1
Exhibit 99.1
[EXECUTION]
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SALE AND SERVICING
AGREEMENT
among
KEY AUTO FINANCE TRUST 1999-1,
as
Issuer
KEY CONSUMER ACCEPTANCE CORPORATION,
as
Seller
KEY BANK USA, NATIONAL ASSOCIATION,
as Servicer
and
BANKERS TRUST COMPANY,
as Indenture Trustee
Dated as of March 24, 1999
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TABLE OF CONTENTS
Page
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ARTICLE I. DEFINITIONS......................................................1
SECTION 1.1. Definitions........................................1
SECTION 1.2. Other Interpretive Provisions......................1
ARTICLE II CONVEYANCE OF RECEIVABLES........................................2
SECTION 2.1. Conveyance of Receivables..........................2
ARTICLE III. THE RECEIVABLES..................................................3
SECTION 3.1. Representations and Warranties as to Each
Receivable.........................................3
SECTION 3.2. Representations and Warranties as to the
Receivables in the Aggregate.......................6
SECTION 3.3. Repurchase upon Breach.............................6
SECTION 3.4. Custodian of Receivable Files......................7
ARTICLE IV. ADMINISTRATION AND SERVICING OF RECEIVABLES.....................10
SECTION 4.1. Duties of Servicer................................10
SECTION 4.2. Collection of Receivable Payments.................11
SECTION 4.3. Realization upon Receivables......................11
SECTION 4.4. Physical Damage Insurance.........................12
SECTION 4.5. Maintenance of Security Interests in Financed
Vehicles..........................................13
SECTION 4.6. Covenants of Servicer.............................13
SECTION 4.7. Purchase by Servicer upon Breach..................13
SECTION 4.8. Servicing Fee.....................................14
SECTION 4.9. Servicer's Report.................................14
SECTION 4.10. Annual Statement as to Compliance; Notice of
Default...........................................15
SECTION 4.11. Annual Independent Certified Public Accountants'
Report............................................15
SECTION 4.12. Access to Certain Documentation and Information
Regarding Receivables.............................16
SECTION 4.13. Reports to the Commission.........................16
SECTION 4.14. Reports to the Rating Agencies....................16
SECTION 4.15. Servicer Expenses.................................16
ARTICLE V. DISTRIBUTIONS; RESERVE ACCOUNT; STATEMENTS TO
CERTIFICATEHOLDERS AND NOTEHOLDERS..............................16
SECTION 5.1. Establishment of Trust Accounts...................16
SECTION 5.2. Collections.......................................18
SECTION 5.3. Additional Deposits...............................19
SECTION 5.4. Distributions.....................................19
SECTION 5.5. Statements to Certificateholders and Noteholders..22
SECTION 5.6. Net Deposits......................................23
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SECTION 5.7. Reserve Account...................................23
ARTICLE VI. SELLER..........................................................23
SECTION 6.1. Representations of Seller.........................23
SECTION 6.2. Continued Existence...............................25
SECTION 6.3. Liability of Seller; Indemnities..................25
SECTION 6.4. Merger or Consolidation of, or Assumption of the
Obligations of, Seller............................26
SECTION 6.5. Limitation on Liability of Seller and Others......27
SECTION 6.6. Seller May Own Certificates or Notes..............27
SECTION 6.7 Indebtedness of Seller............................27
ARTICLE VII. SERVICER........................................................27
SECTION 7.1. Representations of Servicer.......................27
SECTION 7.2. Indemnities of Servicer...........................29
SECTION 7.3. Merger or Consolidation of, or Assumption of the
Obligations of, Servicer..........................30
SECTION 7.4. Limitation on Liability of Servicer and Others....31
SECTION 7.5. Key Bank USA Not To Resign as Servicer............31
SECTION 7.6. Existence.........................................31
SECTION 7.7. Servicer May Own Notes or Certificates............31
ARTICLE VIII. SERVICER TERMINATION EVENTS.....................................32
SECTION 8.1. Servicer Termination Event........................32
SECTION 8.2. Appointment of Successor..........................33
SECTION 8.3. Payment of Servicing Fee..........................34
SECTION 8.4. Notification to Noteholders and
Certificateholders................................34
SECTION 8.5. Waiver of Past Defaults...........................34
ARTICLE IX. TERMINATION.....................................................35
SECTION 9.1. Optional Purchase of All Receivables;
Termination Notice................................35
ARTICLE X. MISCELLANEOUS PROVISIONS........................................35
SECTION 10.1. Amendment........................................35
SECTION 10.2. Protection of Title to Trust Property............37
SECTION 10.3. Notices..........................................39
SECTION 10.4. Assignment.......................................39
SECTION 10.5. Limitations on Rights of Others..................39
SECTION 10.6. Severability.....................................39
SECTION 10.7. Separate Counterparts............................39
SECTION 10.8. Headings.........................................40
SECTION 10.9. Governing Law....................................40
SECTION 10.10. Assignment to Indenture Trustee..................40
SECTION 10.11. Nonpetition Covenant.............................40
SALE AND SERVICING AGREEMENT
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SECTION 10.12. Limitation of Liability of Owner Trustee and
Indenture Trustee................................40
SECTION 10.13. Further Assurances...............................41
SECTION 10.14. No Waiver; Cumulative Remedies...................41
SALE AND SERVICING AGREEMENT
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SCHEDULES
Schedule 1 -- Schedule of Receivables
Schedule 2 -- Location of Receivables Files
EXHIBITS
Exhibit A -- Form of Monthly Certificateholder Statement
Exhibit B -- Form of Monthly Noteholder Statement
Exhibit C -- Form of Servicer's Report
APPENDIX
Appendix X -- Definitions
SALE AND SERVICING AGREEMENT
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SALE AND SERVICING AGREEMENT dated as of March 24, 1999 (this "Agreement")
among KEY AUTO FINANCE TRUST 1999-1, a Delaware business trust ("Issuer"), KEY
CONSUMER ACCEPTANCE CORPORATION, a Delaware corporation (in its capacity as
seller, "Seller"), KEY BANK USA, NATIONAL ASSOCIATION, (in its capacity as
servicer, "Servicer") and BANKERS TRUST COMPANY, a New York banking corporation
(in its capacity as indenture trustee, "Indenture Trustee").
