Exhibit 4.4
Broker-Dealer Agreement dated as of February 1, 2004
BROKER-DEALER AGREEMENT
BETWEEN
DEUTSCHE BANK TRUST COMPANY AMERICAS,
AS AUCTION AGENT
AND
RBC XXXX XXXXXXXX INC.,
AS BROKER-DEALER
DATED AS OF FEBRUARY 1, 2004
RELATING TO
EDUCATION LOANS INCORPORATED
STUDENT LOAN ASSET-BACKED NOTES
SENIOR SERIES 2004-A1, A2, A3, A4 AND A5
AND
SUBORDINATE SERIES 2004-B1
Broker-Dealer Agreement dated as of February 1, 2004
BROKER-DEALER AGREEMENT
This BROKER-DEALER AGREEMENT (the "Broker Dealer Agreement"), dated as
of February 1, 2004, is by and between DEUTSCHE BANK TRUST COMPANY AMERICAS, a
New York banking corporation (together with its successors and assigns, the
"Auction Agent"), pursuant to authority granted to it in the Auction Agent
Agreement, defined below, acting not in its individual capacity, but solely as
agent for Education Loans Incorporated (the "Corporation"), a Delaware
corporation and RBC XXXX XXXXXXXX INC. (together with its respective successors
and assigns, the "Broker-Dealer").
RECITALS
The Corporation proposes to cause the Trustee, defined below, to
authenticate and deliver $83,900,000 aggregate principal amount of its Student
Loan Asset-Backed Notes, Senior Series 2004-A1 (the "Series 2004-A1 Notes"),
$83,900,000 aggregate principal amount of its Student Loan Asset-Backed Notes,
Senior Series 2004-A2 (the "Series 2004-A2 Notes"), $83,900,000 aggregate
principal amount of its Student Loan Asset-Backed Notes, Senior Series 2004-A3
(the "Series 2004-A3 Notes"), $83,900,000 aggregate principal amount of its
Student Loan Asset-Backed Notes, Senior Series 2004-A4 (the "Series 2004-A4
Notes"), $83,900,000 aggregate principal amount of its Student Loan Asset-Backed
Notes, Senior Series 2004-A5 (the "Series 2004-A5 Notes," and together with the
Series 2004-A1 Notes, the Series 2004-A2 Notes, with the Series 2004-A3 Notes
and the Series 2004-A4 Notes, the "Series 2004-1 Senior Notes"), and $42,500,000
aggregate principal amount of its Student Loan Asset-Backed Notes, Subordinate
Series 2004-B1 (the "Series 2004-B1 Notes," and together with the Series 2004-1
Senior Notes, the "Series 2004-1 Notes"). The Series 2004-1 Notes are being
issued under the First Supplemental Indenture of Trust, dated as of February 1,
2004 (the "First Supplemental Indenture"), executed in accordance with the
Indenture of Trust, dated as of February 1, 2004 (the "Indenture"), each between
the Corporation and U.S. Bank National Association (together with its successors
and assigns, the "Trustee"). The Series 2004-1 Notes are being issued as
adjustable rate securities.
The First Supplemental Indenture provides that the Series 2004-1 Note
Auction Rate for each Interest Period after the Initial Interest Period shall
equal the lesser of the Net Loan Rate and the Auction Rate, but in no event
shall exceed 18% per annum with respect to the Series 2004-1 Notes.
Pursuant to Section 2.9(a) of the Auction Agent Agreement, dated as of
February 1, 2004, among the Trustee, the Auction Agent and the Corporation (the
"Auction Agent Agreement"), the Trustee has directed the Auction Agent to
execute and deliver this Broker-Dealer Agreement.
The Auction Procedures require the participation of one or more
Broker-Dealers.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the Auction Agent, as agent of the Corporation,
and the Broker-Dealer agree as follows:
Broker-Dealer Agreement dated as of February 1, 2004
Section 1. Definitions and Rules of Construction
-------------------------------------
1.1. Terms Defined by Reference to the First Supplemental Indenture
--------------------------------------------------------------
Capitalized terms used herein and not otherwise defined herein shall
have the meanings given such terms in the First Supplemental Indenture.
1.2. Terms Defined Herein
--------------------
As used herein and in the Settlement Procedures, defined below, the
following terms shall have the following meanings, unless the context otherwise
requires:
"Applicable Series 2004-1 Note Auction Rate" shall mean the Series
2004-1 Note Auction Rate as defined in the First Supplemental Indenture.
"Authorized Officer" shall mean, with respect to the Auction Agent,
each Managing Director, Vice President, Assistant Vice President, and Associate
assigned to its Trust and Securities Services and every other officer or
employee of the Auction Agent designated as an "Authorized Officer" for purposes
of this Agreement in a communication to the Broker-Dealer.
"Broker-Dealer Officer" shall mean each officer or employee of the
Broker-Dealer designated as a "Broker-Dealer Officer" for purposes of this
Broker-Dealer Agreement in a communication to the Auction Agent.
"Beneficial Owner" shall mean a beneficial owner of any of the Series
2004-1 Notes.
"Notice of Failure to Deliver or Make Payment" shall mean a notice
substantially in the form of Exhibit D hereto.
