[Exhibit 4.6]
Interest Rate Cap Agreement
[1992 ISDA MASTER AGREEMENT (MULTICURRENCY - CROSS BORDER)]
Date: September 15, 2000
PARTY A
KEY BANK USA, NATIONAL ASSOCATION
By: /s/ CRAIG PLATT
----------------------------
Name: Craig Platt
Title: Senior Vice President
PARTY B
KEYCORP STUDENT LOAN TRUST 2000-B
By: Bank One, National Association, not in its individual
capacity, but solely as Eligible Lender Trustee
By: /s/ KEITH R. RICHARDSON
---------------------------
Name: Keith R. Richardson
Title: Authorized Officer
<PAGE>
SCHEDULE
TO THE
ISDA MASTER AGREEMENT
DATED AS OF
SEPTEMBER 15, 2000
BETWEEN
KEY BANK USA, NATIONAL ASSOCIATION,
A NATIONAL BANKING ASSOCIATION ORGANIZED UNDER THE LAWS OF THE UNITED STATES
("PARTY A"),
AND
KEYCORP STUDENT LOAN TRUST 2000-B,
A TRUST ORGANIZED UNDER THE LAWS OF THE STATE OF NEW YORK
("PARTY B").
PART 1. TERMINATION PROVISIONS.
(a) "SPECIFIED ENTITY"
(i) means, in relation to Party A, not applicable; and
(ii) means, in relation to Party B, not applicable.
(b) The "CROSS DEFAULT" provisions of Section 5(a)(vi) will not apply
to Party A and will not apply to Party B.
(c) The "CREDIT EVENT UPON MERGER" provisions of Section 5(b)(iv)
shall not apply to Party A and shall not apply to Party B.
(d) The "AUTOMATIC EARLY TERMINATION" provision of Section 6(a) will
not apply to Party A and will not apply to Party B.
(e) PAYMENTS ON EARLY TERMINATION. For the purpose of Section 6(e):
Loss and Second Method shall apply; provided, however, that the
definition of the term "Loss" in Section 14 shall be deleted in
its entirety and shall be replaced by the following new
definition:
"Loss" means $350,000 which shall be payable by Party A to
Party B.
The parties agree that Loss (as herein defined) is a reasonable
pre-estimate of the loss that would result from an early
termination of the Sole Transaction (as such term is defined in
Part 5(a)) and not a penalty. Such amount will be payable for the
loss of bargain and the loss of protection against future risks,
and except as otherwise provided in the Agreement, neither party
will be entitled to recover any additional damages as a
consequence of such losses. Prior to an early termination of the
Sole Transaction, the provisions of this Part 1(e) shall not bar
Party B from bringing an action or actions against Party A in a
court of competent jurisdiction to enforce its rights to receive
any amount or amounts due and unpaid from Party A to Party B
under the terms of Section 2(a)(i) and the Sole Transaction.
From and after an early termination of the Sole Transaction,
either party shall have the right to net or setoff any amount
then due and owing from it to the other party with respect to the
Sole Transaction against any amount then due and owing from the
other party to it with respect to the Sole Transaction.
(f) "TERMINATION CURRENCY" means United States Dollars.
(g) LIMITATION OF EVENTS OF DEFAULT AND TERMINATION EVENTS.
Notwithstanding any other provision of the Agreement, the only
Events of Default and Termination Events that shall be applicable
to Party A are those set forth in Sections 5(a)(i), 5(a)(vii) and
5(b)(i), and the only Events of Default and Termination Events
that shall be applicable to Party B are those set forth in
Sections 5(a)(i) and 5(b)(i).
PART 2. TAX REPRESENTATIONS.
(a) PAYER TAX REPRESENTATIONS. For the purposes of Section 3(e),
neither Party A, nor Party B makes any representations.
(b) PAYEE TAX REPRESENTATIONS.
(i) For the purposes of Section 3(f), Party A makes the following
representations:
It is a national banking association duly organized and existing
under the laws of the United States.
