provided in Section 3 of the Fourth Supplemental Indenture. The Series
2002-1 Note Auction Rate for each Interest Period commencing at least
two Business Days after any cure of a Payment Default shall be
determined through implementation of the Auction Procedures.
2.4 Auction Schedule. The Auction Agent shall conduct Auctions on the
Auction Date 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 notice pursuant to Section 4.3 of the applicable Broker-Dealer
Agreement of any such change to each Broker-Dealer. Such notice shall be given
prior to the first Auction Date on which any such change shall be effective.
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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
One-Month LIBOR or Three-Month LIBOR, as the
case may be, to be used in determining the
Auction Rate under the Auction Procedures,
the Fourth Supplemental Indenture and this
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 4(c)(i) of the Fourth
Supplemental Indenture. The Submission
Deadline is 12:30 p.m., New York City time.
Not earlier than The Auction Agent makes the determination
1:00 p.m. pursuant to Section 4(c)(i) of the Fourth
Supplemental Indenture. Submitted Bids and
Submitted Sell Orders are accepted and
rejected in whole or in part and principal
amount of Series 2002-1 Notes is allocated as
provided in Section 4(d) of the Fourth
Supplemental Indenture.
By approximately The Auction Agent advises the Trustee and
3:00 p.m.1/ or the Broker-Dealers of the results of the
4:00 p.m.2/ Auction as provided in Section 4(c)(ii) of
the Fourth Supplemental Indenture.
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1/ If the Series 2002-1 Note Auction Rate is the Auction Rate.
2/ If the Series 2002-1 Note Auction Rate is the Net Loan Rate.
The Auction Agent shall follow the notification procedures set forth in
paragraph (a) of the Settlement Procedures.
2.5 Changes in Auction Periods or Auction Date.
(a) Changes in Auction Period or Periods.
(i) The Auction Agent shall mail any notice delivered to it
pursuant to Section 10(a) of the Fourth Supplemental Indenture to the
Existing Holders within two Business Days of its receipt thereof.
(ii) The Auction Agent shall deliver any certificate delivered to
it pursuant to Section 10(c) of the Fourth Supplemental Indenture to
the Broker-Dealers not later than 3:00 p.m., New York City time, on
the last Business Day preceding the next Auction Date by telecopy or
similar means.
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(iii) If, after delivery to the Auction Agent of the notice
referred to in Section 10(a) of the Fourth Supplemental Indenture, the
Auction Agent fails to receive the certificate referred to in Section
10(c) of the Fourth Supplemental Indenture by 11:00 a.m., New York
City time, on the last Business Day preceding the next Auction Date,
the Auction Agent shall deliver a notice of such failure in
substantially the form of Exhibit H hereto to the Broker-Dealers not
later than 3:00 p.m., New York City time, on such Business Day by
telecopy or other similar means.
(iv) If, after delivery to the Auction Agent of the notice
referred to in Section 10(a) and the certificate referred to in
Section 10(c) of the Fourth Supplemental Indenture, Sufficient Bids
are not received by the Auction Agent by the Submission Deadline, the
Auction Agent shall notify the Broker-Dealers not later than 3:00
p.m., New York City time, on such Auction Date by telephone confirmed
in writing in substantially the form of Exhibit I hereto the next
Business Day.
(b) Changes in Auction Date. The Auction Agent shall mail any notice
delivered to it pursuant to Section 11 of the Fourth Supplemental Indenture
to the Broker-Dealers within three Business Days of its receipt thereof.
2.6 Notice of Fee Rate Change. If the Auction Agent Fee Rate is changed
pursuant to the provisions of Section 6.4(b) hereof or the Broker-Dealer Fee
Rate is changed pursuant to the provisions of 6.5(b) hereof, the Auction Agent
shall mail a Notice of Fee Rate Change (i) to the Trustee with respect to a
change in the Auction Agent Fee Rate and the Broker-Dealer Fee Rate and (ii) to
the Broker-Dealers with respect to a change in the Broker-Dealer Fee Rate, in
each case within two Business Days of such change.
2.7 Notices to Existing Holders. The Auction Agent shall be entitled to
rely upon the address of each Broker-Dealer as provided in Section 4.3 of the
applicable Broker-Dealer Agreement in connection with any notice to each
Broker-Dealer, as an Existing Holder, required to be given by the Auction Agent.
