EXHIBIT 10.22
FORM OF BROKER-DEALER AGREEMENT
____________________________________________
between
THE BANK OF NEW YORK
as Auction Agent
and
[INSERT NAME OF BROKER-DEALER]
as Broker-Dealer
____________________________________________
Dated as of ____________
Relating to
$_________
COLLEGIATE FUNDING SERVICES EDUCATION LOAN TRUST 2003-_
STUDENT LOAN ASSET-BACKED NOTES
consisting of
Series 2003-_:
Class _-_ Auction Rate Notes
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TABLE OF CONTENTS
Page
1. Definitions and Rules of Construction.......................................................... 1
1.1. Terms Defined by Reference to the Indenture.................................................. 1
1.2. Terms Defined Herein......................................................................... 1
1.3. Rules of Construction........................................................................ 2
2. The Auction.................................................................................... 2
2.1 Purpose. Incorporation by Reference of Auction Procedures and Settlement Procedures.......... 2
2.2 Preparation for Each Auction................................................................. 3
2.3 Auction Schedule: Method of Submission of Orders............................................. 3
2.4. Notices...................................................................................... 5
2.5. Service Charge to Be Paid to BD.............................................................. 5
2.6 Settlement................................................................................... 6
2.7. Duties and Responsibilities of BD............................................................ 6
3. The Auction Agent.............................................................................. 7
3.1. Duties and Responsibilities of Auction Agent................................................. 7
3.2. Rights of the Auction Agent.................................................................. 7
3.3. The Auction Agent's Disclaimer............................................................... 9
4. Miscellaneous.................................................................................. 9
4.1. Termination.................................................................................. 9
4.2. Participant in Clearing Agency............................................................... 9
4.3. Communications............................................................................... 9
4.4. Entire Agreement............................................................................. 10
4.5. Benefits..................................................................................... 10
4.6. Amendment: Waiver............................................................................ 10
4.7. Successors and Assigns....................................................................... 11
4.8. Severability................................................................................. 11
4.9. Execution in Counterparts ................................................................... 11
4.10 Governing Law................................................................................ 11
Exhibit A Settlement Procedures A-1
Exhibit B Order Form B-1
Exhibit C Transfer Form C-1
Exhibit D Notice of a Failure to Deliver D-1
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Broker-Dealer Agreement (this "Agreement"), dated as of ____________
between THE BANK OF NEW YORK (together with its successors and assigns, the
"Auction Agent"), a New York banking corporation appointed as such pursuant to
the provisions of the Indenture of Trust, dated as of ____________ (the "Trust
Indenture") by and between Collegiate Funding Services Education Loan Trust
2003-_, a Delaware statutory trust, (the "Issuer"), U.S. Bank National
Association, as indenture trustee and eligible lender trustee (the "Trustee"),
and the respective Auction Procedures attached thereto as Annex 1 (collectively
referred to herein as the "Indenture "), pursuant to authority granted to it in
the Auction Agent Agreement between the Trustee and the Auction Agent
hereinafter defined, and [INSERT NAME OF BROKER-DEALER] (together with its
successors and assigns hereinafter referred to as "BD").
The Issuer proposes to issue certain of its Student Loan Asset-Backed
Notes as Auction Rate Notes (collectively, the "Notes") as follows: $________
aggregate principal amount of Class _-_ Senior Auction Rate Notes, pursuant to
the Indenture.
The Indenture provides that the interest rate on the Notes for each
Interest Accrual Period after the Initial Interest Accrual Period shall, except
as otherwise provided in the Indenture, equal the Auction Rate that the Auction
Agent advises has resulted on the Auction Date from the implementation of the
Auction Procedures. Pursuant to Section 2.9(a) or (b) of the Auction Agent
Agreement, the Auction Agent has entered into this 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 and BD agree as follows:
1. DEFINITIONS AND RULES OF CONSTRUCTION
1.1. TERMS DEFINED BY REFERENCE TO THE INDENTURE. Capitalized terms not
defined herein shall have the respective meanings specified in or pursuant to
the Indenture, including Annex 1thereto, and the Auction Agent Agreement.
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:
(a) "Auction" shall have the meaning specified in Section 2.1
hereof.
(b) "Auction Agent Agreement" shall mean the Auction Agent
Agreement, dated as of November 1, 2003, among the Issuer, the Trustee and
the Auction Agent relating to the Notes.