"Notice of Transfer" shall mean a notice substantially in the form of
Exhibit C hereto.
"Order Form" shall mean the form to be submitted by any Broker-Dealer
on or prior to any Auction Date substantially in the form of Exhibit B hereto.
"Settlement Procedures" shall mean the Settlement Procedures attached
hereto as Exhibit A.
1.3. Rules of Construction
---------------------
Unless the context or use indicate another or different meaning or
intent, the following rules shall apply to the construction of this Agreement;
(a) Words importing the singular number shall include the plural
number and vice versa.
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Broker-Dealer Agreement dated as of February 1, 2004
(b) The captions and headings herein are solely for convenience of
reference and shall not constitute a part of this Agreement nor, shall they
affect its meaning, construction or effect.
(c) The words "hereof," "herein," "hereto," and other words of
similar import refer to this Broker-Dealer Agreement as a whole.
(d) All references herein to a particular time of day shall be to
New York City time.
(e) The rights and duties of the Broker-Dealer and the Auction Agent
under this Broker-Dealer Agreement shall apply to all series of the Series
2004-1 Notes, but separately. References to "Series 2004-1 Notes," unless the
context clearly contemplates a reference to all Series 2004-1 Notes, shall refer
only to the Series 2004-A1 Notes as to rights and duties regarding Series
2004-A1 Notes; only to the Series 2004-A2 Notes as to rights and duties
regarding Series 2004-A2 Notes; only to the Series 2004-A3 Notes as to rights
and duties regarding Series 2004-A3 Notes; only to the Series 2004-A4 Notes as
to rights and duties regarding Series 2004-A4 Notes; only to the Series 2004-A5
Notes as to rights and duties regarding Series 2004-A5 Notes; and only to the
Series 2004-B1 Notes as to rights and duties regarding Series 2004-B1 Notes.
Section 2. The Auction
-----------
2.1. Incorporation by Reference of Auction Procedures and Settlement
---------------------------------------------------------------
Procedures
----------
(a) On each Auction Date, the provisions of the Auction Procedures
will be followed by the Auction Agent for the purpose of determining the
Applicable Series 2004-1 Note Auction Rate for each Auction Period after the
Initial Interest Period. Each periodic operation of such procedures is
hereinafter referred to as an "Auction".
(b) All of the provisions contained in the Auction Procedures and
the Settlement Procedures are incorporated herein by reference in their entirety
and shall be deemed to be a part of this Broker-Dealer Agreement to the same
extent as if such provisions were fully set forth herein.
(c) The Broker-Dealer and other Broker-Dealers may participate in
Auctions for their own accounts.
2.2. Preparation for Each Auction
----------------------------
(a) Not later than 9:30 A.M. on each Auction Date for the Series
2004-1 Notes, the Auction Agent shall advise the Broker-Dealer by telephone of
the All Hold Rate, the Maximum Auction Rate, the Net Loan Rate and the One-month
LIBOR or the Three-month LIBOR, as the case may be.
(b) If the Auction Date for any Auction shall be changed after the
Auction Agent has given notice of such Auction Date pursuant to clause (vii) of
paragraph (a) of the
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Broker-Dealer Agreement dated as of February 1, 2004
Settlement Procedures, the Auction Agent, by telephone (confirmed in writing),
telecopy or such other means as the Auction Agent deems practicable, shall give
notice of such change to the Broker-Dealer not later than the earlier of 9:15
A.M. on the new Auction Date and 9:15 A.M. on the old Auction Date. Thereafter,
the Broker-Dealer shall use its best efforts to promptly notify its customers
who are Existing Holders of such change in the Auction Date.
(c) From time to time upon request of the Auction Agent pursuant to
Section 2.2(d) of the Auction Agent Agreement, the Broker-Dealer shall provide
the Auction Agent with a statement of the aggregate amount of each series of
Series 2004-1 Notes held by the Broker-Dealer as an Existing Holder for its own
account or otherwise, as well as with a list of the Broker-Dealer's customers
that the Broker-Dealer believes are Existing Holders of either series of the
Series 2004-1 Notes (listed by series) and the aggregate principal amount of
each series of Series 2004-1 Notes beneficially owned by each such customer.
Except as permitted by Section 2.10 of the Auction Agent Agreement, the Auction
Agent shall keep confidential any such information and shall not disclose any
such information so provided to any person other than the Broker-Dealer, the
Issuer and the Trustee, provided that the Auction Agent reserves the right to
disclose any such information if it is advised by its counsel that its failure
to do so would be unlawful or would expose the Auction Agent to liability, loss,
claim or damage for which the Auction Agent has not previously received
indemnity reasonably satisfactory to it. The Auction Agent shall notify the
Broker-Dealer, the Corporation and the Trustee promptly upon receipt of any
request or demand to disclose such information and shall cooperate with any
party seeking a protective order or similar relief.
(d) The Auction Agent shall send by telecopy or other means a copy
of any Notice of Series 2004-1 Notes Outstanding received from the Trustee to
the Broker-Dealer in accordance with Section 4.3 hereof.
