[Exhibit 4.8]
Interest Rate Cap Agreement
(Group I and Group II)
[1992 ISDA MASTER AGREEMENT (MULTICURRENCY - CROSS BORDER)]
Date: September 14, 2001
PARTY A
KEY BANK USA, NATIONAL ASSOCATION
By: /S/ XXXXX XXXXX
-----------------------------------
Name: Xxxxx Xxxxx
Title: Senior Vice President
PARTY B
KEYCORP STUDENT LOAN TRUST 2001-A
By: Bank One, National Association, not in its individual
capacity, but solely as Eligible Lender Trustee
By: /S/ XXXXX X. XXXXXXXXXX
---------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Authorized Officer
SCHEDULE
TO THE
ISDA MASTER AGREEMENT
(GROUP I COMMERCIAL PAPER RATE LOANS CAP TRANSACTION)
DATED AS OF
SEPTEMBER 14, 0000
XXXXXXX
XXX XXXX XXX, NATIONAL ASSOCIATION,
A NATIONAL BANKING ASSOCIATION ORGANIZED UNDER THE LAWS OF THE UNITED STATES
("PARTY A"),
AND
KEYCORP STUDENT LOAN TRUST 2001-A,
A TRUST ORGANIZED UNDER THE LAWS OF THE STATE OF DELAWARE
("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 $196,875 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:
--------------------------------------------------------------------------------
PARTY FORM/DOCUMENT/CERTIFICATE DATE BY WHICH COVERED BY
REQUIRED WHICH TO SECTION 3(D)
TO DELIVER BE DELIVERED REPRESENTATION
--------------------------------------------------------------------------------
Party A and Evidence of authority of the party Upon execution Yes
and Party B to enter into this Agreement and the execution of
Sole Transaction (as defined in Part this
5(a)) contemplated hereby and of the Agreement
signatory for such party to this
Agreement and the Confirmation of
such Sole Transaction.
--------------------------------------------------------------------------------
Party A Copy of the most recent Call Report Promptly Yes
filed by Party A with the Office of following
the Comptroller of the Currency. reasonable
demand by
Party B
--------------------------------------------------------------------------------
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
000 Xxxxxx Xxxxxx - 0xx Xxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Trading Desk - Manager, Interest Rate Derivatives
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Address for notices or communications to Party B:
Address: KeyCorp Student Loan Trust 2001-A
c/o Bank One National Association
0 Xxxx Xxx Xxxxx
Xxxxx XX0-0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Services
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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, 2001,
among Key Consumer Receivables LLC, as depositor, Key Bank USA,
National Association, as administrator and master servicer, KeyCorp
Student Loan Trust 2001-A, 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
000 Xxxx Xxxxxx
Xxxxxx, Xxx Xxxx 00000
Attention: Insured Portfolio Management-SF
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(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).
(i) 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:
(i) ELIGIBLE CONTRACT PARTICIPANT. It is an "eligible contract
participant" as defined in Section 1a(12) of the Commodities
Exchange Act, as amended.
(ii) 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.
(iii) 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.
(iv) 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, 2001, between Key Consumer Receivables LLC, as depositor,
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) [INTENTIONALLY OMITTED]
(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)(X) of the Sale and Servicing Agreement
or Section 5.04(b)(X) or 5.04(c)(X) of the Indenture, as defined in
Appendix A of the Sale and Servicing Agreement, (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).
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 2001-A
By: Bank One, National Association, not
in its individual capacity, but
solely as Eligible Lender Trustee
By: /s/ Xxxxx X. Xxxxx By: /s/ Xxxxx X. Xxxxxxxxxx
------------------------- ------------------------------
Name: Xxxxx X. Xxxxx Name: Xxxxx X. Xxxxxxxxxx
Title: Senior Vice President Title: Authorized Officer
Date: September 14, 2001 Date: September 14, 2001
September 14, 2001
Interest Rate (Group I Commercial Paper Rate Loans) Cap Documentation
KEYCORP STUDENT LOAN TRUST 2001-A
c/o Bank One, National Association
Xxx Xxxx Xxx Xxxxx
Xxxxx XX-0000
Xxxxxxx, Xxx, 00000
Fax: (000) 000-0000
cc: (000) 000-0000
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 (Group I Commercial Paper Rate Loans ) Cap Transaction (the
"Transaction") between KEY BANK USA, NATIONAL ASSOCIATION ("Party A") and
KEYCORP STUDENT LOAN TRUST 2001-A ("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) (Group I Commercial Paper Rate
Loans Cap Transaction) dated as of September 14, 2001, entered into by the
parties hereto (the "ISDA Master Agreement").