(c) "Auction Procedures" shall mean the Auction Procedures as
defined in Annex 1 to the Indenture.
(d) "Authorized Officer" shall mean, with respect to the Auction
Agent, each Vice President, Assistant Vice President and Assistant
Treasurer of the Auction Agent assigned to the Dealing and Trading Group
or its Corporate Trust & Agency Division,
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and every other officer or employee of the Auction Agent designated as an
"Authorized Officer" for purposes of this Agreement in a written
communication to BD.
(e) "BD Officer" shall mean each officer or employee of BD
designated as a "BD Officer" for purposes of this Agreement in a
communication to the Auction Agent.
(f) "Settlement Procedures" shall mean the Settlement Procedures
attached hereto as Exhibit A.
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 Agreement:
(a) Words importing the singular number shall include the plural
number and vice versa.
(b) The captions and headings herein are solely for convenience of
reference and shall not constitute a part of this Agreement nor shall they
affect its meaning, construction or effect.
(c) The words "hereof," "herein, " "hereto, " and other words of
similar import refer to this Agreement as a whole.
(d) In case of any conflict between the provisions of this Agreement
and the provisions of the Auction Procedure, the Auction Procedures shall
control.
(e) All references herein to a particular time of day shall be to
New York City time.
2. THE AUCTION
2.1 Purpose. Incorporation by Reference of Auction Procedures and
Settlement Procedures.
(a) On each Auction Date for a class of Notes, the provisions of the
Auction Procedures will be followed by the Auction Agent for the purpose
of determining the Auction Note Interest Rate for such class for the next
Interest Accrual Period. Each periodic operation of such implementation is
hereinafter referred to as an "Auction."
(b) All of the provisions contained in the Auction Procedures and
the Settlement Procedures are incorporated herein by reference in their
entirety and shall be deemed to be a part of this Agreement to the same
extent as if such provisions were fully set forth herein. With respect to
the Auction Agent's duties hereunder, in the case of any conflict between
the terms of any document incorporated herein by reference and the terms
hereof, the Auction Agent is, subject to its obligations as set forth in
Section 3, authorized to perform its duties according to the terms hereof,
and shall have no liability for so doing.
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(c) BD agrees to act as, and assumes the obligations of and
limitations and restrictions placed upon, a Broker-Dealer under this
Agreement. BD understands that other persons meeting the requirements
specified in the definition of "Broker-Dealer" contained in Annex 1 of the
Indenture may execute Broker-Dealer Agreements and participate as
Broker-Dealers in Auctions.
(d) BD and other Broker-Dealers may participate in Auctions for
their own accounts. However, the Issuer may, by notice to BD and all other
Broker-Dealers given no later than 3:00 P.M. on the Business Day next
preceding an Auction, prohibit all (but not less than all) Broker-Dealers
from submitting Bids for their own account in such Auction and, if so
specified in such notice, all future Auctions until such notice is
withdrawn, but the Broker-Dealers may continue to submit Hold and Sell
orders for their own accounts and Bids on behalf of customers. The Auction
Agent shall have no duty or liability with respect to enforcement of this
subsection.
2.2 Preparation for Each Auction.
(a) Not later than 9:30 A.M. on each Auction Date for a class of
Notes, the Auction Agent shall advise BD by telephone of the Maximum Rate,
the Net Loan Rate, the All Hold Rate, the Non-Payment Rate (if applicable)
and the Applicable LIBOR Rate.
(b) In the event that the Auction Date for any Auction for a class
of Notes shall be changed after the Auction Agent has been given the
notice referred to in Section 2.02(h) of the Auction Procedures, the
Auction Agent, by such means as the Auction Agent deems practicable, shall
give notice of such change to BD not later than the earlier of 9:15 A.M.
on the new Auction Date and 9:15 A.M. on the old Auction Date. Thereafter,
BD shall promptly notify customers of BD that BD believes are Existing
Owners of such change in the Auction Date.