2.3. Auction Schedule: Method of Submission of Orders
------------------------------------------------
(a) The Auction Agent shall conduct Auctions for the Series 2004-1
Notes in accordance with the schedule set forth below. Such schedule may be
changed by the Auction Agent with the consent of the Trustee and the Market
Agent, which consent shall not be unreasonably withheld or delayed. The Auction
Agent shall give written notice of any such change to the Broker-Dealer. Such
notice shall be given prior to the close of business on the Business Day next
preceding the first Auction Date on which any such change shall be effective.
By 9:30 A.M. The Auction Agent advises the Trustee and the
Broker-Dealers of the Maximum Auction Rate, the
All Hold Rate, the Net Loan Rate and the One-month
LIBOR or the Three-month LIBOR, as the case may
be, to be used in determining the Auction Rate
under the Auction Procedures, the First
Supplemental Indenture and the Auction Agent
Agreement.
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Broker-Dealer Agreement dated as of February 1, 2004
9:30 A.M. - 12:30 P.M The Auction Agent assembles information
communicated to it by Broker-Dealers as provided
in Section 4(c)(i) of the First Supplemental
Indenture. The Submission Deadline is 12:30 P.M.
Not earlier than 12:30 P.M. The Auction Agent makes determinations pursuant to
Section 4(c)(i) of the First Supplemental
Indenture. Submitted Bids and Submitted Sell
Orders are accepted and rejected in whole or in
part and Series 2004-1 Notes allocated as provided
in Section 4(d) of the First Supplemental
Indenture.
By approximately The Auction Agent advises the Trustee and the
3:00 P.M.* Broker-Dealers of the results of the Auction as
4:00 P.M.** provided in Section 4(c)(ii) of the First
Supplemental Indenture. The Auction Agent gives
notice of Auction results as set forth in Section
2.4(a) hereof.
*If the Series 2004-1 Note Auction Rate is the Auction Rate.
**If the Series 2004-1 Note Auction Rate is the Net Loan Rate.
(b) The Broker-Dealer agrees to contact Potential Holders on or
prior to each Auction Date for the purposes of participating in the Auction on
such Auction Date.
(c) The Broker-Dealer shall submit Orders to the Auction Agent in
writing by delivering an Order Form. The Broker-Dealer shall submit separate
Orders to the Auction Agent for each Potential Holder or Existing Holder on
whose behalf the Broker-Dealer is submitting an Order and shall not net or
aggregate the Orders of different Potential Holders or Existing Holders on whose
behalf the Broker-Dealer is submitting Orders.
(d) The Broker-Dealer shall deliver to the Auction Agent (i) a
Notice of Transfer with respect to any transfer of Series 2004-1 Notes made
through the Broker-Dealer by an Existing Holder to another person other than
pursuant to an Auction, and (ii) a Notice of Failure to Deliver or Make Payment
with respect to the failure of any Series 2004-1 Notes to be transferred to or
payment to be made by any person that purchased or sold Series 2004-1 Notes
through the Broker-Dealer pursuant to a prior Auction. The Auction Agent is not
required to accept any notice delivered pursuant to clauses (i) or (ii) of this
subparagraph (d) with respect to an Auction unless it is received by the Auction
Agent by 3:00 P.M. on the Business Day next preceding such Auction Date.
(e) The Broker-Dealer agrees to handle its customers' Orders in
accordance with its duties under applicable securities laws and rules.
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Broker-Dealer Agreement dated as of February 1, 2004
2.4. Notices
-------
(a) On each Auction Date, the Auction Agent shall notify the
Broker-Dealer by telephone of the results of the Auction as set forth in
paragraph (a) of the Settlement Procedures. The Auction Agent shall by 10:30
A.M. on the Business Day next succeeding such Auction Date if previously
requested by the Broker-Dealer notify the Broker-Dealer in writing of the
disposition of all Orders submitted by the Broker-Dealer in the Auction held on
such Auction Date.
(b) The Broker-Dealer shall notify each Existing Holder or Potential
Holder on whose behalf the Broker-Dealer has submitted an Order as set forth in
paragraph (b) of the Settlement Procedures and take such other action as is
required by the Broker-Dealer pursuant to the Settlement Procedures.
(c) The Auction Agent shall deliver to the Broker-Dealer all notices
and certificates that the Auction Agent is required to deliver to the
Broker-Dealer pursuant to Section 2 of the Auction Agent Agreement at the times
and in the manner set forth in the Auction Agent Agreement.
2.5. Service Charge to Be Paid to the Broker-Dealer
----------------------------------------------
With respect to each series of the Series 2004-1 Notes, not later than
2:00 P.M. on each Interest Payment Date relating to such series, with respect to
the Interest Period commencing on such Interest Payment Date, the Auction Agent
shall pay to the Broker-Dealer a fee, from monies received from the Trustee, in
an amount in cash equal to the product of (i) the Broker-Dealer Fee Rate times
(ii) a fraction, the numerator of which is the number of days in such Interest
Period and the denominator of which is 360, times (iii) the aggregate principal
amount of Series 2004-1 Notes of such series that will be outstanding at the
close of business on such Interest Payment Date.