2.8 Payment Default.
(a) After delivery by the Trustee to the Auction Agent of a notice
that a Payment Default shall have occurred, the Auction Agent shall, on the
Business Day following its receipt of the same, deliver a Notice of Payment
Default to the Broker-Dealers by telecopy or other similar means.
(b) The Auction Agent shall deliver a copy of any notice received by
it from the Trustee to the effect that a Payment Default has been cured to
the Broker-Dealers on the Business Day following its receipt of the same by
telecopy or other similar means.
2.9 Broker-Dealers.
(a) If the Auction Agent is provided with a copy of a Broker-Dealer
Agreement, which has been manually signed, with any person listed on
Exhibit A-1 or
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Exhibit A-2 hereto to which the Trustee, at the direction of an Authorized
Issuer Officer, shall have consented, it shall enter into such
Broker-Dealer Agreement with such person. The Issuer hereby directs the
Trustee to consent to Xxxxxxx Xxxxx Xxxxxx Inc. as the sole initial
Broker-Dealer with respect to the Series 2002-1 Notes.
(b) The Auction Agent may, at the written direction of an Authorized
Issuer Officer, and with the approval of Xxxxxxx Xxxxx Barney Inc., so long
as Xxxxxxx Xxxxx Xxxxxx Inc. is acting as a Broker-Dealer with respect to
such series, enter into a Broker-Dealer Agreement with respect to one or
more series of the Series 2002-1 Notes with any other person who requests
to be selected to act as a Broker-Dealer. The Auction Agent shall have
entered into a Broker-Dealer Agreement with each Broker-Dealer prior to the
participation of any such Broker-Dealer in any Auction.
(c) The Auction Agent shall terminate any Broker-Dealer Agreement as
set forth therein at the direction of an Authorized Issuer Officer.
2.10 Access to and Maintenance of Auction Records. The Auction Agent shall
afford to the Trustee, the Issuer and their respective agents, independent
public accountants and counsel access, at reasonable times during normal
business hours, to review and make extracts or copies (at no cost to the Auction
Agent) of all books, records, documents and other information concerning the
conduct and results of Auctions, provided that any such agent, accountant or
counsel shall furnish the Auction Agent with a letter from the Trustee or the
Issuer requesting that the Auction Agent afford such person access. The Auction
Agent shall maintain records relating to any Auction for a period of two years
after such Auction (or for such longer period requested by the Trustee or the
Issuer, not to exceed four years after each Auction), and such records shall, in
reasonable detail, accurately and fairly reflect the actions taken by the
Auction Agent hereunder. At the end of such period, the Auction Agent shall
deliver such records to the Trustee. The Trustee and the Issuer agree to keep
any information regarding the conduct and results of the Auctions, including,
without limitation, information regarding customers of any Broker-Dealer,
received from the Auction Agent in connection with this Auction Agent Agreement
confidential and shall not disclose such information or permit the disclosure of
such information without the prior written consent of the applicable
Broker-Dealer to anyone except such agent, accountant or counsel engaged to
audit or review the results of Auctions as permitted by this Section 2.10. Any
such agent, accountant or counsel, before having access to such information,
shall agree to keep such information confidential and not to disclose such
information or permit disclosure of such information without the prior written
consent of the applicable Broker-Dealer, except as may otherwise be required by
law.
Section 3. Term of Agreement.