WHEREAS, Issuer desires to purchase from Seller a portfolio of receivables
arising in connection with Motor Vehicle Loans purchased or originated by Key
Bank USA and sold to Seller under the Purchase Agreement;
WHEREAS, Seller is willing to sell such receivables to Issuer; and
WHEREAS, Servicer is willing to service such receivables.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, the parties hereto agree as follows:
ARTICLE I. DEFINITIONS.
SECTION 1.1. Definitions. Capitalized terms are used in this Agreement as
defined in Appendix X to this Agreement.
SECTION 1.2. Other Interpretive Provisions. For purposes of this
Agreement, unless the context otherwise requires: (a) accounting terms not
otherwise defined in this Agreement, and accounting terms partly defined in this
Agreement to the extent not defined, shall have the respective meanings given to
them under generally accepted accounting principles; (b) terms defined in
Article 9 of the UCC as in effect in the relevant jurisdiction and not otherwise
defined in this Agreement are used as defined in that Article; (c) the words
"hereof," "herein" and "hereunder" and words of similar import refer to this
Agreement as a whole and not to any particular provision of this Agreement; (d)
references to any Article, Section, Schedule, Appendix or Exhibit are references
to Articles, Sections, Schedules, Appendices and Exhibits in or to this
Agreement and references to any paragraph, subsection, clause or other
subdivision within any Section or definition refer to such paragraph,
subsection, clause or other subdivision of such Section or definition; (e) the
term "including" means "including without limitation"; (f) except as otherwise
expressly provided herein, references to any law or regulation refer to that law
or regulation as amended from time to time and include any successor law or
regulation; (g) references to any Person include that Person's successors and
assigns; and (h) headings are for purposes of reference only and shall not
otherwise affect the meaning or interpretation of any provision hereof.
SALE AND SERVICING AGREEMENT
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ARTICLE II. CONVEYANCE OF RECEIVABLES.
SECTION 2.1. Conveyance of Receivables. In consideration of Issuer's
delivery to, or upon the order of, Seller of Notes and Certificates, in
aggregate principal amounts equal to the initial principal amounts of the Notes
and the initial Certificate Balance, respectively, Seller does hereby sell,
transfer, assign, set over and otherwise convey to Issuer, without recourse,
subject to the obligations herein (collectively, the "Trust Property"):
(a) all right, title and interest of Seller in and to the Receivables, and
all moneys received thereon on or after the Cutoff Date;
(b) all right, title and interest of Seller in the security interests in
the Financed Vehicles granted by Obligors pursuant to the Receivables and any
other interest of Seller in the Financed Vehicles and any other property that
shall secure the Receivables;
(c) the interest of Seller in any proceeds with respect to the Receivables
from claims on any Insurance Policies covering Financed Vehicles or the Obligors
or from claims under any lender's single interest insurance policy naming
Initial Seller as an insured;
(d) rebates of premiums relating to Insurance Policies and rebates of
other items such as extended warranties financed under the Receivables, in each
case, to the extent the Servicer would, in accordance with its customary
practices, apply such amounts to the Principal Balance of the related
Receivable;
(e) the interest of Seller in any proceeds from (i) any Receivable
repurchased by a Dealer, pursuant to a Dealer Agreement, as a result of a breach
of representation or warranty in the related Dealer Agreement, (ii) a default by
an Obligor resulting in the repossession of the Financed Vehicle under the
applicable Motor Vehicle Loan or (iii) any Dealer Recourse or other rights
relating to the Receivables under Dealer Agreements;
(f) all right, title and interest in all funds on deposit from time to
time in the Certificate Distribution Account and the Trust Accounts, and in all
investments and proceeds thereof (but excluding all investment income thereon);
(g) all right, title and interest of Seller under the Purchase Agreement,
including the right of Seller to cause the Initial Seller to repurchase
Receivables from Seller;
(h) all right, title and interest of Seller in any instrument or document
relating to the Receivables; and
(i) the proceeds of any and all of the foregoing.
The sale, transfer, assignment, setting over and conveyance made hereunder
shall not constitute and is not intended to result in an assumption by Issuer of
any obligation of the Initial
SALE AND SERVICING AGREEMENT
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Seller to the Obligors, the Dealers or any other Person in connection with the
Receivables and the other assets and properties conveyed hereunder or any
agreement, document or instrument related thereto.
ARTICLE III. THE RECEIVABLES.
SECTION 3.1. Representations and Warranties as to Each Receivable. Seller
hereby makes the following representations and warranties as to each Receivable
conveyed by it to Issuer hereunder on which Issuer shall rely in acquiring the
Receivables. Unless otherwise indicated, such representations and warranties
shall speak as of the Closing Date, but shall survive the sale, transfer and
assignment of the Receivables to Issuer and the pledge thereof to Indenture
Trustee pursuant to the Indenture.
(a) Characteristics of Receivables. The Receivable has been fully and
properly executed by the parties thereto and (i) is a Direct Loan made by
Originator or has been originated by a Dealer in the ordinary course of such
Dealer's business and has been purchased by Originator, in either case, in the
ordinary course of Originator's business and in accordance with such
Originator's underwriting standards to finance the retail sale by a Dealer of
the related Financed Vehicle or has otherwise been acquired by the Initial
Seller, (ii) the Originator of which has underwriting standards that require
physical damage insurance to be maintained on the related Financed Vehicle,
(iii) is secured by a valid, subsisting, binding and enforceable first priority
security interest in favor of the Initial Seller in the Financed Vehicle
(subject to administrative delays and clerical errors on the part of the
applicable government agency and to any statutory or other lien arising by
operation of law after the Closing Date which is prior to such security
interest), which security interest is assignable together with such Receivable,
and has been so assigned to Seller, and subsequently assigned by Seller to
Issuer, (iv) contains customary and enforceable provisions such that the rights
and remedies of the holder thereof are adequate for realization against the
collateral of the benefits of the security, (v) provided, at origination, for
level monthly payments (provided, that the amount of the last payment may be
different), which fully amortize the Initial Principal Balance over the original
term, (vi) provides for interest at the Contract Rate specified in the Schedule
of Receivables, (vii) was originated in the United States and (viii) constitutes
"chattel paper" as defined in the UCC.