2.6. Settlement
----------
(a) If any Existing Holder on whose behalf the Broker-Dealer has
submitted a Bid or Sell Order for Series 2004-1 Notes that was accepted in whole
or in part fails to instruct its Participant to deliver the Series 2004-1 Notes
subject to such Bid or Sell Order against payment therefor, the Broker-Dealer
shall instruct such Participant to deliver such Series 2004-1 Notes against
payment therefor and the Broker-Dealer may deliver to the Potential Holder on
whose behalf the Broker-Dealer submitted a Bid that was accepted in whole or in
part, a principal amount of the Series 2004-1 Notes that is less than the
principal amount of the Series 2004-1 Notes specified in such Bid to be
purchased by such Potential Holder. Notwithstanding the foregoing terms of this
Section, any delivery or nondelivery of Series 2004-1 Notes that represents any
departure from the results of an Auction, as determined by the Auction Agent,
shall be of no effect unless and until the Auction Agent shall have been
notified of such delivery or non-delivery in accordance with the terms of
Section 2.3(d) hereof. The Auction Agent shall have no duty or liability with
respect to enforcement of this Section 2.6(a).
(b) Neither the Auction Agent, the Trustee, nor the Corporation
shall have any responsibility or liability with respect to the failure of an
Existing Holder, a Potential Holder or
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Broker-Dealer Agreement dated as of February 1, 2004
its respective Participant to deliver Series 2004-1 Notes or to pay for Series
2004-1 Notes sold or purchased pursuant to the Auction Procedures or otherwise.
The Auction Agent shall have no responsibility for any adjustment to the fees
paid pursuant to Section 2.5 hereof as a result of any failure described in this
Section 2.6(b).
Section 3. The Auction Agent
-----------------
3.1. Duties and Responsibilities
---------------------------
(a) The Auction Agent is acting hereunder solely as agent for the
Corporation and owes no fiduciary duties to any person by reason of this
Broker-Dealer Agreement.
(b) The Auction Agent undertakes to perform such duties and only
such duties as are specifically set forth in this Broker-Dealer Agreement, and
no implied covenants or obligations shall be read into this Broker-Dealer
Agreement against the Auction Agent.
(c) In the absence of bad faith or negligence on its part, the
Auction Agent shall not be liable for any action taken, suffered, or omitted or
for any error of judgment made by it in the performance of its duties under this
Broker-Dealer Agreement. The Auction Agent shall not be liable for any error of
judgment made in good faith unless the Auction Agent shall have been negligent
in ascertaining (or failing to ascertain) the pertinent facts.
3.2. Rights of the Auction Agent
---------------------------
(a) The Auction Agent may conclusively rely and shall be fully
protected in acting or refraining from acting upon any communication authorized
by this Broker-Dealer Agreement and upon any written instruction, notice
request, direction, consent report, certificate, share certificate or other
instrument, paper or document reasonably believed by it to be genuine. The
Auction Agent shall not be liable for acting upon any telephone communication
authorized by this Broker-Dealer Agreement which the Auction Agent believes in
good faith to have been given by the Trustee, a Broker-Dealer or the
Corporation. The Auction Agent may record telephone communications with the
Broker-Dealers.
(b) The Auction Agent may consult with counsel of its own choice,
and the advice of such counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon.
(c) The Auction Agent shall not be required to advance, expend or
risk its own funds or otherwise incur or become exposed to financial liability
in the performance of its duties hereunder.
(d) The Auction Agent may perform its duties and exercise its rights
hereunder either directly or by or through agents or attorneys and shall not be
responsible for any willful misconduct or negligence on the part of any agent or
attorney appointed by it with due care hereunder.
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Broker-Dealer Agreement dated as of February 1, 2004
3.3. The Auction Agent's Disclaimer
------------------------------
The Auction Agent makes no representation as to the correctness,
validity, adequacy or accuracy of the recitals in or the adequacy or validity of
this Broker-Dealer Agreement, the Auction Agent Agreement or the validity or
adequacy of the Series 2004-1 Notes.
Section 4. Miscellaneous
-------------
4.1. Termination
-----------
Any party may terminate this Broker-Dealer Agreement at any time upon
five days' prior notice to the other party; provided, however, that if the
Broker-Dealer is RBC Xxxx Xxxxxxxx Inc., neither the Broker-Dealer nor the
Auction Agent may terminate this Broker-Dealer Agreement without first obtaining
the prior written consent of the Trustee and the Corporation of such
termination, which consent shall not be unreasonably withheld or delayed. For so
long as the Auction Agent Agreement is effective and if RBC Xxxx Xxxxxxxx Inc.
is the sole Broker-Dealer, any termination of this Broker-Dealer Agreement shall
not be effective unless and until a successor, or substitute Broker-Dealer
Agreement becomes effective. This Broker-Dealer Agreement shall automatically
terminate upon the delivery of certificates representing the Series 2004-1 Notes
pursuant to Section 17 of the First Supplemental Indenture or upon termination
of the Auction Agent Agreement.
4.2. Participant
-----------
The Broker-Dealer is, and shall remain for the term of this
Broker-Dealer Agreement, a member of, or Participant in, the Depository (or an
affiliate of such a member or Participant).