(a) This Auction Agent Agreement shall terminate on the earlier to
occur of (i) the satisfaction and discharge of the Fourth Supplemental
Indenture with respect to the Series 2002-1 Notes or this Auction Agent
Agreement and (ii) the date on which this Auction Agent Agreement is
terminated in accordance with this Section 3. The Trustee may terminate
this Auction Agent Agreement in accordance with Section 8(a) of the Fourth
Supplemental Indenture. The Auction Agent may terminate this Auction Agent
Agreement upon written notice to the Trustee, the Issuer and the Market
Agent on the
-10-
date specified in such notice, which date shall be no earlier than 90 days
after the date of delivery of such notice. Notwithstanding the foregoing,
the provisions of Section 2 hereof shall terminate upon the delivery of
certificates representing Series 2002-1 Notes pursuant to Section 17 of the
Fourth Supplemental Indenture. Notwithstanding the foregoing, the Auction
Agent may terminate this Agreement without further notice if, within 25
days after notifying in writing the Trustee, the Issuer and the Market
Agent that it has not received payment of any Auction Agent Fee due it in
accordance with the terms hereof, the Auction Agent does not receive such
payment. Any resignation of the Auction Agent or termination of this
Auction Agent Agreement, other than as described in the preceding sentence
of this paragraph, shall not become effective until a successor Auction
Agent has been appointed and acceptance of such appointment by such
successor Auction Agent. The Issuer and the Trustee agree to diligently
proceed to appoint a successor Auction Agent. However, if a successor
Auction Agent shall not have been appointed within 60 days from the date of
such notice of resignation, the resigning Auction Agent may petition any
court of competent jurisdiction for the appointment of a successor Auction
Agent.
(b) Except as otherwise provided in this Section 3(b), the respective
rights and duties of the Trustee, the Issuer and the Auction Agent under
this Auction Agent Agreement shall cease upon termination of this Auction
Agent Agreement. The Trustee's representations and warranties to the
Auction Agent under Section 5 hereof, and the Issuer's obligations to the
Auction Agent under Section 6.4 hereof and to the Broker-Dealers under
Section 6.5 hereof, shall survive the termination of this Auction Agent
Agreement subject to Section 4 hereof. Upon termination of this Auction
Agent Agreement, the Auction Agent shall, upon request, promptly deliver to
the Trustee copies of all books and records maintained by it with respect
to Series 2002-1 Notes in connection with its duties hereunder.
Section 4. Trustee. All privileges, rights and immunities given to the
Trustee in the Fourth Supplemental Indenture are hereby extended to and
applicable to the Trustee's obligations hereunder.
Section 5. Representations and Warranties of the Trustee. The Trustee
hereby represents and warrants to the Auction Agent and the Issuer as follows:
5.1 The Trustee (i) has been duly incorporated and is validly existing and
in good standing as a national banking association under the laws of the United
States, and (ii) has all necessary authority, approvals, consents (whether from
the Issuer or otherwise) to enter into and perform its obligations under this
Auction Agent Agreement. This Auction Agent Agreement has been duly and validly
authorized, executed and delivered by the Trustee and constitutes the legal,
valid, binding and enforceable obligation of the Trustee.
5.2 Neither the execution, delivery and performance of this Auction Agent
Agreement, the consummation of the transactions contemplated hereby nor the
fulfillment of or compliance with the terms and conditions of this Auction Agent
Agreement will conflict with, violate or result in a breach of, the terms,
conditions or provisions of, or constitute a default under, any law or
regulation, any order or decree of any court or public authority having
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jurisdiction over the Trustee, or any mortgage, indenture, contract, agreement
or undertaking to which the Trustee is a party or by which it is bound, or the
organizational documents pursuant to which the Trustee has been created and
under which it is operating.
5.3 All approvals, consents and orders of any governmental authority,
legislative body, board, agency or commission having jurisdiction over the
Trustee which would constitute a condition precedent to or the absence of which
would materially adversely affect the due performance by the Trustee of its
obligations under this Auction Agent Agreement have been obtained.
Section 6. The Auction Agent.
6.1 Duties and Responsibilities.
(a) The Auction Agent is acting solely as agent of the Issuer and
owes no fiduciary duties to any person (other than the Issuer) by reason of
this Auction Agent Agreement. The Auction Agent undertakes to perform such
duties and only such duties as are specifically set forth in this Auction
Agent Agreement, and no implied covenants or obligations shall be read into
this Auction Agent Agreement by means of the provisions of the Fourth
Supplemental Indenture or otherwise against the Auction Agent.
(b) 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 Auction Agent Agreement. The Auction Agent shall not be liable
for any error of judgment made in good faith unless the Auction Agent shall
have been negligent in ascertaining the pertinent facts.
(c) The Auction Agent shall not agree to any amendment to a
Broker-Dealer Agreement without the prior written consent of the Issuer,
which consent shall not be unreasonably withheld.
