[Exhibit 4.5]
Interest Rate Swap 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
In this Agreement:-
(a) "SPECIFIED ENTITY" means in relation to Party A for the purpose of:-
SECTION 5(A)(V) Not Applicable.
---------------
SECTION 5(A)(VI) Not Applicable.
----------------
SECTION 5(A)(VII) Not Applicable.
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SECTION 5(B)(IV) Not Applicable.
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and in relation to Party B for the purpose of:-
SECTION 5(A)(V) Not Applicable.
---------------
SECTION 5(A)(VI) Not Applicable.
----------------
SECTION 5(A)(VII) Not Applicable.
-----------------
SECTION 5(B)(IV) Not Applicable.
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(b) "SPECIFIED TRANSACTION" will have the meaning specified in Section 14
of this Agreement.
(c) "ADDITIONAL TERMINATION EVENT" will not apply to Party A and will
apply, with respect to Redemption Event only, to Party B. The
occurrence of a Redemption Event will constitute an Additional
Termination Event in respect of which Party B will be the sole
Affected Party.
(d) The provisions of Section 5(a) and Section 5(b) will apply to Party A
and to Party B as follows:
The designation below of an Event of Default as being "Applicable" to
a specific party means that upon the occurrence and continuation of
such an Event of Default with respect to such party, the other party
shall have the right of a Non-defaulting Party to designate an Early
Termination Date for the Sole Transaction (as defined below) under
Section 6 of this Agreement, and conversely, the designation of an
Event of Default as being "Not Applicable" to a party means that upon
the occurrence and continuation of such an Event of Default with
respect to such party, the other party shall not have the right to
designate an Early Termination Date for the Sole Transaction with
respect to such event under Section 6 of this Agreement.
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SECTION 5(A) PARTY A PARTY B
<S> <C> <C>
(i) "Failure to Pay or Deliver" Applicable.
"Failure to Pay or Deliver" is Applicable to Party B; provided
that Party B has funds available to make payments in
accordance with the terms of the Indenture and the Trustee has
failed to make any such payments in violation of the terms of
the Indenture.
(ii) "Breach of Agreement" Applicable. Not Applicable.
(iii) "Credit Support Default" Applicable. Not Applicable.
(iv) "Misrepresentation" Applicable. Not Applicable.
(v) "Default under Specified Transaction" Not Applicable. Not Applicable.
(vi) "Cross Default" Not Applicable. Not Applicable.
(vii) "Bankruptcy" Applicable. Applicable.
(viii)"Merger Without Assumption" Applicable. Not Applicable.
(ix) "Additional Event of Default" Not Applicable. Applicable
specified in Part 1(h) (Acceleration
of Notes)
</TABLE>
SECTION 5(B)
Neither party shall be entitled to designate an Early Termination Date
as a result of the occurrence and continuation of an event described
in Section 5(b)(iii) (Tax Event Upon Merger).
(e) PAYMENTS ON EARLY TERMINATION. For the purpose of Section 6(e):
(i) Except as provided in Appendix I (Redemption of Notes), Market
Quotation will apply.
(ii) The Second Method will apply.
(f) "TERMINATION CURRENCY" means United States Dollars ("USD").
(g) The "AUTOMATIC EARLY TERMINATION" provisions of Section 6(a) will not
apply to Party A or Party B.
(h) ADDITIONAL EVENT OF DEFAULT. Section 5(a) of this Agreement is hereby
amended by: (i) deleting the word "or" at the end of Section
5(a)(vii), (ii) deleting the period at the end of Section 5(a)(viii)
and adding "; or" at the end thereof and (iii) adding the following
language at the end of Section 5(a):
"(ix) ADDITIONAL EVENT OF DEFAULT. The principal of any class of Notes
shall have been declared or become immediately due and payable in
accordance with the terms of the Indenture (an "Acceleration of
Notes") following an "event of default" thereunder (it being
understood that such event will constitute an Event of Default solely
with respect to Party B)."
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 and Party A each agree to complete (accurately and
in a manner reasonably satisfactory to the other Party),
execute, and deliver to such other Party a United States
Internal Revenue Service Form W-9, or any successor form,
which will certify that such Party 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 a Party, and (iii) promptly upon
learning that any such form previously provided by a Party
has become obsolete or incorrect.