4.3. Communications
--------------
Except for (i) communications authorized to be made by telephone
pursuant to this Broker-Dealer Agreement or the Auction Procedures and (ii)
communications in connection with the Auctions (other than those expressly
required to be in writing), all notices, requests and other communications to
any party hereunder shall be in writing (including facsimile or similar writing)
and shall be given to such party, addressed to it, or its address or facsimile
number set forth below:
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Broker-Dealer Agreement dated as of February 1, 2004
If to the Broker-Dealer, addressed: RBC Xxxx Xxxxxxxx Inc.
1211 Avenue of the Americas
Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxx,
Short-Term Desk
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
If to the Auction Agent, addressed: Deutsche Bank Trust Company Americas
00 Xxxx Xxxxxx
00/xx/ Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Auction Rate Securities
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
If to the Trustee, addressed: U.S. Bank National Association
EP-MN-WS3D
00 Xxxxxxxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000-0000
Attention: Corporate Trust Department
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Corporation, addressed: Education Loans Incorporated
000 Xxxxx Xxxxxx Xxxxxxxxx
Xxxxxxxx, Xxxxx Xxxxxx 00000
Attention: President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
or such other address or facsimile number as such party may hereafter specify
for such purpose by notice to the other party. Each such notice, request or
communication shall be effective when delivered at the address specified herein.
Communications shall be given on behalf of the Broker-Dealer by a Broker-Dealer
Officer and on behalf of the Auction Agent by an Authorized Officer of the
Auction Agent. The Broker-Dealer may record telephone communications with the
Auction Agent.
4.4. Entire Agreement
----------------
This Broker-Dealer Agreement contains the entire agreement between the
parties relating to the subject matter hereof, and there are not other
representations, endorsements, promises, agreements or understandings, oral,
written or inferred, between the parties relating to the subject matter hereof.
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Broker-Dealer Agreement dated as of February 1, 2004
4.5. Benefits
--------
Nothing in this Broker-Dealer Agreement, express or implied, shall
give to any person, other than the Auction Agent, the Corporation, the
Broker-Dealer and their respective successors and assigns, any benefit of any
legal or equitable right, remedy or claim under this Broker-Dealer Agreement.
4.6. Amendment; Waiver
-----------------
(a) This Broker-Dealer Agreement shall not be deemed or construed to
be modified, amended, rescinded, canceled or waived, in whole or in part, except
by a written instrument signed by a duly authorized representative of the
parties hereto. This Broker-Dealer Agreement may not be amended without first
obtaining the prior written consent of the Corporation.
(b) Failure of either party to this Broker-Dealer Agreement to
exercise any right or remedy hereunder in the event of a breach of this
Broker-Dealer Agreement by the other party shall not constitute a waiver of any
such right or remedy with respect to any subsequent breach.
4.7. Successors and Assigns
----------------------
This Broker-Dealer Agreement shall be binding upon, inure to the
benefit of, and be enforceable by, the parties hereto and their respective
successors and assigns.
4.8. Severability
------------
If any clause, provision or section of this Broker-Dealer Agreement
shall be ruled invalid or unenforceable by any court of competent jurisdiction,
the invalidity or unenforceability of such clause, provision or section shall
not affect any remaining clause, provision or sections hereof.
4.9. Execution in Counterparts
-------------------------
This Broker-Dealer Agreement may be executed in several counterparts,
each of which shall be an original and all of which shall constitute but one and
the same instrument.
4.10. Governing Law
-------------
This Broker-Dealer Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
[The remainder of this page is intentionally left blank.]
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Broker-Dealer Agreement dated as of February 1, 2004
In Witness Whereof, the parties hereto have caused this Broker-Dealer
Agreement to be duly executed and delivered by their respective officers
thereunto duly authorized as of the date first above written.
DEUTSCHE BANK TRUST COMPANY AMERICAS
as Auction Agent
By: /s/ Xxxx XxXxxxxx
---------------------------------
Title: Assistant Vice President
RBC XXXX XXXXXXXX INC.,
as Broker-Dealer
By: /s/ Xxxxx Xxxxx
---------------------------------
Title: Managing Director
Pursuant to and in accordance with
Section 9 of the First Supplemental
Indenture and Section 2.9 of the
Auction Agent Agreement (defined
above), the undersigned consents to
the execution of the above
Broker-Dealer Agreement.
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By /s/ Xxxxxxx X. Xxxxxxxx
------------------------------------
Title: Vice President
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Broker-Dealer Agreement dated as of February 1, 2004
EXHIBIT A TO BROKER-DEALER AGREEMENT
SETTLEMENT PROCEDURES
If not otherwise defined herein, capitalized terms used herein shall
have the meanings given such terms in Article 1 of the First Supplemental
Indenture. These Settlement Procedures shall apply separately for each series of
Series 2004-1 Notes.