(c) The Auction Agent from time to time may but shall not be
obligated to request BD to provide it with a list of the respective
customers BD believes are Existing Owners of the Notes and the aggregate
principal amounts of Notes specifically owned by each such customer. BD
shall comply with any such request, and the Auction Agent shall keep
confidential any such information, including information received as to
the identity of Bidders in any Auction, and shall not disclose any such
information so provided to any person other than the Trustee, the Issuer
and BD, provided that the Auction Agent reserves the right to disclose,
any such information if it is advised by its counsel that such failure
would be unlawful or would subject the Auction Agent to liability for
which it has not received indemnity satisfactory to it; provided, however,
that the Auction Agent reserves the right and is authorized to disclose
any such information if (a) it is ordered to do so by a court of competent
jurisdiction or a regulatory body, judicial or quasi-judicial agency or
authority having the authority to compel such disclosure, (b) it is
advised by its counsel that its failure to do so would be unlawful or (c)
failure to do so would expose the Auction Agent to loss, liability, claim,
damage or expense for which it has not received indemnity or security
satisfactory to it.
2.3 Auction Schedule: Method of Submission of Orders.
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(a) The Auction Agent shall conduct Auctions for the applicable
class of Notes in accordance with the schedule set forth below. Such
schedule may be changed at any time by the Auction Agent with consent of
the Trustee, at the direction of the Issuer, which consent shall not be
unreasonably withheld or delayed. The Auction Agent shall give written
notice of any such change to BD. Such notice shall be received prior to
the close of business on the Business Day next preceding the first Auction
Date for that class of Notes on which any such change shall be effective.
Time Event
---------------------------- -----------------------------------------------
By 9:30 A.M. Auction Agent obtains the Maximum Rate, the All
Hold Rate, the Applicable LIBOR Rate and the
Net Loan Rate. Auction Agent notifies the
Trustee and the Broker-Dealers of the Maximum
Rate, the All Hold Rate, the Net Loan Rate and
the Applicable LIBOR Rate
9:30 A.M.-1:00 P.M. Auction Agent assembles information
communicated to it by Broker-Dealers as
provided in the Auction Procedures. Submission
Deadline is 1:00 P.M.
Not earlier than 1:00 Auction Agent makes determinations pursuant to
P.M the Auction Procedures.
Submitted Bids and Submitted Sell Orders are
accepted and rejected in whole or in part and
principal amounts of Notes are allocated as
provided in the Auction Procedures. Auction
Agent gives notice of Auction results as set
forth in Section 2.4(a) hereof.
By approximately 3:30 Auction Agent advises the Trustee of the
P.M., but no later than Auction Note Interest Rate for the next
the close of business Interest Accrual Period and of results of the
Auction as provided in the Auction Procedures.
(b) BD agrees to maintain a list of Potential Owners and to contact
the Potential Owners on such list on or prior to each Auction Date for the
purpose of participating in the Auction on such Auction Date.
(c) BD shall submit Orders to the Auction Agent in writing in
substantially the form attached hereto as Exhibit B.
(d) BD shall deliver to the Auction Agent (i) a written notice,
substantially in the form attached hereto as Exhibit C, of transfers of
Notes, made through BD by an Existing Owner to another person other than
pursuant to an Auction and (ii) a written notice, in substantially the
form attached hereto as Exhibit D, of the failure of any Notes to be
transferred to or by any person that purchased or sold Notes through BD
pursuant to an Auction. The Auction Agent is not required to give effect
to any notice with respect to an Auction unless it is received by the
Auction Agent by 3:00 P.M. on the Business Day next preceding the
applicable Auction Date.
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(e) BD agrees to handle its customers' Orders in accordance with its
duties under applicable securities laws and rules.
(f) Prior to or concurrently with the execution and delivery of the
Auction Agent Agreement, BD shall provide the Auction Agent with a list of
the Existing Owners of the Notes who have agreed to purchase such Notes
through BD, if any. In order to verify the accuracy and authenticity of
the lists of Existing Owners so provided, the Auction Agent may confirm
those lists of the Existing Owners to the respective Broker-Dealers who
provided the original lists within 10 Business Days of the Auction Agent's
receipt thereof.
2.4. Notices.
(a) On each Auction Date for a class of Notes, the Auction Agent
shall notify BD by telephone or other electronic communication acceptable
to the parties of the results of the Auction as set forth in paragraph (a)
of the Settlement Procedures. By approximately 10:30 A.M. on the Business
Day next succeeding such Auction Date, the Auction Agent shall notify BD
in writing, if previously so requested, of the disposition of all Orders
submitted by BD in the Auction held on such Auction Date.