6.2 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 hereby and upon
any written instruction, notice, request, direction, consent, report,
certificate, form of bond 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 hereby which
the Auction Agent believes in good faith to have been given by the Trustee
or by a Broker-Dealer. The Auction Agent may record telephone
communications with the Trustee or with Broker-Dealers or both.
(b) The Auction Agent may consult with counsel of its 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.
-12-
(c) The Auction Agent shall not be required to advance, expend or
risk its own funds or otherwise incur or become exposed to financial
liability in the performance of its duties hereunder.
(d) The Auction Agent may perform its duties and exercise its rights
hereunder either directly or by or through agents or attorneys and shall
not be responsible for any misconduct or negligence on the part of any
agent or attorney appointed by it with due care hereunder.
6.3 Auction Agent's Disclaimer. The Auction Agent makes no representation
as to the correctness of the recitals in this Auction Agent Agreement or the
Broker-Dealer Agreement or the validity or adequacy of the Series 2002-1 Notes.
6.4 Compensation, Remedies and Indemnification.
(a) With respect to each series of Series 2002-1 Notes, not later
than 12:00 noon, New York City time, on the first Interest Payment Date
relating to such series, the Issuer, pursuant to Section 5(b) of the Fourth
Supplemental Indenture, shall pay in arrears to the Auction Agent, solely
from moneys available therefor in the Administration Fund, an amount in
cash equal to the product of (i) the Auction Agent Fee Rate times (ii) a
fraction, the numerator of which is the number of days from the Closing
Date to such Interest Payment Date (or, if such series of Series 2002-1
Notes ceased to be outstanding prior to such 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 2002-1
Notes of such series on the date of original issuance of the Series 2002-1
Notes.
(b) With respect to each series of Series 2002-1 Notes any of which
were outstanding at any time during the related period, not later than
12:00 noon, New York City time, on each Interest Payment Date thereafter
relating to such series, the Issuer, pursuant to Section 5(b) of the Fourth
Supplemental Indenture, shall pay in arrears to the Auction Agent, solely
from moneys available therefor in the Administration Fund, an amount in
cash equal to the product of (i) the Auction Agent Fee Rate times (ii) a
fraction, the numerator of which is the number of days from the preceding
Interest Payment Date to the current Interest Payment Date (or, if such
series of Series 2002-1 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 average
principal amount of Series 2002-1 Notes of such series outstanding during
the period between such preceding Interest Payment Date (or the Closing
Date, in the case of the first Interest Payment Date) and the current
Interest Payment Date (or, if such series of Series 2002-1 Notes ceased to
be outstanding prior to such current Interest Payment Date, the date on
which such series ceased to be outstanding) (together with the fee
described in Section 6.4(a), the "Auction Agent Fee"). The Auction Agent
Fee Rate may be adjusted from time to time with the approval of an
Authorized Issuer Officer upon a written request of the Auction Agent
delivered to the Trustee and the Issuer. The Initial Auction Agent Fee Rate
shall be .02%. Any change in the Auction Agent Fee Rate shall be effective
on the Auction Date next succeeding such change.
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(c) The Issuer shall reimburse the Auction Agent, upon its request,
for all reasonable expenses, disbursements and advances, if any, incurred
or made by the Auction Agent in accordance with any provision of this
Auction Agent Agreement or the Broker-Dealer Agreements (including the
reasonable compensation, expenses and disbursements of its agents and
counsel) from amounts available therefor in the Administration Fund. The
Issuer shall indemnify and hold harmless the Auction Agent for and against
any loss, liability or expense incurred without negligence or bad faith on
the Auction Agent's part, arising out of or in connection with the
acceptance or administration of its agency under this Auction Agent
Agreement and the Broker-Dealer Agreements, including the reasonable costs
and expenses (including the reasonable fees and expenses of its counsel) of
defending itself against any such claim or liability in connection with its
exercise or performance of any of its duties hereunder and thereunder and
of enforcing this indemnification provision; provided that the Issuer shall
not indemnify the Auction Agent pursuant to this Section 6.4(c) for any
fees and expenses incurred by the Auction Agent in the normal course of
performing its duties hereunder and under the Broker-Dealer Agreements,
such fees and expenses being payable as provided in Section 6.4(a) and (b)
above.