(a) Not later than (1) 3:00 P.M., if the Series 2004-1 Note Auction
Rate is the Auction Rate or (2) 4:00 p.m. if the Series 2004-1 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 2004-1 Note Auction Rate fixed for the next
Interest Period;
(ii) whether there were Sufficient Bids in such Auction;
(iii) if such Broker-Dealer submitted Bids or Sell Orders on
behalf of an Existing Holder (a "Seller's Broker-Dealer"),
whether such Bid or Sell Order was accepted or rejected,
in whole or in part, and the principal amount of Series
2004-1 Notes, if any, to be sold by such Existing Holder;
(iv) if such Broker-Dealer submitted a Bid on behalf of a
Potential Holder (a "Buyer's Broker-Dealer"), whether such
Bid was accepted or rejected, in whole or in part, and the
principal amount of Series 2004-1 Notes, if any, to be
purchased by such Potential Holder;
(v) if the aggregate amount of Series 2004-1 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 2004-1 Notes to be
purchased by all Potential Holders on whose behalf such
Broker-Dealer submitted a Bid, the name or names of one or
more Buyer's Broker-Dealers (and the name of the
Participant, if any, of each such Buyer's Broker-Dealer)
acting for one or more purchasers of such excess principal
amount of Series 2004-1 Notes and the principal amount of
Series 2004-1 Notes to be purchased from one or more
Existing Holders on whose behalf such Seller's
Broker-Dealer acted by one or more Potential Holders on
whose behalf each of such Buyer's Broker-Dealers acted;
(vi) if the principal amount of Series 2004-1 Notes to be
purchased by all Potential Holders on whose behalf such
Buyer's Broker-Dealer submitted a Bid exceeds the amount
of Series 2004-1 Notes to be
A-1
Broker-Dealer Agreement dated as of February 1, 2004
sold by all Existing Holders on whose behalf such
Broker-Dealer submitted a Bid or a Sell Order, the name or
names of one or more Seller's Broker-Dealers (and the name
of the Participant, if any, of each such Seller's
Broker-Dealer) acting for one or more sellers of such
excess principal amount of Series 2004-1 Notes and the
principal amount of Series 2004-1 Notes to be sold to one
or more Potential Holders on whose behalf such Buyer's
Broker-Dealer acted by one or more Existing Holders on
whose behalf each of such Seller's Broker-Dealers acted;
and
(vii) the Auction Date for the next succeeding Auction.
(b) On each Auction Date, each Broker-Dealer that submitted an Order
on behalf of any Existing Holder or Potential Holder shall:
(i) advise each Existing Holder and Potential Holder on whose
behalf such Broker-Dealer submitted a Bid or Sell Order in
the Auction on such Auction Date whether such Bid or Sell
Order was accepted or rejected, in whole or in part;
(ii) in the case of a Broker-Dealer that is a Buyer's
Broker-Dealer, advise each Potential Holder on whose
behalf such Buyer's Broker-Dealer submitted a Bid that was
accepted, in whole or in part, to instruct such Potential
Holder's Participant to pay such Buyer's Broker-Dealer (or
its Participant) through the Depository the amount
necessary to purchase the principal amount of Series
2004-1 Notes to be purchased pursuant to such Bid against
receipt of such Series 2004-1 Notes;
(iii) in the case of a Broker-Dealer that is a Seller's
Broker-Dealer, instruct each Existing Holder on whose
behalf such Seller's Broker-Dealer submitted a Sell Order
that was accepted, in whole or in part, to instruct such
Existing Holder's Participant to deliver to such Seller's
Broker-Dealer (or its Participant) through the Depository
the principal amount of Series 2004-1 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 2004-1 Note Auction Rate for the next Series 2004-1
Note Interest Period;
(v) advise each Existing Holder on whose behalf such
Broker-Dealer submitted an Order of the next Auction Date,
including, without limitation, Existing Holders deemed to
have submitted Hold Orders pursuant to Section 4(b)(iii)
of the First Supplemental Indenture; and
A-2
Broker-Dealer Agreement dated as of February 1, 2004
(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 2004-1 Notes
received by it in connection with such Auction pursuant to paragraph (b) (iii)
above among the Potential Holders, if any, on whose behalf such Broker-Dealer
submitted Bids, the Existing Holders, if any, on whose behalf such Broker-Dealer
submitted Bids or Sell Orders in such Auction, and any Broker-Dealers identified
to it by the Auction Agent following such Auction pursuant to paragraph (a) (v)
or (a) (vi) above.
(d) On each Auction Date:
(i) each Potential Holder and Existing Holder with an Order in
the Auction on such Auction Date shall instruct its
Participant as provided in (b) (ii) or (b)(iii) above, as
the case may be;
(ii) each Seller's Broker-Dealer that is not a Participant of
the Depository shall instruct its Participant to deliver
such Series 2004-1 Notes through the Depository to a
Buyer's Broker-Dealer (or its Participant) identified to
such Seller's Broker-Dealer pursuant to (a) (v) above
against payment therefor; and
(iii) each Buyer's Broker-Dealer that is not a Participant in
the Depository shall instruct its Participant to pay
through the Depository to a Seller's Broker-Dealer (or its
Participant) identified following such Auction pursuant to
(a) (vi) above the amount necessary to purchase the Series
2004-1 Notes to be purchased pursuant to (b) (ii) above
against receipt of such Series 2004-1 Notes.