(b) Individual Characteristics. The Receivables have the following
individual characteristics as of the Cutoff Date; (i) each Receivable is secured
by a Motor Vehicle; (ii) each Receivable has a Contract Rate of at least 6.74%
and not more than 29.00%; (iii) each Receivable had a remaining term, as of the
Cutoff Date, of not less than six months and not more than 84 months; (iv) each
Receivable had an Initial Principal Balance of not less than $102.34 and not
more than $49,893.76; (v) no Receivable was more than 30 days past due as of the
Cutoff Date; (vi) no Financed Vehicle had been repossessed as of the Cutoff
Date; (vii) no Receivable is subject to a force placed Physical Damage Insurance
Policy on the related Financed Vehicle; and (viii) the Dealer of the Financed
Vehicle has no participation in, or other right to receive, any proceeds of the
Receivable. The Receivables were selected using selection procedures that were
not intended by the Initial Seller or Seller to be adverse to the Holders.
SALE AND SERVICING AGREEMENT
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(c) Schedule of Receivables. The information with respect to each
Receivable set forth in the Schedule of Receivables, including (without
limitation) the account number of the Obligor, the Initial Principal Balance,
and the Contract Rate, was true and correct in all material respects as of the
close of business on the Cutoff Date.
(d) Compliance with Law. The Receivable complied at the time it was
originated or made, and will comply as of the Closing Date, in all material
respects with all requirements of applicable federal, state and local laws, and
regulations thereunder, including, to the extent applicable, usury laws, the
Federal Truth in Lending Act, the Equal Credit Opportunity Act, the Fair Credit
Billing Act, the Fair Credit Reporting Act, the Federal Trade Commission Act,
the Xxxxxxxx-Xxxx Warranty Act, the Fair Debt Collection Practices Act, Federal
Reserve Board Regulations B and Z and any other consumer credit, consumer
protection, equal opportunity and disclosure laws.
(e) Binding Obligation. The Receivable constitutes the genuine, legal,
valid and binding payment obligation in writing of the Obligor, enforceable in
all material respects by the holder thereof in accordance with its terms,
subject to the effect of bankruptcy, insolvency, reorganization, or other
similar laws affecting the enforcement of creditors' rights generally, and the
Receivable is not subject to any right of rescission, setoff, counterclaim or
defense, including the defense of usury.
(f) Lien in Force. Neither Seller nor the Initial Seller has taken any
action which would have the effect of releasing the related Financed Vehicle
from the Lien granted by the Receivable in whole or in part.
(g) No Amendment or Waiver. No material provision of the Receivable has
been amended, waived, altered or modified in any respect, except such waivers as
would be permitted under this Agreement, and no amendment, waiver, alteration or
modification causes such Receivable not to conform to the other representations
or warranties contained in this Section.
(h) No Liens. Neither Seller nor the Initial Seller has received notice of
any Liens or claims, including Liens for work, labor, materials or unpaid state
or federal taxes, relating to the Financed Vehicle securing the Receivable, that
are or may be prior to or equal to the Lien granted by the Receivable.
(i) No Default. Except for payment delinquencies continuing for a period
of not more than 30 days as of the Cutoff Date, to the knowledge of Seller, no
default, breach, violation or event permitting acceleration under the terms of
the Receivable exists and no continuing condition that with notice or lapse of
time, or both, would constitute a default, breach, violation or event permitting
acceleration under the terms of the Receivable has arisen.
(j) Insurance. The Receivable requires the Obligor to insure the Financed
Vehicle under a Physical Damage Insurance Policy, pay the premiums for such
insurance and keep such insurance in full force and effect.
SALE AND SERVICING AGREEMENT
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(k) Good Title. It is the intention of Seller that the transfer and
assignment herein contemplated constitute a sale of the Receivables from Seller
to Issuer and that the beneficial interest in and title to the Receivables not
be part of Seller's estate in the event of the filing of a bankruptcy petition
by or against Seller under any bankruptcy law. No Receivable has been sold,
transferred, assigned, or pledged by Seller to any Person other than Issuer.
Immediately prior to the transfer and assignment herein contemplated, Seller had
good and marketable title to the Receivable free and clear of any Lien and had
full right and power to transfer and assign the Receivable to Issuer and
immediately upon the transfer and assignment of the Receivable to Issuer, Issuer
shall have good and marketable title to the Receivable, free and clear of any
Lien; and Issuer's interest in the Receivable resulting from the transfer has
been perfected under the UCC.
(l) Obligations. The Initial Seller has duly fulfilled all material
obligations on its part to be fulfilled under, or in connection with, the
Receivable.
(m) Possession. There is only one original executed Receivable, and
immediately prior to the Closing Date, the Initial Seller will have possession
of such original executed Receivable.
(n) No Government Obligor. The Obligor on the Receivable is not the United
States of America or any state thereof or any local government, or any agency,
department, political subdivision or instrumentality of the United States of
America or any state thereof or any local government.
(o) Marking Records. By the Closing Date, Seller shall have caused the
portions of Seller's and the Initial Seller's electronic master record of Motor
Vehicle Loans relating to the Receivables to be clearly and unambiguously marked
to show that the Receivable is owned by Issuer in accordance with the terms of
this Agreement.
(p) No Assignment. As of the Closing Date, Seller shall not have taken any
action to convey any right to any Person that would result in such Person having
a right to payments received under the Insurance Policies or Dealer Agreements,
or payments due under the Receivable, that is senior to, or equal with, that of
Issuer.
(q) Lawful Assignment. The Receivable has not been originated in, and is
not subject to the laws of, any jurisdiction under which the sale, transfer or
assignment of such Receivable hereunder or pursuant to transfers of the Notes or
Certificates are unlawful, void or voidable. Neither Seller nor the Initial
Seller has entered into any agreement with any Obligor that prohibits, restricts
or conditions the assignment of any portion of the Receivables.
(r) Dealer Agreements. A Dealer Agreement for each Receivable is in effect
whereby the Dealer warrants title to the Motor Vehicle and indemnifies the
Initial Seller against the unenforceability of each Receivable sold thereunder,
and the rights of the Initial Seller thereunder, with regard to the Receivable
sold hereunder, have been validly assigned to and are enforceable against the
Dealer by the Seller and then to and by the Issuer, along with any Dealer
Recourse.