6.5 Compensation of the Broker-Dealers.
(a) With respect to each series of the Series 2002-1 Notes, not later
than 12:00 noon, New York City time, on each Interest Payment Date relating
to such series, with respect to the Interest Period commencing on such
Interest Payment Date, the Issuer, pursuant to Section 5(b) of the Fourth
Supplemental Indenture, shall pay to the Auction Agent, solely from moneys
available therefor in the Administration Fund, 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 in such Interest Period and the
denominator of which is 360, times (iii) the aggregate principal amount of
Series 2002-1 Notes of such series that will be outstanding at the close of
business on such Interest Payment Date (the "Broker-Dealer Fee"). The
Auction Agent shall advise the Issuer of the amount referred to in the
preceding sentence not later than 4:00 p.m., New York City time, at least
two Business Days preceding such Interest Payment Date. The Auction Agent
shall apply such monies as set forth in Section 2.5 of the Broker-Dealer
Agreements.
(b) After retaining an amount equal to the Auction Agent Fee as
provided in Section 6.4 above, the Auction Agent shall pay the
Broker-Dealer Fee as provided in Section 6.5(a) above solely out of amounts
received by the Auction Agent pursuant to Section 5(b) of the Fourth
Supplemental Indenture. The Auction Agent shall advise the Issuer at least
annually, at the request of an Authorized Issuer Officer, of the prevailing
rate. The Broker-Dealer Fee Rate with respect to each series of the Series
2002-1 Notes may be adjusted from time to time with the approval of an
Authorized Issuer Officer upon a written request of the Auction Agent or
Xxxxxxx Xxxxx Barney Inc., as the initial Broker-Dealer with respect to the
Series 2002-1 Notes, delivered to the Trustee and the Issuer. The initial
Broker-Dealer Fee Rate for all Series 2002-1 Notes shall be .25% per annum.
If the Broker-Dealer Fee Rate is changed pursuant to the terms hereof, the
Trustee shall notify the Auction Agent thereof. Any changes in the
Broker-Dealer Fee Rate shall be effective on the Auction Date next
succeeding such change.
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Section 7. Miscellaneous.
7.1 Governing Law. This Auction Agent 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 such state, it being understood that the
corporate powers and legal capacity of the Issuer shall be construed and
interpreted in accordance with the laws of the State of Delaware.
7.2 Communications. Except for (i) communications authorized to be made
by telephone pursuant to this Auction Agent Agreement or the Auction Procedures
and (ii) communications in connection with 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 below:
If to the Trustee, addressed: U.S. Bank National Association
000 Xxxx Xxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000
Attn: Corporate Trust
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Issuer, addressed: Education Loans Incorporated
000 Xxxxx Xxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxx Xxxxxx 00000
Attn: President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Auction Agent, addressed: Deutsche Bank Trust Company Americas
c/o Deutsche Bank Services, New Jersey, Inc.
000 Xxxxx Xxx
Xxxxxx Xxxx, XX 00000
MSJCY 03-0606
Attention: Auction Rate Securities
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Market Agent, addressed: Xxxxxxx Xxxxx Barney Inc.
000 Xxxxxxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Auction Rate Trading
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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or such other address, telephone or facsimile number as such party may hereafter
specify for such purpose by notice in writing to the other parties. Each such
notice, request or communication shall be effective when delivered at the
address specified herein. Communications shall be given on behalf of the Trustee
by an Authorized Trustee Representative, on behalf of the Auction Agent by an
Authorized Auction Agent Officer and on behalf of the Issuer by an Authorized
Issuer Officer.
7.3 Entire Agreement. This Auction Agent Agreement contains the entire
agreement between the parties relating to the subject matter hereof, and there
are no other representations, endorsements, promises, agreements or
understandings, oral, written or inferred, between the parties relating to the
subject matter hereof.
7.4 Benefits. Nothing herein, express or implied, shall give to any
person, other than the Trustee, acting on behalf of the beneficial owners of the
Series 2002-1 Notes, the Auction Agent, the Issuer and their respective
successors and assigns, any benefit of any legal or equitable right, remedy or
claim hereunder.
7.5 Amendment; Waiver.
(a) This Auction Agent 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 duly authorized
representatives of the parties hereto.