(ii) For the purposes of Section 3(f), Party B makes the
following representations:
It is a business trust duly organized and existing under the laws
of the State of Delaware.
PART 3. AGREEMENT TO DELIVER DOCUMENTS
(a) For the purpose of Section 4(a):
Tax forms, documents, or certificates to be delivered are:
Party B agrees to complete (accurately and in a manner
reasonably satisfactory to Party A), execute, and deliver to
Party A a United States Internal Revenue Service Form W-9,
or any successor form, which will certify that Party B is
not subject to backup withholding (i) on a date which is
before the first Scheduled Payment Date under this Agreement
(the "Form W-9 Submission Date"), and thereafter prior to
the end of the calendar year in which the second anniversary
of the Form W-9 Submission Date occurs, and thereafter prior
to the end of each successive three calendar year period,
(ii) promptly upon reasonable demand by Party A, and (iii)
promptly upon learning that any such form previously
provided by Party B has become obsolete or incorrect.
(b) Other documents to be delivered are:
<TABLE>
<CAPTION>
<S> <C> <C> <C>
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PARTY REQUIRED FORM/DOCUMENT/CERTIFICATE DATE BY WHICH TO COVERED BY SECTION
TO DELIVER BE DELIVERED 3(D) REPRESENTATION
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Party A Evidence of authority of the party to enter Upon execution Yes
and into this Agreement and the Sole Transaction of this Agreement
Party B (as defined in Part 5(a)) contemplated hereby
and of the signatory for such party to this
Agreement and the Confirmation of such Sole
Transaction.
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Party A Copy of the most recent Call Report filed by Promptly Yes
Party A with the Office of the Comptroller of following
the Currency. reasonable
demand by Party B
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</TABLE>
PART 4. MISCELLANEOUS
(a) ADDRESSES FOR NOTICES. For the purpose of Section 12(a):
Address for notices or communications to Party A:
Address: Key Bank USA, National Association
M.C. OH-01-27-0405
127 Public Square - 4th Floor
Cleveland, Ohio 44144
Attention: Trading Desk - Manager, Interest
Rate Derivatives
Telephone: (216) 689-3832
Facsimile: (216) 689-5859
Address for notices or communications to Party B:
Address: KeyCorp Student Loan Trust 2000-B
c/o Bank One National Association
1 Bank One Plaza
Suite IL1-0126
Chicago, Illinois 60670
Attention: Corporate Trust Services
Telephone: (312) 407-0192
Facsimile: (312) 407-1708
with a copy to the Administrator (as such term is
defined in Appendix A to the Sale and Servicing
Agreement dated as of September 1, 2000, among Key Bank
USA, National Association, as seller, administrator and
master servicer, KeyCorp Student Loan Trust 2000-B, as
issuer, and Bank One, National Association, as eligible
lender trustee (the "Sale and Servicing Agreement")) in
the event that Key Bank USA, National Association
ceases to be the Administrator.
Address for notices or communications to the Securities
Insurer:
Address: MBIA Insurance Corporation
113 King Street
Armonk, New York 10504
Attention: Insured Portfolio Management-SF
Telephone: (914) 273-4545
Facsimile: (914) 765-3810
(b) PROCESS AGENT. For the purpose of Section 13(c):
Party A appoints as its Process Agent: Not applicable.
Party B appoints as its Process Agent: Not applicable.
(c) OFFICES. The provisions of Section 10(a) will apply to this
Agreement.
(d) MULTIBRANCH PARTY. For the purpose of Section 10(c):
Party A is not a Multibranch Party.
Party B is not a Multibranch Party.
(e) CALCULATION AGENT. The Calculation Agent is the Administrator.
(f) CREDIT SUPPORT DOCUMENT. Details of any Credit Support Document,
each of which are incorporated by reference in, and made part of,
this Agreement and each Confirmation (unless provided otherwise
in a Confirmation) as if set forth in full in this Agreement or
such Confirmation: Not applicable.