SALE AND SERVICING AGREEMENT
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(s) Composition of Receivable. No Receivable has a Principal Balance which
includes capitalized interest or late charges.
(t) Database File. The information included with respect to each
Receivable in the database file delivered pursuant to Section 4.9(b) is accurate
and complete in all material respects.
SECTION 3.2. Representations and Warranties as to the Receivables in the
Aggregate. Seller hereby makes the following representations and warranties as
to the Receivables conveyed by it to Issuer hereunder on which Issuer shall rely
in acquiring the Receivables. Unless otherwise indicated, such representations
and warranties shall speak as of the Closing Date, but shall survive the sale,
transfer and assignment of the Receivables to Issuer and the pledge thereof to
Indenture Trustee pursuant to the Indenture.
(a) Amounts. The Original Pool Balance was $555,324,252.85.
(b) Aggregate Characteristics. The Receivables had the following
characteristics in the aggregate as of the Cutoff Date: (i) approximately 31.06%
of the Original Pool Balance was attributable to loans for purchases of new
Financed Vehicles, and approximately 68.94% of the Original Pool Balance was
attributable to loans for purchases of used Financed Vehicles; (ii)
approximately 15.28% of the Original Pool Balance was attributable to
Receivables the mailing addresses of the Obligors with respect to which are
located in the State of California, 9.48% of the Original Pool Balance was
attributable to Receivables the mailing addresses of the Obligors with respect
to which are located in the State of Arizona, 9.24% of the Original Pool Balance
was attributable to Receivables the mailing addresses of the Obligors with
respect to which are located in the State of Washington, 8.93% of the Original
Pool Balance was attributable to Receivables the mailing addresses of the
Obligors with respect to which are located in the State of Texas, 6.72% of the
Original Pool Balance was attributable to Receivables the mailing addresses of
the Obligors with respect to which are located in the State of New York, 6.08%
of the Original Pool Balance was attributable to Receivables the mailing
addresses of the Obligors with respect to which are located in the State of
Colorado, 5.67% of the Original Pool Balance was attributable to Receivables the
mailing addresses of the Obligors with respect to which are located in the State
of Maine, 5.38% of the Original Pool Balance was attributable to Receivables the
mailing addresses of the Obligors with respect to which are located in the State
of Oregon and no other state accounts for more than 5% of the Original Pool
Balance; (iii) the weighted average Contract Rate of the Receivables was 11.40%;
(iv) there are 36,458 Receivables being conveyed by Seller to Issuer; (v) the
average Cutoff Date Principal Balance of the Receivables was $15,231.89; and
(vi) the weighted average original term and weighted average remaining term of
the Receivables were 64.26 months and 61.28 months, respectively.
SECTION 3.3. Repurchase upon Breach. Seller, Servicer, Indenture Trustee
or Owner Trustee, as the case may be, shall inform the other parties to this
Agreement promptly, in writing, upon the discovery (or, with respect to the
Indenture Trustee or Owner Trustee, upon actual knowledge of a Responsible
Officer) of any breach or failure to be true of the representations or
warranties made by Seller in Section 3.1, provided that the failure to give such
notice shall not affect
SALE AND SERVICING AGREEMENT
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any obligation of Seller. If the breach or failure shall not have been cured by
the last day of the Collection Period which includes the 60th day (or if Seller
elects, the 30th day) after the date on which Seller becomes aware of, or
receives written notice from Owner Trustee, Indenture Trustee or Servicer of,
such breach or failure, and such breach or failure materially and adversely
affects the interests of Issuer and the Holders in any Receivable, Seller shall
repurchase each such affected Receivable from Issuer as of such last day of such
Collection Period at a purchase price equal to the Purchase Amount for such
Receivable as of such last day of such Collection Period. Notwithstanding the
foregoing, any such breach or failure with respect to the representations and
warranties contained in Section 3.1 will not be deemed to have such a material
and adverse effect with respect to a Receivable if the facts resulting in such
breach or failure do not affect the ability of Issuer to receive and retain
payment in full on such Receivable. In consideration of the repurchase of a
Receivable hereunder, Seller shall remit the Purchase Amount of such Receivable,
no later than the close of business on the next Deposit Date, in the manner
specified in Section 5.3. The sole remedy of Issuer, the Owner Trustee, the
Indenture Trustee or the Holders with respect to a breach or failure to be true
of the representations or warranties made by Seller pursuant to Section 3.1
shall be to require Seller to repurchase Receivables pursuant to this Section.
SECTION 3.4. Custodian of Receivable Files. (a) Custody. To assure uniform
quality in servicing the Receivables and to reduce administrative costs, Issuer,
upon the execution and delivery of this Agreement, revocably appoints Custodian,
as agent, and Custodian accepts such appointment, to act as agent on behalf of
Issuer to maintain custody of the following documents or instruments, which are
hereby constructively delivered to Issuer with respect to each Receivable
(collectively, a "Receivable File"):
(i) fully executed original contract of the Receivable;
(ii) any documents customarily delivered to or held by Seller or
Servicer evidencing the existence of any Physical Damage
Insurance Policies;
(iii) the original credit application, fully executed by the
Obligor;
(iv) the original certificate of title, or such other documents as
the Initial Seller keeps on file, in accordance with its
customary procedures, evidencing the security interest of the
Initial Seller in the Financed Vehicle;
(v) originals or true copies of all documents, instruments or
writings relating to extensions, amendments or waivers of the
Receivable; and
(vi) any and all other documents or electronic records that Seller,
the Initial Seller or Servicer, as the case may be, keeps on
file, in accordance with its customary procedures, relating to
the Receivable, any Insurance Policies, the Obligor or the
Financed Vehicle.
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(b) Safekeeping. Servicer, in its capacity as Custodian, shall hold the
Receivable Files as agent on behalf of Issuer and maintain such accurate and
complete accounts, records and computer systems pertaining to each Receivable as
shall enable Servicer and Issuer to comply with the terms and provisions of this
Agreement applicable to them. In performing its duties as Custodian hereunder,
Custodian shall act with reasonable care, exercising the degree of skill,
attention and care that Custodian exercises with respect to receivable files
relating to other similar motor vehicle loans owned and/or serviced by Custodian
and that is consistent with industry standards. In accordance with its customary
practice with respect to its retail installment sale contracts, Custodian shall
conduct, or cause to be conducted, periodic audits of the Receivable Files held
by it under this Agreement, and of the related accounts, records, and computer
systems, and shall maintain the Receivable Files in such a manner as shall
enable Owner Trustee to verify, if Owner Trustee so elects, the accuracy of the
record keeping of Custodian. Custodian shall promptly report to Owner Trustee
any failure on its part to hold the Receivable Files and maintain its accounts,
records and computer systems as herein provided, and promptly take appropriate
action to remedy any such failure. Custodian hereby acknowledges receipt of the
Receivable File for each Receivable listed on the Schedule of Receivables.