(b) BD shall notify each Existing Owner or Potential Owner on whose
behalf BD has submitted an Order as set forth in paragraph (b) of the
Settlement Procedures and take such other action as is required of BD
pursuant to the Settlement Procedures.
(c) The Auction Agent shall deliver to BD after receipt all notices
and certificates which the Auction Agent is required to deliver to BD
pursuant to Section 2 of the Auction Agent Agreement at the times and in
the manner set forth in the Auction Agent Agreement.
2.5. Service Charge to Be Paid to BD.
(a) On each Auction Rate Distribution Date for the Notes, for the
term of this Agreement, the Issuer shall pay to the applicable
Broker-Dealer as set forth in Section 5.03(c) of the Indenture an amount
equal to the product of (i) a fraction, the numerator of which is the
number of days in the related Interest Accrual Period (or in the case of
the initial period, the actual number of days elapsed since the date of
delivery of the Notes) and the denominator of which is 360 days times (ii)
the Broker-Dealer Fee Rate times (iii) the sum of (A) the sum of the
aggregate principal amount of the Notes placed by BD in all Auctions held
since the last Auction Rate Distribution Date that were (1) the subject of
Submitted Bids of Existing Owners submitted by BD and continued to be held
as a result of such submission and (2) the subject of Submitted Bids of
Potential Owners submitted by BD and purchased as a result of such
submission and (B) the aggregate principal amount of the Notes subject to
valid Hold Orders (determined in accordance with the Auction Procedures)
submitted to the Auction Agent by BD and (C) the principal amount of the
Notes deemed to be subject to Hold Orders by Existing Owners pursuant to
the Auction Procedures that were acquired by such Existing Owners through
BD, divided by (iv) the sum of the aggregate principal amount of the Notes
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auctioned since the last Auction Rate Distribution Date divided by the
aggregate principal amount of Notes outstanding at the beginning of such
period. For purposes of subclause (iii)(C) of the foregoing sentence, if
any Existing Owner who acquired Notes through BD transfers those Notes to
another person other than pursuant to an Auction, then the Broker-Dealer
for the Notes so transferred shall continue to be BD; provided, however,
that if the transfer was effected by, or if the transferee is, a
Broker-Dealer other than BD, then such Broker-Dealer shall be the
Broker-Dealer for such Notes. If for any reason an Auction is not held on
an Auction Date, there shall be no Broker-Dealer Fee applicable with
respect to such Auction Date.
(b) The Broker-Dealer Fee Rate shall be 0.25% per annum.
2.6 Settlement.
(a) If any Existing Owner on whose behalf BD has submitted a Bid or
Sell Order for Notes that was accepted in whole or in part fails to
instruct its Participant to deliver the Notes subject to such Bid or Sell
Order against payment therefor, BD shall instruct such Participant to
deliver such Notes against payment therefor and BD may deliver to the
Potential Owner on whose behalf BD submitted a Bid that was accepted in
whole or in part a principal amount of the Notes that is less than the
principal amount of the Notes specified in such Bid to be purchased by
such Potential Owner. Notwithstanding the foregoing terms of this Section
2.6(a), any delivery or non-delivery of Notes which represents any
departure from the results of an Auction, as determined by the Auction
Agent, shall be of no effect unless and until the Auction Agent shall have
been notified of such delivery or non-delivery in accordance with the
terms of Section 2.3(d) hereof. The Auction Agent shall have no duty or
liability with respect to monitoring or enforcing requirements of this
Section 2.6(a).
(b) Neither the Auction Agent, the Trustee nor the Issuer shall have
any responsibility or liability with respect to the failure of an Existing
Owner, a Potential Owner or a Participant or any of them to deliver Notes
or to pay for Notes sold or purchased pursuant to the Auction Procedures
or otherwise. The Auction Agent shall have no responsibility for any
adjustment to fees paid pursuant to Section 2.5 hereof as a result of any
failure described in this Section 2.6(b).
2. 7. Duties and Responsibilities of BD.
(a) BD undertakes to perform such duties and only such duties as are
specifically set forth in this Agreement, and no implied covenants or
obligations shall be read into this Agreement, the Auction Agent
Agreement, the Auction Procedures or the Settlement Procedures against BD.