(b) The Trustee and the Issuer shall not enter into or approve any
amendment of or supplement to the Fourth Supplemental Indenture which
materially affects the Auction Agent's duties or obligations under the
Fourth Supplemental Indenture without obtaining the prior written
consent of the Auction Agent. The Trustee shall promptly notify the
Auction Agent of any amendment of or supplement to the Fourth
Supplemental Indenture, and shall provide a copy thereof to the Auction
Agent upon request.
(c) Failure of a party hereto to exercise any right or remedy
hereunder in the event of a breach hereof by any other party shall not
constitute a waiver of any such right or remedy with respect to any
subsequent breach.
7.6 Successors and Assigns. This Auction Agent Agreement shall be
binding upon, inure to the benefit of and be enforceable by the respective
successors and assigns of each of the Trustee, the Issuer and the Auction Agent.
This Auction Agent Agreement may not be assigned by any party hereto absent the
prior written consent of the other parties hereto, which consents shall not be
unreasonably withheld.
7.7 Severability. If any clause, provision or section hereof 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 of the remaining clauses, provisions or sections hereof.
7.8 Execution in Counterparts. This Auction Agent 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.
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IN WITNESS WHEREOF, the parties hereto have caused this Auction Agent
Agreement to be duly executed and delivered by their proper and duly authorized
officers as of the date first above written.
EDUCATION LOANS INCORPORATED,
as Issuer
By: /s/ A. Norgrin Xxxxxxxxx
-----------------------------------
Title: President
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------
Title: Vice President
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Auction Agent
By: /s/ Xxxxxx X. Xxxxx Xx.
-----------------------------------
Title: Vice President
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EXHIBIT A
TO AUCTION AGENT AGREEMENT
LIST OF INITIAL BROKER-DEALERS WITH RESPECT TO THE SERIES 2002-1 NOTES
Xxxxxxx Xxxxx Barney Inc.
A-1
EXHIBIT B
TO AUCTION AGENT AGREEMENT
BROKER-DEALER AGREEMENT
B-1
EXHIBIT C
TO AUCTION AGENT AGREEMENT
NOTICE OF RATINGS
EDUCATION LOANS INCORPORATED
STUDENT LOAN ASSET-BACKED NOTES
SENIOR SERIES 2002-1A AND B
SUBORDINATE SERIES 2002-1C
NOTICE IS HEREBY GIVEN to the Auction Agent by the Issuer pursuant to
Section 2.3(a) of the Auction Agent Agreement that:
1. as of the date of this notice the rating by Xxxxx'x on the
captioned Senior Series 2002-1 Notes is ______ [and such rating is
[*"Aa3"or higher/lower than "Aa3"]]**;
2. as of the date of this notice the rating by Fitch on the captioned
Senior Series 2002-1 Notes is _____ [and such rating is [*"AA-" or
higher] [lower than "AA-"]]**;
3. as of the date of this notice the rating by Xxxxx'x on the
captioned Subordinate Series 2002-1 Notes is ______ [and such
rating is [*"______"or higher/lower than "_______"]]**; and
4. as of the date of this notice the rating by Fitch on the captioned
Subordinate Series 2002-1 Notes is _____ [and such rating is
[*"_______" or higher] [lower than "_______"]]**.
The Auction Agent may rely on such ratings for all purposes of the
Fourth Supplemental Indenture, including determination of the Maximum Auction
Rate thereunder, from the date hereof until further notice from the undersigned
Education Loans Incorporated.
EDUCATION LOANS INCORPORATED
By:_____________________________
Title:_______________________
Date:________________________
* Choose one.
** The information in the outer brackets will be used as applicable
whenever the Xxxxx'x rating is not equal to "Aa3" and/or the Fitch
rating is not equal to "AA-."