Nothing herein shall be deemed to require Issuer, Owner Trustee or Indenture
Trustee to verify the accuracy of the record keeping of the Custodian.
(c) Maintenance of and Access to Records. Custodian shall maintain each
Receivable File at the location specified in Schedule 2 to this Agreement, or at
such other office of Custodian within the United States (or, in the case of any
successor Custodian, within the State in which its principal place of business
is located) as shall be specified to Issuer by 30 days' prior written notice. At
the reasonable direction of the Owner Trustee or Indenture Trustee, Custodian
shall make available to Owner Trustee, Indenture Trustee and their respective
agents (or, when requested in writing by Owner Trustee or Indenture Trustee,
their respective attorneys or auditors) the Receivable Files and the related
accounts, records and computer systems maintained by Custodian at such times
during the normal business hours of Custodian for purposes of inspecting,
auditing or making copies of abstracts of the same.
(d) Release of Documents. Upon written instructions from Indenture Trustee
(or, if no Notes are then Outstanding, Owner Trustee), Custodian shall release
any document in the Receivable Files to Indenture Trustee or Owner Trustee or
its respective agent or designee, as the case may be, at such place or places as
Indenture Trustee or Owner Trustee may designate, as soon thereafter as is
practicable. Any document so released shall be handled by Indenture Trustee or
Owner Trustee with due care and returned to Custodian for safekeeping as soon as
Indenture Trustee or Owner Trustee or its respective agent or designee, as the
case may be, shall have no further need therefor.
(e) Title to Receivables. Custodian agrees that, in respect of any
Receivable File held by Custodian hereunder, Custodian will not at any time have
or in any way attempt to assert any interest in such Receivable File or the
related Receivable, other than solely for the purpose of collecting or enforcing
the Receivable for the benefit of Issuer and that the entire equitable interest
in such Receivable and the related Receivable File shall at all times be vested
in Issuer.
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(f) Instructions; Authority to Act. Custodian shall be deemed to have
received proper instructions with respect to the Receivable Files upon its
receipt of written instructions signed by an Authorized Officer of Indenture
Trustee or Owner Trustee, as applicable. A certified copy of excerpts of certain
resolutions of the Board of Directors of Indenture Trustee or Owner Trustee, as
applicable, shall constitute conclusive evidence of the authority of any such
Authorized Officer to act and shall be considered in full force and effect until
receipt by Custodian of written notice to the contrary given by Indenture
Trustee or Owner Trustee, as applicable.
(g) Custodian's Indemnification. Custodian shall indemnify and hold
harmless Issuer, Owner Trustee and Indenture Trustee, and each of their
respective officers, directors, employees and agents and the Holders from and
against any and all liabilities, obligations, losses, compensatory damages,
payments, costs or expenses (including legal fees if any) of any kind whatsoever
that may be imposed on, incurred or asserted against Issuer, Owner Trustee,
Indenture Trustee or the Holders as the result of any act or omission of
Custodian relating to the maintenance and custody of the Receivable Files;
provided that Custodian shall not be liable hereunder to the Owner Trustee or
Indenture Trustee to the extent that such liabilities, obligations, losses,
compensatory damages, payments, costs or expenses result from the willful
misfeasance, bad faith or negligence of Owner Trustee or Indenture Trustee, as
the case may be. Indemnification under this subsection (g) shall include
reasonable fees and expenses of counsel and expenses of litigation and shall
survive termination of this Agreement and the resignation or removal of Owner
Trustee or Indenture Trustee, as the case may be. If Custodian shall have made
any indemnity payments to Owner Trustee or Indenture Trustee pursuant to this
Section and Owner Trustee or Indenture Trustee thereafter shall collect any of
such amounts from Persons other than Custodian, Owner Trustee or Indenture
Trustee, as the case may be, shall, as soon as practicable following such
receipt thereof, repay such amounts to Custodian, without interest.
(h) Effective Period and Termination. Servicer's appointment as Custodian
shall become effective as of the Cutoff Date and shall continue in full force
and effect until terminated pursuant to this subsection (h). If Servicer shall
resign as Servicer in accordance with Section 7.5 or if all of the rights and
obligations of Servicer shall have been terminated under Section 8.1, the
appointment of Servicer as Custodian hereunder may be terminated by the Owner
Trustee or Indenture Trustee or by the Holders of Notes evidencing not less than
50% of the aggregate Outstanding Amount of the Notes (or, if no Notes are then
Outstanding, the Holders of Certificates representing not less than 50% of the
Certificate Balance), in each case in the same manner as Owner Trustee or
Indenture Trustee or such Holders may terminate the rights and obligations of
Servicer under Section 8.1. The Indenture Trustee, at the direction of Holders
of Notes evidencing not less than 50% of the aggregate Outstanding Amount of the
Notes, or, if no Notes are then Outstanding, the Owner Trustee at the direction
of Holders of Certificates evidencing not less than 50% of the Certificate
Balance, may terminate Servicer's appointment as Custodian hereunder at any time
with cause, or with 30 days' prior written notice without cause. As soon as
practicable after any termination of such appointment Servicer shall deliver, or
cause to be delivered, the Receivable Files to Indenture Trustee or Owner
Trustee, as applicable, or its respective agent or designee at such place or
places as Indenture Trustee or Owner Trustee, as applicable, may reasonably
designate. Notwithstanding any termination of Servicer as Custodian hereunder
(other than in connection with a termination resulting from the
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termination of Servicer, as such, pursuant to Section 8.1), from and after the
date of such termination, and for so long as Servicer is acting as such pursuant
to this Agreement, Indenture Trustee shall provide, or cause the successor
Custodian to provide, access to the Receivable Files to Servicer, at such times
as Servicer shall reasonably request, for the purpose of carrying out its duties
and responsibilities with respect to the servicing of the Receivables hereunder.