(b) Other documents to be delivered are:
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PARTY REQUIRED TO FORM/DOCUMENT/CERTIFICATE DATE BY WHICH TO COVERED BY SECTION
DELIVER BE DELIVERED 3(D) REPRESENTATION
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Party A and Party Evidence of authority of the party to enter Upon execution Yes
B into this Agreement and the Sole Transaction of this Agreement
(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 not
apply.
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 this 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) EARLY TERMINATION.
(1) Section 6(b)(ii) is hereby amended by adding at the end of the
first paragraph the following:
", provided that the party seeking to make the transfer to avoid
a Termination Event shall deliver to Party B (in the case of
transfers by Party A) or to Party A (in the case of transfers by
Party B) written confirmation from each Rating Agency then rating
any class of Notes that such transfer will not result in its
then-current rating of each class of Notes being withdrawn,
suspended or lowered without regard to the Securities Guaranty
Insurance Policy."
(2) Notwithstanding anything to the contrary in this Agreement, if
the Early Termination Date of the Sole Transaction occurs or is
effectively designated, Party A and Party B agree as follows:
(i) The Calculation Agent shall calculate an amount that would be
payable to or by Party B under this Agreement in respect of such
Early Termination Date (such amount, including any Net Payment or
Net Receipt constituting any portion thereof, the "Termination
Payment").
(ii) To the extent that Party A is required to pay the
Termination Payment to Party B, Party A shall pay such amount in
accordance with the terms of this Agreement.
(iii) To the extent that Party B is required to pay the
Termination Payment to Party A where:
(A) Party B is the Defaulting Party (provided, however, that
to the extent that Party B is the Defaulting Party with respect
to an Event of Default specified in Section 5(a)(i) of this
Agreement (Failure to Pay or Deliver) this clause (A) shall apply
only with respect to the Net Payment (and not the remainder of
the Termination Payment)), Party B shall pay such amount in
accordance with Section 5.04(b) or 5.04(c), as applicable, of the
Indenture, and Section 5.05(c) of the Sale and Servicing
Agreement, as applicable.
(B) Party A is the Defaulting Party, the Early Termination
Date arises from a Termination Event (other than an Additional
Termination Event) or a Redemption Event, or Party B is the
Defaulting Party with respect to an Event of Default specified in
Section 5(a)(i) (exclusive of any Net Payment paid pursuant to
Clause (A)), Party B shall pay such Termination Payment in
accordance with this Agreement.
(C) Party B replaces Party A with a successor to Party A,
Party B and Party A agree to cause the successor to Party A to
pay the Termination Payment (or such lesser amount actually paid
by such successor) to Party A. Any amounts actually received by
Party A under this clause (C) shall reduce the amounts payable
pursuant to clauses (A) and (B); Party A shall pay to Party B any
excess of amounts actually received by Party A under this clause
(C) over the Termination Payment.
(j) TRANSFER. Section 7 is hereby amended by:
(1) (i) adding the words "(and notice of the transferee to)" after
the word "of" on the third line thereof, and (ii) adding the
words "(subject to providing three Business Days prior written
notice of the transferee to the other party, to the Securities
Insurer and to each Rating Agency)" after the word "transfer" on
the fourth and seventh line thereof.
(2) adding at the end thereof:
"Any party making any such transfer shall deliver to the other
party and the Securities Insurer written confirmation from
each Rating Agency then rating any class of Notes that such
transfer will not result in its then-current rating of each
class of Notes being withdrawn, suspended or lowered without
regard to the Securities Guaranty Insurance Policy."
(k) SWAP EXEMPTION.
(1) The parties agree that this Agreement and the Sole Transaction
are intended to constitute a "swap agreement" within the meaning
of Commodity Futures Trading Commission ("CFTC") Regulations
Section 35.1(b)(1) and Section 101(53)(B) of the U.S. Bankruptcy
Code;
(2) Each party represents to the other that it is an "eligible swap
participant" within the meaning of CFTC Regulations Section
35.1(b)(2);
(3) The parties agree that neither this Agreement nor the Sole
Transaction is one of a fungible class of agreements that are
standardized as to their material economic terms, within the
meaning of CFTC Regulations Section 35.2(b); and
(4) Each party represents to the other that the creditworthiness of
the other party was or will be a material consideration in
entering into or determining the terms of this Agreement and the
Sole Transaction, including pricing, cost or credit enhancement
terms of this Agreement or the Sole Transaction, within the
meaning of CFTC Regulations Section 35.2(c).