C-1
EXHIBIT D
TO AUCTION AGENT AGREEMENT
NOTICE OF SERIES 2002-1 NOTES OUTSTANDING
EDUCATION LOANS INCORPORATED
STUDENT LOAN
ASSET-BACKED NOTES
SENIOR SERIES 2002-1A[B]
[SUBORDINATE SERIES 2002-1C]
NOTICE IS HEREBY GIVEN that $_________ aggregate principal amount of
Series 2002-1A[B][C] Notes were outstanding at the close of business on the
immediately preceding Regular Record Date. Such aggregate principal amount of
Series 2002-1A[B][C] Notes, less $_________ aggregate principal amount of Series
2002-1A[B][C] Notes to be redeemed by the Issuer pursuant to the Fourth
Supplemental Indenture, for a net aggregate principal amount of Series
2002-1A[B][C] Notes of $______________, will be available on the next Auction
scheduled to be held on _______________.
Terms used herein have the meanings set forth in the Fourth
Supplemental Indenture relating to the above-referenced issue.
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:__________________________________
Title:____________________________
Date:_____________________________
D-1
EXHIBIT E
TO AUCTION AGENT AGREEMENT
NOTICE OF FEE RATE CHANGE
EDUCATION LOANS INCORPORATED
STUDENT LOAN
ASSET-BACKED NOTES
SENIOR SERIES 2002-1A AND [B]
SUBORDINATE SERIES 2002-1C
NOTICE IS HEREBY GIVEN that the [Auction Agent Fee Rate] [Broker-Dealer
Fee Rate with respect to the Series 2002-1___ Notes] has been changed in
accordance with Section [6.4(b)] [6.5(b)] of the Auction Agent Agreement. The
new [Auction Agent Fee Rate] [Broker-Dealer Fee Rate with respect to the Series
2002-1___ Notes] shall be ______% per annum.
Terms used herein have the meanings set forth in the Fourth
Supplemental Indenture relating to the above-referenced issue.
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Auction Agent
By:__________________________________
Title:____________________________
Date:_____________________________
APPROVED:
EDUCATION LOANS INCORPORATED
By:___________________________
Title:_____________________
Date:______________________
E-1
EXHIBIT F
TO AUCTION AGENT AGREEMENT
NOTICE OF A PAYMENT DEFAULT
EDUCATION LOANS INCORPORATED
STUDENT LOAN
ASSET-BACKED NOTES
SENIOR SERIES 2002-1A[B]
[SUBORDINATE SERIES 2002-1C]
NOTICE IS HEREBY GIVEN that a Payment Default has occurred and not been
cured with respect to the Series 2002-1___ Notes. Determination of the Series
2002-1 Note Auction Rate on the Series 2002-1 Notes pursuant to the Auction
Procedures will be suspended. The Series 2002-1 Note Auction Rate on each series
of the Series 2002-1 Notes for each Auction Period commencing after the date of
Payment Default will equal the Non-Payment Rate (as to each such series with
respect to which a Payment Default exists) or the Net Loan Rate (as to all other
series), as the case may be, as it is determined by the Trustee on the first day
of such Auction Period.
Terms used herein have the meanings set forth in the Fourth
Supplemental Indenture relating to the above-referenced issue.
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Auction Agent
By:__________________________________
Title:____________________________
Date:_____________________________
F-1
EXHIBIT G
TO AUCTION AGENT AGREEMENT
SETTLEMENT PROCEDURES
If not otherwise defined below, capitalized terms used herein shall
have the meanings given such terms in the Fourth Supplemental Indenture. These
Settlement Procedures apply separately to each series of Series 2002-1 Notes.