(i) Delegation. Custodian may, at any time without notice or consent,
delegate any or all of its duties under the Basic Documents to any Affiliate of
Seller; provided that no such delegation shall relieve Custodian of its
responsibility with respect to such duties and Custodian shall remain obligated
and liable to Issuer and the Holders for its duties hereunder as if Custodian
alone were performing such duties.
ARTICLE IV. ADMINISTRATION AND SERVICING OF RECEIVABLES.
SECTION 4.1. Duties of Servicer. (a) Servicer is hereby authorized to act
as agent for Issuer and in such capacity shall manage, service, administer and
make collections on the Receivables (other than Purchased Receivables), and
perform the other actions required by Servicer under this Agreement, with
reasonable care. Without limiting the standard set forth in the preceding
sentence, Servicer shall use a degree of skill, attention and care that is not
less than Servicer exercises with respect to comparable Motor Vehicle Loans that
it services for itself or others and that is consistent with prudent industry
standards. Servicer's duties shall include the collection and posting of all
payments, responding to inquiries by Obligors on the Receivables, or by federal,
state or local governmental authorities, investigating delinquencies, sending
payment coupons or monthly invoices to Obligors, reporting required tax
information to Obligors, accounting for Collections, monitoring the status of
Physical Damage Insurance Policies with respect to the Financed Vehicles as
provided in Section 4.4(a), furnishing monthly and annual statements to Owner
Trustee and Indenture Trustee with respect to distributions, providing
collection and repossession services in the event of Obligor default and
performing the other duties specified herein.
In accordance with its customary servicing procedures, Servicer shall also
administer and enforce all rights and responsibilities of the holder of the
Receivables provided for in the Physical Damage Insurance Policies as provided
in Section 4.4 and the Dealer Agreements. Without limiting the generality of the
foregoing, Servicer is hereby authorized and empowered by Issuer to execute and
deliver, on behalf of itself, Indenture Trustee, Issuer, Owner Trustee and the
Holders, any and all instruments of satisfaction or cancellation, or of partial
or full release or discharge, and all other comparable instruments, with respect
to the Receivables or to the Financed Vehicles, all in accordance with this
Agreement; provided that notwithstanding the foregoing, Servicer shall not,
except pursuant to an order from a court of competent jurisdiction, release an
Obligor from payment of any unpaid amount under any Receivable or waive the
right to collect the unpaid balance of any Receivable from the Obligor, except
in connection with a de minimis deficiency which Servicer would not attempt to
collect in accordance with its customary procedures. If Servicer shall commence
a legal proceeding to enforce a Receivable, Issuer shall thereupon be deemed to
have automatically assigned such Receivable to Servicer, which assignment shall
be solely for purposes of collection.
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(b) Servicer may, at any time without notice (except that Servicer shall
give written notice to each Rating Agency of any delegation outside the ordinary
course of business of the substantial portion of its servicing business) or
consent, delegate (i) any or all duties under this Agreement to any Person more
than 50% of the voting securities of which are owned, directly or indirectly, by
KeyCorp, an Ohio corporation, so long as Key Bank USA or its successor or
assigns acts as Servicer, or (ii) specific duties to sub-contractors who are in
the business of performing such duties; provided that no such delegation shall
relieve Servicer of its responsibility with respect to such duties and Servicer
shall remain obligated and liable to Issuer and the Holders for servicing and
administering the Receivables in accordance with this Agreement as if Servicer
alone were performing such duties.
SECTION 4.2. Collection of Receivable Payments. (a) Servicer shall make
reasonable efforts to collect all payments called for under the terms and
provisions of the Receivables as and when the same shall become due, and
otherwise act with respect to the Receivables, the Physical Damage Insurance
Policies, the Dealer Agreements and related property in such manner as will, in
the reasonable judgment of Servicer, maximize the amount to be received by
Issuer with respect thereto, in accordance with the standard of care required by
Section 4.1. Servicer shall be entitled to amend or modify any Receivable in
accordance with its customary procedures if Servicer believes in good faith that
such amendment or modification is in Issuer's best interests; provided that
Servicer may not, unless ordered by a court of competent jurisdiction or
otherwise required by applicable law, (i) extend a Receivable beyond the Final
Scheduled Maturity Date or (ii) reduce the Principal Balance or Contract Rate of
any Receivable. If Servicer fails to comply with the provisions of the preceding
sentence, Servicer shall be required to purchase the Receivable or Receivables
affected thereby, for the Purchase Amount, in the manner specified in Section
4.7 as of the last day of the Collection Period in which such failure occurs.
Servicer may, in its discretion (in accordance with its customary standards,
policies and procedures), waive any prepayment charge, late payment charge,
extension fee or any other fee that may be collected in the ordinary course of
servicing a Receivable.
(b) If in the course of collecting payments under the Receivables,
Servicer determines to set off any obligation of Servicer to an Obligor against
an amount payable by the Obligor with respect to such Receivable, Servicer shall
deposit the amount so set off in the Collection Account, no later than the close
of business on the Deposit Date for the Collection Period in which the set-off
occurs. All references herein to payments or Liquidation Proceeds collected by
Servicer shall include amounts set-off by Servicer.
SECTION 4.3. Realization upon Receivables. On behalf of Issuer, Servicer
shall charge off a Receivable that had been purchased by the Seller from Key
Bank USA when such Receivable becomes a Defaulted Receivable and shall use
reasonable efforts to repossess and liquidate the Financed Vehicle securing any
Defaulted Receivable as soon as feasible after such Receivable becomes a
Defaulted Receivable, in accordance with the standard of care required by
Section 4.1. In taking such action, Servicer shall follow such customary and
usual practices and procedures as it shall deem necessary or advisable in its
servicing of Motor Vehicle Loans, and as are otherwise consistent with the
standard of care required under Section 4.1, which shall include exercising any
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rights under the Dealer Agreements and selling the Financed Vehicle at public or
private sale. Servicer shall be entitled to recover all reasonable expenses
incurred by it in the course of repossessing and liquidating a Financed Vehicle
into cash proceeds or pursuing any deficiency claim against the related Obligor,
but only out of the cash proceeds of such Financed Vehicle or any deficiency
obtained from the Obligor. The foregoing shall be subject to the provision that,
in any case in which a Financed Vehicle shall have suffered damage, Servicer
shall not expend funds in connection with the repair or the repossession of such
Financed Vehicle unless it shall determine in its discretion that such repair
and/or repossession will increase the Liquidation Proceeds of the related
Receivable by an amount equal to or greater than the amount of such expenses.