(e) On the Business Day following each Auction Date:
(i) each Participant for a Bidder in the Auction on such
Auction Date referred to in (d) (i) above shall instruct
the Depository to execute the transactions described under
(b) (ii) or (b) (iii) above for such Auction, and the
Depository shall execute such transactions;
(ii) each Seller's Broker-Dealer or its Participant shall
instruct the Depository to execute the transactions
described in (d)(ii) above for such Auction, and the
Depository shall execute such transactions; and
(iii) each Buyer's Broker-Dealer or its Participant shall
instruct the Depository to execute the transactions
described in (d) (iii) above
A-3
Broker-Dealer Agreement dated as of February 1, 2004
for such Auction, and the Depository shall execute such
transactions.
(f) If an Existing Holder selling Series 2004-1 Notes in an Auction
fails to deliver such Series 2004-1 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 2004-1 Notes that
is less than the principal amount of Series 2004-1 Notes that otherwise was to
be purchased by such Potential Holder. In such event, the principal amount of
Series 2004-1 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 2004-1 Notes shall constitute good delivery.
Notwithstanding the foregoing terms of this paragraph (f), any delivery or
nondelivery of Series 2004-1 Notes which shall represent any departure from the
results of an Auction, as determined by the Auction Agent, shall be of no effect
unless and until the Auction Agent shall have been notified of such delivery or
nondelivery in accordance with the provisions of the Auction Agent Agreement and
the Broker-Dealer Agreements. Neither the Trustee nor the Auction Agent will
have any responsibility or liability with respect to the failure of a Potential
Holder, Existing Holder or their respective Broker-Dealer or Participant to
deliver the principal amount of Series 2004-1 Notes or to pay for the Series
2004-1 Notes purchased or sold pursuant to an Auction or otherwise.
A-4
Broker-Dealer Agreement dated as of February 1, 2004
EXHIBIT B TO BROKER-DEALER AGREEMENT
EDUCATION LOANS INCORPORATED
STUDENT LOAN ASSET-BACKED NOTES
[SENIOR SERIES 2004-A1]
[SENIOR SERIES 2004-A2]
[SENIOR SERIES 2004-A3]
[SENIOR SERIES 2004-A4]
[SENIOR SERIES 2004-A5]
[SUBORDINATE SERIES 2004-B1]
ORDER FORM
AUCTION DATE___________
ISSUE__________________
SERIES_________________
The undersigned Broker-Dealer submits the following orders on behalf
of the Bidder(s) indicated below:
PRINCIPAL AMOUNT
OF NOTES ($50,000
EXISTING HOLDER OR MULTIPLES) BID RATE
----------------------- ----------------------- -----------------------
1.
----------------------- ----------------------- -----------------------
2.
----------------------- ----------------------- -----------------------
3.
----------------------- ----------------------- -----------------------
4.
----------------------- ----------------------- -----------------------
5.
----------------------- ----------------------- -----------------------
6.
----------------------- ----------------------- -----------------------
7.
----------------------- ----------------------- -----------------------
8.
----------------------- ----------------------- -----------------------
9.
----------------------- ----------------------- -----------------------
10.
----------------------- ----------------------- -----------------------
*Existing Holders may be described by name or other reference as determined in
the sole discretion of the Broker-Dealer.
B-1
Broker-Dealer Agreement dated as of February 1, 2004
EDUCATION LOANS INCORPORATED
STUDENT LOAN ASSET-BACKED NOTES
[SENIOR SERIES 2004-A1]
[SENIOR SERIES 2004-A2]
[SENIOR SERIES 2004-A3]
[SENIOR SERIES 2004-A4]
[SENIOR SERIES 2004-A5]
[SUBORDINATE SERIES 2004-B1]
BIDS BY POTENTIAL HOLDERS
PRINCIPAL AMOUNT
OF NOTES ($50,000
EXISTING HOLDER OR MULTIPLES) BID RATE
----------------------- ----------------------- -----------------------
1.
----------------------- ----------------------- -----------------------
2.
----------------------- ----------------------- -----------------------
3.
----------------------- ----------------------- -----------------------
4.
----------------------- ----------------------- -----------------------
5.
----------------------- ----------------------- -----------------------
6.
----------------------- ----------------------- -----------------------
7.
----------------------- ----------------------- -----------------------
8.
----------------------- ----------------------- -----------------------
9.
----------------------- ----------------------- -----------------------
10.
----------------------- ----------------------- -----------------------
11.
----------------------- ----------------------- -----------------------
12.
----------------------- ----------------------- -----------------------
13.
----------------------- ----------------------- -----------------------
14.
----------------------- ----------------------- -----------------------
15.
----------------------- ----------------------- -----------------------
NOTES:
1. If one or more Orders covering in the aggregate more than the
outstanding principal amount of Series 2004-1 Notes held by any
Existing Holder are submitted, such Orders shall be considered valid
in the order of priority set forth in the Auction Procedures.
2. A Hold or Sell Order may be placed only by an Existing Holder covering
a principal amount of Series 2004-1 Notes not greater than the
principal amount currently held by such Existing Holder.
3. Potential Holders may only make Bids, each of which must specify a
rate. If more than one Bid is submitted on behalf of any Potential
Holder, each Bid submitted shall be a separate Bid with the rate
specified herein.