(a) Not later than (1) 3:00 p.m., if the Series 2002-1 Note
Auction Rate is the Auction Rate, or (2) 4:00 p.m., if the Series
2002-1 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 2002-1 Note Auction Rate fixed for the
next Interest Period;
(ii) whether there were Sufficient 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 Series 2002-1
Notes, 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 Series 2002-1 Notes, if any, to be
purchased by such Potential Holder;
(v) If the aggregate principal amount of Series 2002-1
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 2002-1 Notes 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
Participant, if any, of each such Buyer's Broker-Dealer)
acting for one or more purchasers of such excess principal
amount of Series 2002-1 Notes and the principal amount of
Series 2002-1 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 aggregate principal amount of Series 2002-1
Notes to be purchased by all Potential Holders on whose behalf
such Buyer's Broker-Dealer submitted a Bid exceeds the
aggregate principal amount of Series 2002-1 Notes 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 Participant, if any, of each such Seller's
G-1
Broker-Dealer) acting for one or more sellers of such excess
principal amount of Series 2002-1 Notes and the principal
amount of Series 2002-1 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 Securities Depository the amount
necessary to purchase the principal amount of Series 2002-1
Notes to be purchased pursuant to such Bid against receipt of
such Series 2002-1 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, or a Bid 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 Securities Depository the principal
amount of Series 2002-1 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
2002-1 Note Auction Rate for the next Interest Period;
(v) advise each Existing Holder on whose behalf such
Broker-Dealer submitted an Order of the next Auction 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 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 2002-1 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
G-2
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 paragraph (b)(ii) or (b)(iii)
above, as the case may be;
(ii) each Seller's Broker-Dealer that is not a
Participant of the Securities Depository shall instruct its
Participant to deliver such Series 2002-1 Notes through the
Securities Depository to a Buyer's Broker-Dealer (or its
Participant) identified to such Seller's Broker-Dealer
pursuant to paragraph (a)(v) above against payment therefor;
and
(iii) each Buyer's Broker-Dealer that is not a Participant
in the Securities Depository shall instruct its Participant to
pay through the Securities Depository to Seller's
Broker-Dealer (or its Participant) identified following such
Auction pursuant to (a)(vi) above in the amount necessary to
purchase Series 2002-1 Notes to be purchased pursuant to
paragraph (b)(ii) above against receipt of such Series 2002-1
Notes.
(e) On the Business Date following each Auction Date:
(i) each Participant for a Bidder in the Auction on such
Auction Date referred to in paragraph (d)(i) above shall
instruct the Securities Depository to execute the transactions
described under paragraph (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 Participant shall
instruct the Securities Depository to execute the transactions
described in paragraph (d)(ii) above for such Auction, and the
Securities Depository shall execute such transactions; and
(iii) each Buyer's Broker-Dealer or its Participant shall
instruct the Securities Depository to execute the transactions
described in paragraph (d)(iii) above for such Auction, and
the Securities Depository shall execute such transactions.
(f) If an Existing Holder selling Series 2002-1 Notes in an
Auction fails to deliver such Series 2002-1 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 2002-1 Notes that is less than the principal amount of Series
2002-1 Notes that otherwise was to be purchased by such Potential
Holder. In such event, the principal amount of Series 2002-1 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 2002-1 Notes shall constitute good delivery.
G-3
Notwithstanding the foregoing terms of this paragraph (f), any delivery
or nondelivery of Series 2002-1 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 take delivery of or deliver, as the case may be, the
principal amount of Series 2002-1 Notes purchased or sold pursuant to
an Auction or otherwise.
G-4
EXHIBIT H
TO AUCTION AGENT AGREEMENT
NOTICE OF CONTINUATION OF AUCTION PERIOD
EDUCATION LOANS INCORPORATED
STUDENT LOAN
ASSET-BACKED NOTES
SENIOR SERIES 2002-1A[B]
[SUBORDINATE SERIES 2002-1C]
NOTICE IS HEREBY GIVEN that a condition for the establishment of a
change in the length of one or more Auction Periods for the captioned Series
2002-1 Notes has not been met. An Auction will therefor be held on the next
Auction Date (___________________) and the length of such Auction Period shall
remain an Auction Period of _______ days.
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Auction Agent
By:__________________________________
Title:____________________________
Date:_____________________________
H-1
EXHIBIT I
TO AUCTION AGENT AGREEMENT
NOTICE OF SERIES 2002-1 NOTE AUCTION RATE
EDUCATION LOANS INCORPORATED
STUDENT LOAN
ASSET-BACKED NOTES
SENIOR SERIES 2002-1A[B]
[SUBORDINATE SERIES 2002-1C]
NOTICE IS HEREBY GIVEN that [the Corporation Certificate and the
Trustee written statements, if any,] [Sufficient Bids] necessary for the
establishment of a change in the length of one or more Auction Periods for the
captioned Series 2002-1 Notes have not been provided. The Series 2002-1 Note
Auction Rate for the Auction Period commencing on ______________ shall be the
[Maximum Auction Rate] [Net Loan Rate] and such Auction Period shall remain an
Auction Period of _____ days.
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Auction Agent
By:__________________________________
Title:____________________________
Date:_____________________________
I-1