(b) In the absence of gross negligence or willful misconduct on its
part, BD shall not be liable for any action taken, suffered or omitted or
for any error of judgment made by it in the performance of its duties
under this Agreement. BD shall not be liable for any error resulting from
the use or reliance on a source of information used in good faith and
without gross negligence to make any determination, calculation or
declaration hereunder. BD shall not be liable for any error or judgment
made in good faith unless BD
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shall have been grossly negligent in ascertaining or failing to ascertain
the pertinent facts. In no event shall BD be liable for special, punitive,
indirect or consequential loss or damage of any kind whatsoever (including
but not limited to lost profits), even if BD has been advised of the
likelihood of such loss or damage and regardless of the form of action.
(c) BD shall not be: (i) required to, and does not, make any
representations or have any responsibilities as to the validity, accuracy,
value or genuineness of any signatures or endorsements, other than its
own; (ii) obligated to take any legal action hereunder that might, in its
judgment, involve any expense or liability, unless it has been furnished
with indemnity satisfactory to DB; and (iii) responsible for or liable in
any respect on account of the identity, trust or rights of any Person
(other than itself and its agents and attorneys) executing or delivering
or purporting to execute or deliver any document under this Agreement or
any Broker-Dealer Agreement.
(d) BD shall not be responsible or liable for failure or delay in
the performance of its obligations under this Agreement arising out of or
caused, directly or indirectly, by circumstances beyond its reasonable
control, including, without limitation, acts of God; earthquakes, fires;
floods; wars; civil or military disturbances; sabotage; epidemics; riots;
interruptions, loss or malfunctions of utilities, internet or
communication services; acts of civil or military authority; or
governmental actions; it being understood that BD shall use reasonable
efforts which are consistent with accepted practices in the banking
industry to resume performance as soon as practicable under the
circumstances.
3. THE AUCTION AGENT
3.1. Duties and Responsibilities of Auction Agent.
(a) The Auction Agent is acting solely as a non-fiduciary agent for
the Issuer hereunder and has no duties to any other person and owes no
fiduciary duties to any person by reason of this Agreement.
(b) The Auction Agent undertakes to perform such duties and only
such duties as are specifically set forth in this Agreement, and no
implied duties, covenants or obligations, fiduciary or otherwise, shall be
read into this Agreement, the Auction Procedures or any Broker-Dealer
Agreement against the Auction Agent.
(c) In the absence of bad faith or negligence on its part, the
Auction Agent shall not be liable for any action taken, suffered, or
omitted or for any error of judgment made by it in the performance of its
duties under this Agreement. The Auction Agent shall not be liable for any
error of judgment made in good faith unless the Auction Agent shall have
been negligent in ascertaining (or failing to ascertain) the pertinent
facts.
3.2. Rights of the Auction Agent.
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(a) The Auction Agent may conclusively rely, and shall be fully
protected in acting or refraining from acting, upon any communication
authorized by this Agreement and upon any written instruction, notice,
request, direction, consent, report, certificate, 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 or other electronic communication acceptable
to the parties this Agreement which the Auction Agent reasonably believes
to have been given by the Trustee or by a Broker-Dealer or by their
designated agents or representatives. To the extent permitted by law, 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 the negligence and misconduct of any agents,
attorneys, custodians or nominees appointed with due care hereunder.
(e) The Auction Agent shall have no obligation or liability in
respect of the registration or exemption therefrom of the Notes under
federal or state securities laws or in respect of the sufficiency or the
conformity of any transfer of Notes to the terms of this Agreement, any
Auction Agent Agreement, the Indenture (including Annex 1 thereto), the
Auction Procedures or any other document contemplated therein or thereby.
(f) The Auction Agent shall: (i) not be required to and shall make
no representations and have no responsibilities as to the validity,
accuracy, value or genuineness of any signatures or endorsements, other
than its own; (ii) not be obligated to take any legal action hereunder
that might, in its judgment, involve any expense or liability, unless it
has been furnished with indemnity satisfactory to it; and (iii) not be
responsible for or liable in any respect on account of identity, authority
or rights of any person executing or delivering or purporting to execute
or deliver any document under this Agreement unless the Authorized Officer
of the Auction Agent had actual knowledge that such person was not
authorized or entitled to execute or deliver such document.