B-2
Broker-Dealer Agreement dated as of February 1, 2004
4. Bids may contain no more than three figures to the right of the
decimal point (.001 of 1%).
5. An order must be submitted in principal amounts of $50,000 or integral
multiples thereof.
*Potential Holders may be described by name or other reference as determined in
the sole discretion of the Broker-Dealer.
B-3
Broker-Dealer Agreement dated as of February 1, 2004
NAME OF BROKER-DEALER:
---------------------------------------------------------
AUTHORIZED SIGNATURE:
----------------------------------------------------------
TOTAL NUMBER OF ORDERS ON THIS ORDER FORM:
-------------------------------------
Submit to: Deutsche Bank Trust Company Americas
00 Xxxx Xxxxxx
00/xx/ Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Auction Rate Securities
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
B-4
Broker-Dealer Agreement dated as of February 1, 2004
EXHIBIT C TO BROKER-DEALER AGREEMENT
EDUCATION LOANS INCORPORATED
STUDENT LOAN ASSET-BACKED NOTES
[SENIOR SERIES 2004-A1]
[SENIOR SERIES 2004-A2]
[SENIOR SERIES 2004-A3]
[SENIOR SERIES 2004-A4]
[SENIOR SERIES 2004-A5]
[SUBORDINATE SERIES 2004-B1]
(TO BE USED ONLY FOR TRANSFERS MADE OTHER
THAN PURSUANT TO AN AUCTION)
We are (check one)
_____________the Existing Holder indicated below*; or
______________the Broker-Dealer for such Existing Holder; or
______________the Participant for such Existing Holder.
We hereby notify you that such Existing Holder has transferred $_________ (must
be in units of $50,000) of [Senior Series 2004-A1 Notes] [Senior Series 2004-A2
Notes] [Senior Series 2004-A3 Notes] [Senior Series 2004-A4 Notes] [Senior
Series 2004-A5 Notes] [Subordinate Series 2004-B1 Notes] to
----------------------------------------
(Existing Holder)
----------------------------------------
(Name of Broker-Dealer)
----------------------------------------
(Name of Participant)
By:
-------------------------------------
Printed Name:
---------------------------
Title:
----------------------------------
*Existing Holders may be described by name or other reference as determined in
the sole discretion of the Broker-Dealer.
C-1
Broker-Dealer Agreement dated as of February 1, 2004
EXHIBIT D TO BROKER-DEALER AGREEMENT
EDUCATION LOANS INCORPORATED
STUDENT LOAN ASSET-BACKED NOTES
[SENIOR SERIES 2004-A1]
[SENIOR SERIES 2004-A2]
[SENIOR SERIES 2004-A3]
[SENIOR SERIES 2004-A4]
[SENIOR SERIES 2004-A5]
[SUBORDINATE SERIES 2004-B1]
NOTICE OF A FAILURE TO DELIVER OR MAKE PAYMENT
COMPLETE EITHER I OR II.
------------------------
I. We are a Broker-Dealer for * (the "Purchaser"), which purchased
$_________ (must be in units of $50,000) of the [Senior Series 2004-A1
Notes] [Senior Series 2004-A2 Notes] [Senior Series 2004-A3 Notes]
[Senior Series 2004-A4 Notes] [Senior Series 2004-A5 Notes]
[Subordinate Series 2004-B1 Notes] in the Auction held on
_____________________ from the seller of such [Senior Series 2004-A1
Notes] [Senior Series 2004-A2 Notes] [Senior Series 2004-A3 Notes]
[Senior Series 2004-A4 Notes] [Senior Series 2004-A5 Notes]
[Subordinate Series 2004-B1 Notes].
II. We are a Broker-Dealer for * (the "Seller"), which sold $___________
(must be in units of $50,000) of the [Senior Series 2004-A1 Notes]
[Senior Series 2004-A2 Notes] [Senior Series 2004-A3 Notes] [Senior
Series 2004-A4 Notes] [Senior Series 2004-A5 Notes] [Subordinate
Series 2004-B1 Notes] in the Auction held on ___________________ to
the purchaser of such [Senior Series 2004-A1 Notes] [Senior Series
2004-A2 Notes] [Senior Series 2004-A3 Notes] [Senior Series 2004-A4
Notes] [Senior Series 2004-A5 Notes] [Subordinate Series 2004-B1
Notes].
We hereby notify you that (check one)
_______________ the Seller failed to deliver such [Senior Series 2004-A1
Notes] [Senior Series 2004-A2 Notes] [Senior Series 2004-A3
Notes] [Senior Series 2004-A4 Notes] [Senior Series 2004-A5
Notes] [Subordinate Series 2004-B1 Notes] to the Purchaser.
_______________ the Purchaser failed to make payment to the Seller upon
delivery of such [Senior Series 2004-A1 Notes] [Senior
Series 2004-A2 Notes] [Senior Series 2004-A3 Notes] [Senior
Series 2004-A4 Notes] [Senior Series 2004-A5 Notes]
[Subordinate Series 2004-B1 Notes].
D-1
Broker-Dealer Agreement dated as of February 1, 2004
*may be described by name or other reference as determined in the sole
discretion of the Broker-Dealer.
(Name of Broker-Dealer)
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
D-2