(l) WAIVER OF RIGHT TO TRIAL BY JURY. EACH OF THE PARTIES HEREBY
IRREVOCABLY WAIVES ANY AND ALL RIGHT TO A TRIAL BY JURY WITH RESPECT
TO ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT
OR ANY TRANSACTION.
(m) 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 (1) (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 and (2)
the written affirmation of each Rating Agency then rating any class of
Notes that such amendment, modification or waiver shall not adversely
affect its then-current rating of each class of Notes without regard
to the Securities Guaranty Insurance Policy."
(n) 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 the Sale and Servicing Agreement 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).
(o) NO SUSPENSION OF PAYMENTS. Notwithstanding Section 2(a)(iii) of
this Agreement, Party A shall not suspend any payments due under
Section 2(a)(iii) unless:
(1) the principal of any class of Notes shall have been accelerated in
accordance with the terms of the Indenture following an Event of
Default thereunder;
(2) the Securities Insurer has elected not to cure a payment default
by Party B under the circumstances described in Part 1(d) of this
Schedule after the Securities Insurer has been given three Business
Days notice by Party A of such payment default and such default is
continuing; or
(3) an Early Termination Date for the Sole Transaction has occurred or
effectively been designated pursuant to the terms hereof.
(p) REDEMPTION EVENT.
(i) A "Redemption Event" will occur upon the delivery by Party B (or
its designee) to Party A of a "Party B Response" (as defined in
Appendix I) accepting Party A's offer to terminate the Sole
Transaction as provided in Appendix I hereto; provided, however, that
Party B shall not deliver its Party B Response without the prior
written consent (which consent shall not be unreasonably withheld) of
the Securities Insurer (for so long as no Securities Insurer Default
has occurred and is continuing). Such Party B Response shall be
delivered on or before the related Redemption Date (as defined in the
Indenture) and shall certify that the Minimum Purchase Price (as
defined in the Indenture) has been deposited into the appropriate
Trust Account (as defined in the Indenture). The parties hereto
acknowledge and agree that the Indenture Trustee (as defined in the
Indenture) may deliver such Party B Response on behalf of Party B.
Party A hereby agrees that upon receipt of such Party B Response from
the Indenture Trustee certifying that the Minimum Purchase Price has
been deposited in the Collection Account, Party A shall immediately
designate the Redemption Date as an Early Termination Date.
Notwithstanding Section 6(d)(ii), the Payment Date in respect of a
Redemption Event shall be the Early Termination Date so designated.
For avoidance of doubt, no Redemption Event shall occur and no Early
Termination Date shall be effectively designated in respect thereof
unless the Minimum Purchase Price shall have been deposited into the
applicable Trust Account(s) pursuant to the Indenture and, for so long
as no Securities Insurer Default has occurred and is continuing, the
prior written consent (which consent shall not be unreasonably
withheld) of the Securities Insurer has been obtained with respect to
the delivery of Party B's Response to Party A.
(ii) The parties hereto acknowledge and agree that Key Bank USA,
National Association, as Administrator under the Administration
Agreement, may deliver on behalf of Party B any "Party B Notices"
required or permitted by Appendix I hereto; provided, that in no event
shall a Redemption Event occur upon delivery of any such Party B
Notice from the Administrator.
(q) ADDITIONAL DEFINITIONS. Capitalized terms used in this Schedule
shall have the meaning set forth in the Confirmation, the Indenture
or, if not therein, the Sale and Servicing Agreement.
(r) NOTE RELATED PROVISIONS. The parties acknowledge that this
Agreement is intended to relate to the Notes, which are insured
pursuant to Note Guaranty Insurance Policy No. 33098 (the "Securities
Guaranty Insurance Policy") issued by MBIA Insurance Corporation
("MBIA") and as a result, hereby further agree as follows (for so long
as no Securities Insurer Default has occurred and is continuing):
(i) APPLICATION OF TERMINATION EVENTS AND EVENTS OF DEFAULT.