(g) The Auction Agent shall not be responsible or liable for any
failure or delay in the performance of its obligations under this
agreement arising our of or caused, directly or indirectly, by
circumstances beyond its reasonable control, including, without
limitation, acts of God; earthquakes; fires; floods; wars; civil or
military disturbances; sabotage; acts of terrorism; epidemics; riots;
interruptions, loss or malfunctions or utilities; computer (hardware or
software) or communications services; accidents; labor disputes; acts of
civil or military authority or governmental actions; it being understood
that the Auction Agent shall use reasonable efforts which are consistent
with accepted practices in the banking industry to resume performance as
soon as practicable under the circumstances.
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(h) In no event shall the Auction Agent be responsible or liable for
special, indirect or consequential loss or damage of any kind whatsoever
(including, but not limited to, loss of profit), even if the Auction Agent
has been advised of the likelihood of such loss or damage and regardless
of the form of action.
3.3. 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, the
Notes, any offering document used to make offers or sales thereof or any other
agreement or instrument executed in connection with the transactions
contemplated therein.
4. MISCELLANEOUS
4.1. Termination. Broker-Dealer may terminate this Agreement at any time
upon thirty days prior notice to the other party. The Auction Agent shall
terminate this Agreement only upon receipt of written instructions from the
Broker-Dealer to do so. This Agreement shall automatically terminate upon the
delivery of notes representing the Notes pursuant to the Auction Procedures or
upon termination of the Auction Agent Agreement.
4.2. Participant in Clearing Agency. Either (i) BD is, and shall remain
for the term of this Agreement, a member of, or Participant in, the Clearing
Agency, or (ii) BD may designate a Participant to act on BD's behalf for
purposes of this Agreement. If BD wishes to designate a different Participant to
act on its behalf, BD shall give the Auction Agent at least two Business Day's
prior notice thereof.
4.3. Communications. Except for (i) communications authorized to be made
by telephone pursuant to this Agreement or the Auction Procedures and (ii)
communications in connection with the Auctions (other than those expressly
required to be in writing), all notices, requests and other communications to
any party hereunder shall be in writing (including facsimile or similar writing)
and shall be given to such party, addressed to it, at its address or facsimile
number set forth below:
If to BD, addressed:
[NOTICE INFORMATION OF BD]
If to the Auction Agent, addressed:
The Bank of New York
000 Xxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Corporate Trust Division - Dealing
and Trading Group - Auction Desk
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Issuer, addressed:
Collegiate Funding Services Education Loan Trust 2003-_
c/o Wilmington Trust Company
Xxxxxx Square North
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0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Trust Administration
Telephone: 000-000-0000
Telecopy: 000-000-0000
With a copy to:
Collegiate Funding Services L.L.C.
000 Xxxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxxxxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
or such other address or facsimile number as such party may hereafter specify
for such purpose by notice to the other party. Each such notice, request or
communication shall be effective when delivered at the address specified herein.
Communications shall be given on behalf of BD by a BD Officer and on behalf of
the Auction Agent by an Authorized Officer. BD may record telephone
communications with the Auction Agent.
4.4. Entire Agreement. This 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.
4.5. Benefits. Nothing in this Agreement, express or implied, shall give
to any person, other than the Trustee, the Auction Agent and BD and their
respective successors and assigns, any benefit of any legal or equitable right,
remedy or claim under this Agreement.
4.6. Amendment: Waiver.
(a) This Agreement shall not be deemed or construed to be modified,
amended, rescinded, cancelled or waived, in whole or in part, except by a
written instrument signed by a duly authorized representative of each
party hereto. The provisions herein regarding Auction Procedures may be
amended from time to time to conform to industry or market practices
solely upon the written consent of the parties hereto and upon written
notice of such amendment to the affected Note Owners of such Notes and no
prior written consent of any such Note Owner shall be required in
connection with such amendment.
(b) Failure of either party to this Agreement to exercise any right
or remedy hereunder in the event of a breach of this Agreement by the
other party shall not constitute a waiver of any such right or remedy with
respect to any subsequent breach.
4. 7. Successors and Assigns. This Agreement shall be binding upon, inure
to the benefit of, and be enforceable by, the respective successors and
permitted assigns of each of BD and the Auction Agent. This Agreement may not be
assigned by either party hereto absent the prior written consent of the other
party; provided, however, that this Agreement may be assigned
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by the Auction Agent to a successor Auction Agent selected by the Trustee at the
direction of the Issuer without the consent of BD.