The definitions and provisions contained in the 2000 ISDA Definitions as
published by the International Swaps and Derivatives Association, Inc. (the
"Definitions"), 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 14, 2001
Effective Date: September 1, 2001
Termination Date: The earliest of (i) the date on which
the outstanding principal amount of the
Group I Notes is reduced to zero, (ii)
September 27, 2011 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 (as
defined in Appendix A of the Sale and
Servicing Agreement), resulting in a
liquidation of the Group I 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 I-A-1 Cap Payment,
the Class I-A-2 Cap Payment and the
Class I-B 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 $196,875
Fixed Rate Payment Date: September 14, 2001
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)(X)(xii) of the Sale and
Servicing Agreement or Sections
5.04(b)(X) NINTH or Section
5.04(c)(X)(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 35-9951102490
Group I Cap Account
3. Other Terms:
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/ XXXXX X. XXXXX
--------------------------------
Name: Xxxxx X. Xxxxx
Title: Senior Vice President
Confirmed as of the date first written:
KEYCORP STUDENT LOAN TRUST 2001-A
By: Bank One, National Association
not in its individual capacity but solely
as Eligible Lender Trustee
By: /s/ XXXXX X. XXXXXXXXXX
-------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Authorized Officer
SCHEDULE
TO THE
ISDA MASTER AGREEMENT
(GROUP II PRIME RATE LOANS CAP TRANSACTION)
DATED AS OF
SEPTEMBER 14, 0000
XXXXXXX
XXX XXXX XXX, NATIONAL ASSOCIATION,
A NATIONAL BANKING ASSOCIATION ORGANIZED UNDER THE LAWS OF THE UNITED STATES
("PARTY A"),
AND
KEYCORP STUDENT LOAN TRUST 2001-A,
A TRUST ORGANIZED UNDER THE LAWS OF THE STATE OF DELAWARE
("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 $53,125 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:
--------------------------------------------------------------------------------
PARTY FORM/DOCUMENT/CERTIFICATE DATE BY WHICH COVERED BY
REQUIRED WHICH TO SECTION 3(D)
TO DELIVER BE DELIVERED REPRESENTATION
--------------------------------------------------------------------------------
Party A and Evidence of authority of the party Upon execution Yes
and Party B to enter into this Agreement and the execution of
Sole Transaction (as defined in Part this
5(a)) contemplated hereby and of the Agreement
signatory for such party to this
Agreement and the Confirmation of
such Sole Transaction.
--------------------------------------------------------------------------------
Party A Copy of the most recent Call Report Promptly Yes
filed by Party A with the Office of following
the Comptroller of the Currency. reasonable
demand by
Party B
--------------------------------------------------------------------------------
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
000 Xxxxxx Xxxxxx - 0xx Xxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Trading Desk - Manager, Interest Rate Derivatives
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Address for notices or communications to Party B:
Address: KeyCorp Student Loan Trust 2001-A
c/o Bank One National Association
0 Xxxx Xxx Xxxxx
Xxxxx XX0-0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Services
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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, 2001,
among Key Consumer Receivables LLC, as depositor, Key Bank USA,
National Association, as administrator and master servicer, KeyCorp
Student Loan Trust 2001-A, 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
000 Xxxx Xxxxxx
Xxxxxx, Xxx Xxxx 00000
Attention: Insured Portfolio Management-SF
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(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).
(i) 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:
(i) ELIGIBLE CONTRACT PARTICIPANT. It is an "eligible contract
participant" as defined in Section 1a(12) of the Commodities
Exchange Act, as amended.
(ii) 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.
(iii) 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.
(iv) 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, 2001, between Key Consumer Receivables LLC, as depositor,
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)(Y) of the Sale and Servicing Agreement
or Section 5.04(b)(Y) or 5.04(c)(Y) of the Indenture as defined in
Appendix A of the Sale and Servicing Agreement (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 2001-A
By: Bank One, National Association, not
in its individual capacity, but
solely as Eligible Lender Trustee
By: /s/ Xxxxx X. Xxxxx By: /s/ Xxxxx X. Xxxxxxxxxx
------------------------- ------------------------------
Name: Xxxxx X. Xxxxx Name: Xxxxx X. Xxxxxxxxxx
Title: Senior Vice President Title: Authorized Officer
Date: September 14, 2001 Date: September 14, 2001
September 14, 2001
Interest Rate (Group II Prime Rate Loans) Cap Documentation
KEYCORP STUDENT LOAN TRUST 2001-A
c/o Bank One, National Association
Xxx Xxxx Xxx Xxxxx
Xxxxx XX-0000
Xxxxxxx, Xxx, 00000
Fax: (000) 000-0000
cc: (000) 000-0000
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 (Group II Prime Rate Loans) Cap Transaction (the
"Transaction") between KEY BANK USA, NATIONAL ASSOCIATION ("Party A") and
KEYCORP STUDENT LOAN TRUST 2001-A ("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) (Group II Prime Rate Loans Cap
Transaction) dated as of September 14, 2001, entered into by the parties hereto
(the "ISDA Master Agreement").
The definitions and provisions contained in the 2000 ISDA Definitions, as
published by the International Swaps and Derivatives Association, Inc. (the
"Definitions"), 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 14, 2001
Effective Date: September 1, 2001
Termination Date: The earliest of (i) the date on which
the outstanding principal amount of the
Group II Notes is reduced to zero, (ii)
September 27, 2011 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 (as
defined in Appendix A of the Sale and
Servicing Agreement), resulting in a
liquidation of the Group II 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 II A-1 Cap Payment
and the Class II 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 $53,125
Fixed Rate Payment Date: September 14, 2001
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)(Y)(xii) of the Sale and
Servicing Agreement or Sections
5.04(b)(Y) NINTH or Section
5.04(c)(Y)(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 35-9951112499
Group II Cap Account
3. Other Terms:
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/ XXXXX X. XXXXX
-----------------------------
Name: Xxxxx X. Xxxxx
Title: Senior Vice President
Confirmed as of the date first written:
KEYCORP STUDENT LOAN TRUST 2001-A
By: Bank One, National Association
not in its individual capacity but
solely
as Eligible Lender Trustee
By: /s/ XXXXX X. XXXXXXXXXX
-------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Authorized Officer