Notwithstanding anything in this Agreement to the contrary, Party
B shall not be entitled to designate an Early Termination Date
following any Event of Default, Redemption Event or Termination
Event without the prior written consent (which consent shall not
be unreasonably withheld) of the Securities Insurer and must
designate an Early Termination Date at the Securities Insurer's
direction if the circumstances would permit Party B to then make
such a designation.
(ii) CURE PERIOD. Notwithstanding Section 5(a)(i) of this
Agreement, an Event of Default in respect of Party B under
Section 5(a)(i) shall not occur unless there is a failure to pay
or deliver with respect to Party B under the circumstances
described in Part 1(d) of this Schedule by Party B and the
Securities Insurer has not (after having received notification of
such a default from Party A) chosen to make such performance on
Party B's behalf within three Business Days of such notice.
(iii) SECURITIES INSURER-DIRECTED TERMINATION FOLLOWING CURE. If
an Event of Default under Section 5(a)(i) of this Agreement
occurs with respect to Party B as the Defaulting Party under the
circumstances described in Part 1(d) hereof and the Securities
Insurer has elected to make a payment on Party B's behalf, then
the parties agree that (A) Party B's payment obligation SHALL NOT
have been satisfied, (B) such payment default shall be continuing
with respect to Party B and shall accrue interest due from Party
B at the Late Interest Rate, (C) Party A, upon receipt of such
payment on Party B's behalf from the Securities Insurer shall be
deemed to have assigned its right to such payment from Party B
(including interest on such payment) to the Securities Insurer,
and (D) the Securities Insurer shall have the right (but no
obligation) to direct Party A to designate an Early Termination
Date against Party B with respect to Party B's payment default.
(iv) DEDUCTION OR WITHHOLDING FOR TAX. Notwithstanding Section 14
of this Agreement, in relation to any payment required to be made
by Party B, no Tax shall be an Indemnifiable Tax, and in relation
to any payment required to be made by Party A, each and every Tax
shall be an Indemnifiable Tax.
(v) REPRESENTATIONS AND AGREEMENTS. Each party agrees that each
of its representations and agreements in this Agreement is
expressly made to and for the benefit of the Securities Insurer.
(vi) THE SECURITIES INSURER. Party A and Party B hereby each
acknowledge and agree that the Securities Insurer shall be an
express third-party beneficiary (and not merely an incidental
third-party beneficiary) of this Agreement and the obligations of
each such party under this Agreement, as such, entitled to
enforce this Agreement and the terms of any Transaction hereunder
against either Party A or Party B on its own behalf and/or on
behalf of the holders of the related Notes and otherwise shall be
afforded all remedies available hereunder or otherwise afforded
by law against the parties hereto to redress any damage or loss
incurred by the Securities Insurer or the Notes including, but
not limited to, fees (including professional fees), costs and
expenses incurred by the Securities Insurer which are related to,
or resulting from any breach by such party of its obligations
hereunder.
(vii) SECURITIES INSURER ROLE. Party A and Party B hereby each
acknowledge and agree that the Securities Insurer is not
obligated to cure any default by Party B under this Agreement,
but that in connection with the Securities Insurer's best
judgment, the Securities Insurer is expressly granted, in partial
consideration for the issuance of the Securities Guaranty
Insurance Policy, the rights specified in this Agreement,
including, but not limited to, the right to effect cures of
payment defaults by Party B and the right to receive certain
notices.
(viii) NOTICES. A copy of each notice or other communication
between the parties with respect to this Agreement (including,
without limitation, Appendix I hereto) must be forwarded to the
Securities Insurer.
(ix) "REFERENCE MARKET MAKERS." The definition of "Reference
Market-makers" set forth in Section 12 of this Agreement shall be
amended in its entirety to read as follows:
"Reference Market-makers" means four (4) leading dealers in
the relevant swap market selected by the party determining a
Market Quotation in good faith (a) from among dealers of the
highest credit standing which satisfy all the criteria that
such party applies generally at the time in deciding whether
to offer or to make an extension of credit and (b) to the
extent practicable, from among dealers having an office in
the same city. The rating classification assigned to any
outstanding long-term senior debt securities issued by such
dealers shall be at least (1) Aa or higher as determined by
Moody's Investors Service Inc., (2) AA or higher as
determined by Standard & Poor's Ratings Services, a division
of The McGraw-Hill Companies, Inc. or (3) AA or higher as
determined by Fitch (if rated by Fitch), provided, however,
that, in any case, if Market Quotations cannot be determined
by four (4) such dealers, the party making the determination
of the Market Quotation may designate, with the consent
(which consent shall not be unreasonably withheld) of the
other party and the Insurer, one (1) or more leading dealers
whose long-term senior debt bears a lower investment grade
rating.