(g) CREDIT SUPPORT PROVIDER. Credit Support Provider means, in
relation to Party A, not applicable. Credit Support Provider
means in relation to Party B, not applicable.
(h) GOVERNING LAW. This Agreement will be governed by and construed
in accordance with the law of the State of New York (without
reference to its choice of law doctrine).
(j) NETTING OF PAYMENTS. Subparagraph (ii) of Section 2(c) will apply
to Transactions.
PART 5. OTHER PROVISIONS.
(a) SOLE TRANSACTION. Notwithstanding any other provision of this
Agreement, this Agreement shall govern only one Transaction (the
"Sole Transaction"). A copy of the form of Confirmation for the
Sole Transaction is attached hereto as Exhibit A.
(b) ISOLATION OF SOLE TRANSACTION. Notwithstanding Section 6, any
designation of an Early Termination Date in respect of the Sole
Transaction shall apply only to the Sole Transaction.
(c) ACCURACY OF SPECIFIED INFORMATION. Section 3(d) is hereby amended
by adding in the third line thereof after the word "respect" and
before the period, the phrase "or, in the case of audited or
unaudited financial statements, a fair presentation of the
financial condition of the relevant person."
(d) ADDITIONAL REPRESENTATIONS. The parties agree to amend Section 3
by adding new Sections 3(g), (h), (i) and (j) as follows:
(g) ELIGIBLE SWAP PARTICIPANT. It is an "eligible swap participant"
as defined in the Part 35 Regulations of the Commodity Futures
Trading Commission.
(h) LINE OF BUSINESS. It has entered into this Agreement and the Sole
Transaction in conjunction with its line of business (including
financial intermediation services) or the financing of its
business.
(i) NON-RELIANCE. In connection with the negotiation of, the entering
into, and the confirming of the execution of, this Agreement and
the Sole Transaction: (i) the other party is not acting as a
fiduciary or financial or investment advisor for it; (ii) it is
acting as a principal and not as an agent or in any other
capacity, fiduciary or otherwise; (iii) it is not relying upon
any representations (whether written or oral) of the other party
other than the representations expressly set forth in this
Agreement and (iv) it has consulted with its own legal,
regulatory, tax, business, investment, financial, and accounting
advisors to the extent it has deemed necessary, and it has made
its own investment, hedging and trading decisions based on its
own judgment and upon any advice from such advisors as it has
deemed necessary and not upon any view expressed by the other
party.
(j) ASSESSMENT AND UNDERSTANDING. It is capable of assessing the
merits of and understanding (on its own behalf or through
independent professional advice), and understands and accepts,
the terms, conditions and risks of this Agreement and the Sole
Transaction. It is also capable of assuming, and assumes, the
risks of the Sole Transaction.
(e) FDI ACT REPRESENTATION. Party A represents to Party B as follows:
(i) The necessary action to authorize referred to in the
representation in Section 3(a)(ii) includes all authorizations
required under the U. S. Federal Deposit Insurance Act, as
amended and under any agreement, writ, decree, or order entered
into with its supervisory authorities.
(ii) At all times during the term of this Agreement, it will
continuously include and maintain as part of its official written
books and records this Agreement, this Schedule and all other
exhibits, supplements, and attachments hereto and documents
incorporated by reference herein, all Confirmations, and evidence
of all necessary authorizations.
(iii) This Agreement, the Confirmation of the Sole Transaction, and
any other documentation relating to this Agreement to which it is
a party or that it is required to deliver will be executed and
delivered by a duly appointed or elected and authorized officer
of it of the level of vice president or higher.
(f) NO BANKRUPTCY PETITION. Prior to the date that is one year and
one day after the date upon which Party B is terminated in
accordance with the terms of the Amended and Restated Trust
Agreement dated as of September 1, 2000, between Key Bank USA,
National Association, as seller, and Bank One, National
Association, as eligible lender trustee (the "Eligible Lender
Trustee"), Party A shall not institute against, or join any other
person in instituting against, Party B any bankruptcy,
reorganization, arrangement, insolvency or liquidation
proceeding, or other proceedings under any federal or state
bankruptcy or similar law.