If Servicer elects to commence a legal proceeding to enforce a Dealer
Agreement, the act of commencement shall be deemed to be an automatic assignment
from Issuer to Servicer of the rights under such Dealer Agreement. If, however,
in any enforcement suit or legal proceeding, it is held that Servicer may not
enforce a Dealer Agreement on the grounds that it is not a real party in
interest or a Person entitled to enforce the Dealer Agreement, Owner Trustee, on
behalf of Issuer, at Servicer's expense, or Seller, at Servicer's expense, shall
take such steps as Servicer deems necessary to enforce the Dealer Agreement,
including bringing suit in Issuer's name or the name of Owner Trustee or
Indenture Trustee.
SECTION 4.4. Physical Damage Insurance. (a) The Receivables require that
each Financed Vehicle be insured under a Physical Damage Insurance Policy.
Servicer shall monitor or cause to be monitored, the status of such physical
damage insurance coverage to the extent consistent with its customary servicing
procedures. If Servicer shall determine that an Obligor has failed to obtain or
maintain a Physical Damage Insurance Policy covering the related Financed
Vehicle, Servicer shall use reasonable efforts in accordance with its customary
servicing procedures to enforce the rights of the holder of the Receivable under
the Receivable to require the Obligor to obtain such physical damage insurance,
provided that Servicer shall not be required to take such actions if there is in
place a lender's single interest policy with respect to the related Financed
Vehicle that complies with Servicer's customary requirements. It is understood
that Servicer will not "force-place" any Physical Damage Insurance Policy on any
Financed Vehicle.
(b) Servicer may xxx to enforce or collect upon the Physical Damage
Insurance Policies, in its own name, if possible, or as agent for Issuer. If
Servicer elects to commence a legal proceeding to enforce a Physical Damage
Insurance Policy, the act of commencement shall be deemed to be an automatic
assignment of the rights of Issuer under such Physical Damage Insurance Policy
to Servicer for purposes of collection only. If, however, in any enforcement
suit or legal proceeding it is held that Servicer may not enforce a Physical
Damage Insurance Policy on the grounds that it is not a real party in interest
or a holder entitled to enforce the Physical Damage Insurance Policy, Owner
Trustee, on behalf of Issuer, at Servicer's expense, or Seller, at Servicer's
expense, shall take such steps as Servicer deems necessary to enforce such
Physical Damage Insurance Policy, including bringing suit in Issuer's name or
the name of Owner Trustee or Indenture Trustee. Servicer shall make all claims
and enforce its rights under any lender's single interest insurance policy (to
the extent such claims or rights relate to Receivables) for the benefit of the
Issuer and shall treat as Collections all related proceeds of such policies.
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SECTION 4.5. Maintenance of Security Interests in Financed Vehicles.
Servicer, in accordance with the standard of care required under Section 4.1,
shall take such reasonable steps as are necessary to maintain perfection of the
security interest created by each Receivable in the related Financed Vehicle for
the benefit of Issuer and the Indenture Trustee. Issuer hereby authorizes
Servicer, and Servicer hereby agrees, to take such reasonable steps as are
necessary to re-perfect such security interest on behalf of Issuer in the event
Servicer receives notice of the relocation of a Financed Vehicle. If there has
been a Servicer Termination Event, Seller and Servicer, at their expense, shall
promptly and duly execute and deliver such documents and instruments, and take
such other reasonable actions as may be necessary, as evidenced by an Opinion of
Counsel delivered to Issuer, Owner Trustee and Indenture Trustee to perfect
Issuer's and Indenture Trustee's interest in the Trust Property against all
other Persons, including the delivery of the Receivables and the Receivable
Files to Indenture Trustee (or Owner Trustee if no Notes are then Outstanding)
its agent or designee, the endorsement and delivery of the Physical Damage
Insurance Policies or the notification of the insurers thereunder, the execution
of transfer instruments, and the endorsement to Indenture Trustee (or Owner
Trustee if no Notes are then Outstanding) and the delivery of the certificates
of title to the Financed Vehicles to the appropriate department or departments
of motor vehicles (or other appropriate governmental agency).
SECTION 4.6. Covenants of Servicer. Servicer makes the following covenants
on which Issuer relies in acquiring the Receivables:
(a) Security Interest to Remain in Force. Servicer shall not release any
Financed Vehicle from the security interest granted by the related Receivable in
whole or in part, except upon payment in full of the Receivable or as otherwise
contemplated herein.
(b) No Impairment. Servicer shall not impair in any material respect the
rights of the Issuer or the Holders in the Receivables, the Dealer Agreements or
the Physical Damage Insurance Policies or, subject to clause (c), otherwise
amend or alter the terms thereof if, as a result of such amendment or
alteration, the interests of Issuer and the Holders hereunder would be
materially and adversely affected.
(c) Amendments. Servicer shall not amend or otherwise modify any
Receivable (including the grant of any extension thereunder), except in
accordance with Section 4.2.
SECTION 4.7. Purchase by Servicer upon Breach. Seller, Servicer, Indenture
Trustee or Owner Trustee, as the case may be, shall inform the other parties
promptly, in writing, upon the discovery (or, in the case of the Indenture
Trustee or Owner Trustee, upon actual knowledge of a Responsible Officer) of any
breach by Servicer of its covenants under Section 4.5 or 4.6; provided that the
failure to give such notice shall not affect any obligation of Servicer. Unless
the breach shall have been cured by the last day of the Collection Period which
includes the 60th day (or the 30th day, if Servicer so elects) after the date on
which Servicer becomes aware of, or receives written notice of, such breach, and
such breach materially and adversely affects the interests of Issuer and the
Holders in any Receivable, Servicer shall purchase such Receivable from Issuer
as of the last
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day of the Collection Period at a purchase price equal to the Purchase Amount
for such Receivable as of the last day of such Collection Period; provided that
in the case of a breach of the covenant contained in Section 4.6(c), Servicer
shall be obligated to purchase the affected Receivable or Receivables on the
Deposit Date immediately succeeding the Collection Period during which Servicer
becomes aware of, or receives written notice of, such breach. In consideration
of the purchase of a Receivable hereunder, Servicer shall remit the Purchase
Amount of such Receivable in the manner specified in Section 5.3. The sole
remedy of Issuer, Owner Trustee, Indenture Trustee or the Holders against
Servicer with respect to a breach pursuant to Section 4.5 or 4.6 shall be to
require Servicer to repurchase Receivables pursuant to this Section.