<PAGE>
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
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Name: Craig Platt Name: Keith R. Richardson
Title: Senior Vice President Title: Authorized Officer
Date: 9/15/2000 Date: 9/15/2000
<PAGE>
APPENDIX I
REDEMPTION OF NOTES.
1. As promptly as practicable, but in any event not later than two
Business Days after delivery by Party B (or Party B's designee, in either case
at the direction of, or with the consent (which consent shall not be
unreasonably withheld) of, the Securities Insurer, but only for so long as no
Securities Insurer Default has occurred and is continuing) to Party A of a
notice of proposed redemption (the "Redemption") and request for a quotation of
Termination Payment (the "Party B Notice"), Party A will give notice by
telephone to Party B (which notice will be promptly confirmed in writing to
Party B)(the "Party A Response"):--
(i) offering to terminate the Sole Transaction upon such Redemption;
and
(ii) stating in good faith and in reasonable detail the Termination
Payment (the "Redemption Payment") that will be payable by Party B to Party A or
by Party A to Party B on the proposed Redemption Date (as defined in the
Indenture) if the offer is accepted at the time of such offer (or through such
later time, if any, as may be expressed in the offer in the discretion of Party
A) and the Redemption is effected on the Redemption Date; provided, however,
that, if such offer is not accepted at such time, Party A will, promptly after
requests therefor by Party B (at the direction of, or with the consent (which
consent shall not be unreasonably withheld) of, the Securities Insurer), make
new offers to effect the termination of the Sole Transaction and will make such
new offers in accordance with reasonable market practice until 11:00 a.m. New
York City time on the Business Day two Business Days prior to the Redemption
Date (the "Deadline"). Any such new offer will contain the statements required
by the preceding clauses (i) and (ii) and will also be a Party A Response,
except that:--
(x) only the Party A Response will determine the period during which
new offers are required to be accepted; and
(y) in the case of the Final Offer (as defined below), "Market
Quotation" will be substituted for "Loss" for purposes of determining the
Redemption Payment.
The last such new offer is referred to herein as the "Final Offer."
The Final Offer will be identified as such in the relevant Party A Response. The
Final Offer will not be delivered earlier than the Business Day on which the
Deadline occurs. The Final Offer will be communicated by telephone to Party B
(which Final Offer will be promptly confirmed in writing to Party B).
2. Each Party A Response will describe the Redemption Payment, even if
the Redemption Payment remains the same and, except as described above with
respect to the Final Offer, each Redemption Payment will be determined using
"Loss" and "Second Method" and based on Party B as the sole Affected Party.
3. As promptly as practicable, but in any event not later than the end
of the period during which an offer may be accepted pursuant to the relevant
Party A Response, Party B (with the consent (which consent shall not be
unreasonably withheld) of, or at the direction of, the Securities Insurer, but
only for so long as no Securities Insurer Default has occurred and is
continuing), acting in good faith and in accordance with reasonable derivatives
market practice, will accept the offer expressed therein by notice (the "Party B
Response") to Party A. Such notice will be by telephone, will be promptly
confirmed in writing and will thereupon be effective, all in accordance with
usual derivatives markets transactions. If the offer is accepted as aforesaid,
the Redemption will be effective on the Redemption Date on the terms expressed
in the last relevant Party A Response as accepted by the Party B Response
(subject to the conditions set forth in Part 5(o) of this Agreement). The
Redemption Payment will be the amount described in the Party A Response accepted
by Party B.
4. Party B (or its designee) will have the right to make reasonable
request of Party A for indications of Redemption Payments based on proposed
Redemptions as contemplated by Paragraphs 1 through 3 above, and Party A will
supply such indications promptly and in good faith following any such request.
Except as provided in Paragraphs 1 through 3 above and Part 5(o) of this
Agreement, neither Party B nor its designee will be obligated to effect any such
Redemption.