(g) OBLIGATIONS OF PARTY B. Party A agrees that all obligations,
liabilities and expenses of Party B, including, without
limitation, any arising out of representations or agreements
contained herein, shall be paid from, and limited to, the assets
of Party B and that the Eligible Lender Trustee shall not be
required to spend or risk its own funds hereunder, nor shall the
Trustee incur any liability in its individual capacity.
(h) NO SETOFF. Notwithstanding any other provision of the Agreement,
in no event shall either Party A or Party B have the right to
setoff or net an amount due from it under the Sole Transaction
against an amount due from the other party under any other
Transaction, nor shall either Party A or Party B have the right
to setoff or net an amount due from it under any Transaction that
is not the Sole Transaction against an amount due from the other
party under the Sole Transaction. Notwithstanding any other
provision of this Agreement, the amount payable under Section
6(e) upon termination of the Sole Transaction shall be determined
without regard to any Transaction other than the Sole
Transaction.
(i) AMENDMENTS. Section 9(b) of this Agreement is hereby amended by
adding the following after the word "system" in the last line
thereof:
", provided, however, that all such amendments, modifications or
waivers shall require (as long as no Securities Insurer Default
shall have occurred and be continuing) the consent (which consent
shall not be unreasonably withheld) of the Securities Insurer."
(j) LIMITED RECOURSE TO PARTY B. Notwithstanding anything to the
contrary contained herein, all obligations of Party B shall be
payable by Party B only on each Distribution Date to the extent
that funds are available under Section 5.05(c) of the Sale and
Servicing Agreement or Section 5.04(b) or 5.04(c) of the
Indenture (as the case may be) and, to the extent such funds are
not available or are insufficient for the payment thereof, shall
not constitute a claim against the Trust to the extent of such
unavailability or insufficiency until such time as the Trust has
assets sufficient to pay such prior deficiency. This paragraph
shall survive the termination of this Agreement but in all cases
shall expire concurrently with the restriction specified in Part
5(f).
(k) A copy of each notice or other communication between the parties
with respect to this Agreement shall be forwarded to the
Securities Insurer.
IN WITNESS WHEREOF, the parties have executed this document on the
respective dates specified below with effect from the date specified on the
first page of this document.
KEY BANK USA, KEYCORP STUDENT LOAN
NATIONAL ASSOCIATION TRUST 2000-B
By Bank One, National Association,
not in its individual capacity,
but solely as Eligible Lender
Trustee
By: /S/ CRAIG PLATT By: /S/ KEITH R. RICHARDSON
--------------------------- -----------------------
Name: Craig Platt Name: Keith R. Richardson
Title: Senior Vice President Title: Authorized Officer
Date: 9/15/2000 Date: 9/15/2000
<PAGE>
September 15, 2000
Interest Rate (Basis Spread) Cap Documentation
KEYCORP STUDENT LOAN TRUST 2000-B
c/o Bank One, National Association
One Bank One Plaza
Suite IL-0126
Chicago, Ill, 60670
Fax: (312) 407-1708
cc: (212) 373-1382
Attention: Corporate Trust Services
From: KEY BANK USA, NATIONAL ASSOCIATION
The purpose of this communication is to set forth the terms and
conditions of the Interest Rate (Basis Spread) Cap Transaction (the
"Transaction") between KEY BANK USA, NATIONAL ASSOCIATION ("Party A") and
KEYCORP STUDENT LOAN TRUST 2000-B ("Party B") on the Trade Date specified below.
This communication will constitute a "Confirmation" as referred to in the ISDA
Master Agreement (Multicurrency - Cross Border) dated as of September 15, 2000,
entered into by the parties hereto (the "ISDA Master Agreement").