4.8. Severability. If any clause, provision or section of this Agreement
shall be ruled invalid or unenforceable by any court of competent jurisdiction,
the invalidity or unenforceability of such clause, provision or section shall
not affect any remaining clause, provision or section hereof.
4.9. Execution in Counterparts. This Agreement may be executed in several
counterparts, each of which shall be an original and all of which shall
constitute but one and the same instrument.
4.10. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without regard to conflicts
of laws principles thereof. Each party hereby consents to the jurisdiction of a
state or federal court situated in New York City, New York in connection with
any dispute arising hereunder. Each party hereby irrevocably waives, to the
fullest extent permitted by applicable law, any objection which it may now or
hereafter have to the laying of venue of any such proceeding brought in such a
court and any claim that such proceeding brought in such a court has been
brought in an inconvenient forum. Each party each hereby irrevocably waives any
and all rights to trial by jury in any legal proceeding arising out of or
relating to this Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed and delivered by their proper and duly authorized officers as of the
date first above written.
THE BANK OF NEW YORK,
as Auction Agent
By: __________________________
Name:_____________________
Title:____________________
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BROKER-DEALER AGREEMENT EXECUTION PAGE
FOR BROKER-DEALER
[NAME OF BROKER-DEALER],
as Broker Dealer
By: ____________________________
Name:_______________________
Title: _____________________
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EXHIBIT A TO BROKER-DEALER AGREEMENT
Settlement Procedures
AUCTION RATE NOTE SETTLEMENT
PROCEDURES
Capitalized terms used herein shall have the respective meanings specified
in the Indenture, including Annex 1 thereto, and the Auction Procedures. These
settlement procedures apply to all Notes except as may otherwise be specified
with respect to a Series in the related Indenture.
(a) Not later than 3:00 p.m. on each Auction Date for a class of
Notes, the Auction Agent is required to notify by telephone the
Broker-Dealers that participated in the Auction held on such Auction Date
and submitted an Order on behalf of any Existing Note Owner or Potential
Note Owner of:
(i) the Applicable Auction Rate fixed for the next Interest
Accrual Period;
(ii) whether there were Sufficient Clearing Bids in such
Auction;
(iii) if such Broker-Dealer (a "Seller's Broker-Dealer")
submitted a Bid or a Sell Order on behalf of an Existing Note Owner,
whether such Bid or Sell Order was accepted or rejected, in whole or
in part, and the principal amount of Notes, if any, to be sold by
such Existing Note Owner;
(iv) if such Broker-Dealer (a "Buyer's Broker-Dealer")
submitted a Bid on behalf of a Potential Note Owner, whether such
Bid was accepted or rejected, in whole or in part, and the principal
amount of Notes, if any, to be purchased by such Potential Note
Owner;
(v) if the aggregate principal amount of Notes to be sold by
all Existing Note Owners on whose behalf such Broker-Dealer
submitted Bids or Sell Orders is different from the aggregate
principal amount of Notes to be purchased by all Potential Note
Owners on whose behalf such Broker-Dealer submitted a Bid, the name
or names of one or more other Buyer's Broker-Dealers (and the
Participant, if any, of each such other Buyer's Broker-Dealer)
acting for one or more purchasers of such excess principal amount of
Notes and the principal amount of Notes to be purchased from one or
more Existing Note Owners on whose behalf such Broker-Dealer acted
by one or more Potential Note Owners on whose behalf each of such
other Buyer's Broker-Dealers acted; and
(vi) if the principal amount of Notes to be purchased by all
Potential Note Owners on whose behalf such Broker-Dealer submitted a
Bid exceeds the amount of Notes to be sold by all Existing Note
Owners on whose behalf such Broker-Dealer submitted a Bid or a Sell
Order, the name or names of one or more Seller's Broker-Dealers (and
the name of the agent member, if any, of each such Seller's
Broker-Dealer) acting for one or more sellers of such excess
principal amount of Notes and the principal amount of Notes to be
sold to one or more Potential Note Owners on whose behalf such
Broker-Dealer acted by one or more
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Existing Note Owners on whose behalf each of such Seller's
Broker-Dealers acted;
(vii) unless previously provided, a list of all Auction Rates
and related Interest Accrual Periods (or portions thereof) since the
last Series Payment Date; and
(viii) 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 Note Owner or Potential Note Owner shall:
(i) advise each Existing Note Owner and Potential Note Owner
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) instruct each Potential Note Owner on whose behalf such
Broker-Dealer submitted a Bid that was accepted, in whole or in
part, to instruct such Bidder's Participant to pay to such
Broker-Dealer (or its Participant) through the Clearing Agency the
amount necessary to purchase the principal amount of Notes to be
purchased pursuant to such Bid against receipt of such principal
amount of Notes;
(iii) in the case of a Broker-Dealer that is a Seller's
Broker-Dealer, instruct each Existing Note Owner on whose behalf
such 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 Note Owner's Participant to deliver to
such Broker-Dealer (or its Participant) through the Clearing Agency
the principal amount of Notes to be sold pursuant to such Bid or
Sell Order against payment therefor;
(iv) advise each Existing Note Owner on whose behalf such
Broker-Dealer submitted an Order and each Potential Note Owner on
whose behalf such Broker-Dealer submitted a Bid of the Applicable
Auction Rate for the next Interest Accrual Period;
(v) advise each Existing Note Owner on whose behalf such
Broker-Dealer submitted a Bid that was accepted, in whole or in
part, of the next Auction Date; and
(vi) advise each Potential Note Owner 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 pursuant to
paragraph (b)(ii) above, and any Notes received by it pursuant to
paragraph (b)(iii) above, among the Potential Note Owners, if any, on
whose behalf such Broker-Dealer submitted Bids, the Existing Note Owners,
if any, on whose behalf such Broker-Dealer submitted Bids or Sell Orders
in such Auction,
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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 for a class of Notes:
(i) each Potential Note Owner and Existing Note Owner with an
Order in the Auction on such Auction Date shall instruct its
Participant as provided in (b)(ii) or (b)(iii) above, as the case
may be;
(ii) each Seller's Broker-Dealer that is not a Participant in
the Clearing Agency shall instruct its Participant to (A) pay
through the Clearing Agency to the Participant of the Existing Note
Owner delivering Notes to such Broker-Dealer following such Auction
pursuant to (b)(iii) above the amount necessary, including accrued
interest, if any, to purchase such Notes against receipt of such
Notes, and (B) deliver such Notes through the Clearing Agency to a
Buyer' s Broker-Dealer (or its Participant) identified to such
Seller's Broker-Dealer pursuant to (a)(v) above against payment
therefor; and
(iii) each Buyer's Broker-Dealer that is not a Participant in
the Clearing Agency shall instruct its Participant to (A) pay
through the Clearing Agency to a Seller's Broker-Dealer (or its
Participant) identified following such Auction pursuant to (a)(vi)
above the amount necessary, including accrued interest, if any, to
purchase the Notes to be purchased pursuant to (b)(ii) above against
receipt of such Notes, and
(e) deliver such Notes through the Clearing Agency to the
Participant of the purchaser thereof against payment therefor.
(f) On the first Business Day of the Interest Accrual Period next
succeeding each Auction Date:
(i) each Participant for a Bidder in the Auction on such
Auction Date referred to in (d)(i) above shall instruct the Clearing
Agency to execute the transactions described under (b)(ii) or
(b)(iii) above for such Auction, and the Clearing Agency shall
execute such transactions;
(ii) each Seller's Broker-Dealer or its Participant shall
instruct the Clearing Agency to execute the transactions described
in (d)(ii) above for such Auction, and the Clearing Agency shall
execute such transactions; and
(iii) each Buyer's Broker-Dealer or its Participant shall
instruct the Clearing Agency to execute the transactions described
in (d)(iii) above for such Auction, and the Clearing Agency shall
execute such transactions.
(g) If an Existing Note Owner selling Notes in an Auction fails to
deliver such Notes (by authorized Book-Entry), a Broker-Dealer may deliver
to the Potential Note Owner on behalf of which it submitted a Bid that was
accepted a principal amount of Notes that is less than the principal
amount of Notes that otherwise was to be purchased by such Potential Note
Owner. In such event, the principal amount of Notes to be so delivered
shall be determined solely by such Broker-Dealer. Delivery of such lesser
principal amount of Notes shall constitute good delivery. Notwithstanding
the foregoing
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terms of this paragraph (f), any delivery or nondelivery of 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 and the
Broker-Dealer Agreement.
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