<PAGE>
September 15, 2000
Interest Rate (Basis Spread) Swap 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) Swap 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: October 1, 2000
Termination Date: The earlier of (i) the date on
which the outstanding principal
amount of the Notes is reduced to
zero and all amounts then owing to
the Securities Insurer have been
paid and (ii) 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)
Netting: On any Payment Date, the
obligations of the Parties shall be
netted such that the Party with the
greater Floating Rate Payment
obligation shall pay to the other
Party the difference between the
Floating Rate Payment owed by it to
the other Party and the Floating
Rate Payment owed to it by the
other Party.
Collection Periods: With respect to the first
Distribution Date, the 3 Monthly
Calculation Periods immediately
preceding the month in which such
Distribution Date occurs. With
respect to any subsequent
Distribution Date, the 3 Monthly
Calculation Periods immediately
preceding the month in which the
Distribution Date occurs.
Monthly Calculation Periods: For each calendar month, the period
beginning on and including the
first day of such month and ending
on and including the last day of
such month. For the avoidance of
doubt, no Business Day Convention
shall apply to the calculation of
the number of days in a Monthly
Calculation Period.
Floating Rate Amounts Payable By Party A:
Party A
Floating Rate Payments: For each Collection Period, the sum
of the Party A Floating Rate
Payments for each Monthly
Calculation Period. The Party A
Floating Rate Payment for any
Monthly Calculation Period shall be
the product of:
(1) Three-Month LIBOR plus
2.60% calculated in the same
manner and on such dates as
such index is calculated for
the LIBOR Indexed Securities
for the Interest Period that
ends on the Distribution Date
to which such Collection
Period relates;
(2) the principal balance of
the Prime Rate Loans as
determined as of the first day
of the Monthly Calculation
Period; and
(3) a fraction, the numerator
of which is the actual number
of days in the Monthly
Calculation Period and the
denominator of which is 360.
In addition, on any Payment Date
Party A shall be obligated to pay
any Net Trust Swap Receipt
Carryover Shortfall Amount that
exists on such Payment Date.
Party A Floating Rate
Payment Dates: With respect to each Collection
Period, the Distribution Date to
which such Collection Period
relates.
Floating Rate Amounts Payable by Party B:
Party B Floating Rate
Payments: For each Collection Period, the sum
of the Party B Floating Rate
Payments for each Monthly
Calculation Period. The Party B
Floating Rate Payment for any
Monthly Calculation Period shall be
the product of:
(1) the Prime Rate as
determined as of the first day
of the Monthly Calculation
Period;
(2) the aggregate principal
balance of Prime Rate Loans as
determined as of the first day
of the Monthly Calculation
Period; and
(3) a fraction, the numerator
of which is the actual number
of days in the related monthly
period and the denominator of
which is 360.
In addition, on any Payment Date
Party B shall be obligated to pay
any Net Trust Swap Payment
Carryover Shortfall Amount that
exists on such Payment Date, but
only to the extent that funds are
available and only in accordance
with the provisions of the Sale and
Servicing Agreement.
Party B Floating Rate
Payment Dates: With respect to each Collection
Period, the Distribution Date to
which such Collection Period
relates.
Fixed Rate Payment:
Fixed Rate Payer: Party B
Fixed Rate Payment: Zero
Fixed Rate Payment Date: September 15, 2000
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 35-214-101-3511
3. OTHER TERMS:
If the rating of Party A is withdrawn, suspended or reduced below A3 by Moody's,
A- by Standard & Poor's or A- by Fitch (if rated by Fitch), Party A shall be
required, no later than the 30th day following such rating withdrawal,
suspension or downgrade, at Party A's expense, to either (i) obtain a substitute
swap counterparty acceptable to the Securities Insurer that has a counterparty
rating of at least A3 by Moody's, A- by Standard & Poor's and A- by Fitch (if
rated by Fitch) or (ii) enter into arrangements reasonably satisfactory to the
Indenture Trustee and the Securities Insurer, including collateral arrangements,
guarantees or letters of credit, which arrangements in the view of such Rating
Agency will result in the elimination of the effect or impact of such rating
withdrawal, suspension or downgrade on the Noteholders and the Securities
Insurer without regard to the Securities Guaranty Insurance Policy. Failure to
comply with this obligation shall constitute an Additional Termination Event
with Party A as the Affected Party.
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.
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