The definitions and provisions contained in the 1991 ISDA Definitions
as supplemented by the 1998 Supplement to the 1991 ISDA Definitions
(collectively, the "Definitions"), both as published by the International Swaps
and Derivatives Association, Inc. ("ISDA"), are incorporated herein.
This Confirmation supplements, forms part of and is subject to the
ISDA Master Agreement. All provisions contained in the ISDA Master Agreement
will govern this Confirmation, except as expressly modified below. In the event
of any inconsistency among or between the ISDA Master Agreement, the Definitions
and this Confirmation, this Confirmation will govern.
Capitalized terms not otherwise defined herein shall have the meanings
ascribed to them (either directly or by incorporation) in the ISDA Master
Agreement and Appendix A of the Sale and Servicing Agreement (as of the Trade
Date). The term "Business Day" shall have the meaning ascribed thereto in
Appendix A of the Sale and Servicing Agreement.
1. The terms of the particular Transaction to which this Confirmation
relates are as follows:
Trade Date: September 15, 2000
Effective Date: September 15, 2000
Termination Date: The earlier of (i) the date on which
the outstanding principal amount of the
Notes is reduced to zero, (ii) October 25,
2010 subject to adjustment in accordance
with the Following Business Day
Convention and (iii) the occurrence and
continuation of an Event of Default
under the Indenture resulting in a
liquidation of the Financed Student Loans.
Calculation Agent: The Administrator (as defined in Appendix
A of the Sale and Servicing Agreement)
Floating Rate Amounts Payable By Party A:
Party A
Floating Rate Payments: With respect to each Distribution Date, the
sum of the Class A-1 Cap Payment and the
Class A-2 Cap Payment, all as defined and
in the amounts provided for in Appendix A
of the Sale and Servicing Agreement.
Party A Floating Rate
Payment Dates: One Business Day prior to each
Distribution Date.
Fixed Rate Payment:
Fixed Rate Payer: Party B
Fixed Rate Payment: USD $350,000
Fixed Rate Payment Date: September 15, 2000
Floating Rate Amounts Payable by Party B:
Party B Floating Rate
Payments: With respect to each Distribution Date,
the amounts, if any, available for
distribution pursuant to Section 5.05(c)
(xii) of the Sale and Servicing Agreement
or Sections 5.04(b) NINTH or Section
5.04(c)(xii) of the Indenture, as
applicable.
Party B Floating Rate
Payment Dates: One Business Day prior to each
Distribution Date.
2. Account Details:
Payments to Party A:
KEYBANK NATIONAL ASSOCIATION
ABA 0410001039
AC 1553
ATTENTION: DERIVATIVE OPERATIONS
CREDIT TO KEYBANK USA
Payments to Party B:
KEYBANK NATIONAL ASSOCIATION
ABA 0410001039
AC 35-214-101-3560
3. OTHER TERMS:
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Each capitalized term used in this Confirmation and not defined in this
Confirmation or Appendix A of the Sale and Servicing Agreement or the
Definitions shall have the meaning assigned in the ISDA Master Agreement.
Notwithstanding any contrary provision of the ISDA Master Agreement, the
obligation, if any, of Party B to make Party B Floating Amount Payments shall
survive any early termination of this Transaction pursuant to Section 6 of the
ISDA Master Agreement.
Please promptly confirm that the preceding correctly sets forth the terms of our
agreement by executing the copy of this Confirmation enclosed for that purpose
and returning it to us.
Yours sincerely,
KEY BANK USA, NATIONAL
ASSOCIATION
By: /S/ CRAIG PLATT
--------------------------
Name: Craig Platt
Title: Senior Vice President
Confirmed as of the date first written:
KEYCORP STUDENT LOAN TRUST 2000-B
By: Bank One, National Association
not in its individual capacity but solely
as Eligible Lender Trustee
By: /S/ KEITH R. RICHARDSON
-----------------------------------
Name: Keith R. Richardson
Title: Authorized Officer