SECTION 4.8. Servicing Fee. The servicing fee for each Distribution Date
shall equal the product of one-twelfth multiplied by the Servicing Fee Rate
multiplied by the Pool Balance as of the opening of business on the first day of
the related Collection Period (the "Servicing Fee"). Servicer shall also be
entitled to retain any late fees, extension fees, prepayment charges (including,
in the case of any Rule of 78's Receivable or Sum of Periodic Balances
Receivable that is prepaid in full, amounts received in excess of the
outstanding Principal Balance of such Receivable and accrued interest thereon
calculated as if such Receivable were an Actuarial Receivable) and certain
non-sufficient funds charges and other administrative fees or similar charges
allowed by applicable law with respect to Receivables collected (from whatever
source) on the Receivables and shall be paid any interest earned on deposits in
the Trust Accounts and the Certificate Distribution Account (the "Supplemental
Servicing Fee"). It is understood and agreed that Available Interest or
Available Principal shall not include any amounts retained by Servicer which
constitute Supplemental Servicing Fees. The Servicing Fee in respect of a
Collection Period (together with any portion of the Servicing Fee that remains
unpaid from prior Distribution Dates), may be paid at the beginning of such
Collection Period out of Collections for such Collection Period if Key Bank USA
is the Servicer and (i) shall have the Required Rating or (ii) the Rating Agency
Condition is satisfied with respect to such action. As provided in Section
5.4(c), as additional compensation, Servicer shall be entitled to receive on
each Distribution Date, any Additional Servicing for such Distribution Date.
SECTION 4.9. Servicer's Report. (a) On each Determination Date, Servicer
shall deliver to Owner Trustee, Indenture Trustee, each Paying Agent and Seller,
with a copy to the Rating Agencies, a Servicer's Report substantially in the
form of Exhibit A, containing all information necessary to make the transfers
and distributions pursuant to Sections 5.3, 5.4 and 5.7 for the Collection
Period preceding the date of such Servicer's Report together with all
information necessary for the Owner Trustee to send statements to
Certificateholders pursuant to Section 5.5 and Indenture Trustee to send copies
of statements received by the Indenture Trustee to Noteholders pursuant to the
Indenture and Section 5.5 of this Agreement. Receivables to be purchased by
Servicer or to be repurchased by Seller shall be identified by Servicer by
account number with respect to such Receivable (as specified in the Schedule of
Receivables).
(b) Servicer shall provide Indenture Trustee with a database file for the
Receivables at or prior to the Closing Date (but with information as of the
close of business on the Cutoff Date).
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SECTION 4.10. Annual Statement as to Compliance; Notice of Default. (a)
Servicer shall deliver to Owner Trustee, Indenture Trustee and each Rating
Agency, on or before April 30 of each year beginning on April 30, 2000, an
Officer's Certificate, dated as of the preceding December 31, stating that a
review of the activities of Servicer during the preceding 12-month period (or,
in the case of the first such report, during the period from the Closing Date to
December 31, 1999) and of its performance under this Agreement has been made
under such officer's supervision and to the best of such officer's knowledge,
based on such review, Servicer has fulfilled all its obligations in all material
respects under this Agreement throughout such period or, if there exists any
uncured default in the fulfillment of any such obligation, specifying each such
default known to such officer and the nature and status thereof. A copy of such
certificate and the report referred to in Section 4.11 may be obtained by any
Certificateholder by a request in writing to Owner Trustee addressed to the
Corporate Trust Office or by any Noteholder by a request in writing to Indenture
Trustee addressed to the Corporate Trust Office. Upon the written request of
Owner Trustee, Indenture Trustee will promptly furnish Owner Trustee a list of
Noteholders as of the date specified by Owner Trustee.
(b) Servicer shall deliver to Owner Trustee, Indenture Trustee and the
Rating Agencies, promptly after having obtained knowledge thereof, but in no
event later than five (5) Business Days thereafter, written notice in an
Officer's Certificate of any event which constitutes, or with the giving of
notice or lapse of time, or both, would become a Servicer Termination Event
under Section 8.1.
SECTION 4.11. Annual Independent Certified Public Accountants' Report. The
Servicer shall cause a firm of independent certified public accountants (who may
also render other services to the Servicer or Seller) to deliver to the Seller,
Owner Trustee, Indenture Trustee and each Rating Agency on or before April 30 of
each year beginning on April 30, 2000, a report to the effect that such firm has
examined the Servicer's assertion that it has complied with the minimum
servicing standards set forth in the Mortgage Banker's Association of America's
Uniform Single Attestation Program for Mortgage Bankers ("USAP") for the twelve
months ended December 31 of the preceding year (or, in the case of the first
such certificate, from the Closing Date until December 31, 1999), and that such
examination (1) included tests relating to the servicing or administration of
the Receivables in accordance with the requirements of the USAP, to the extent
the procedures in such program apply to the servicing or administration of the
Receivables and (2) except as described in the report, disclosed no exceptions
or errors in the records relating to the servicing or administration of the
Receivables that, in the firm's opinion, paragraph six of such program requires
such firm to report.
In the event such firm requires the Indenture Trustee or Owner Trustee to
agree to the procedures performed by such firm, Servicer shall direct the
Indenture Trustee or Owner Trustee, as the case may be, in writing to so agree;
it being understood and agreed that the Indenture Trustee or Owner Trustee, as
the case may be, will deliver such letter of agreement in conclusive reliance
upon the direction of Servicer, and the Indenture Trustee or Owner Trustee, as
the case may be, need not make any independent inquiry or investigation as to,
and shall have no obligation or liability in respect of, the sufficiency,
validity or correctness of such procedures.
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Such report will also indicate that the firm is independent of Servicer
within the meaning of the Code of Professional Ethics of the American Institute
of Certified Public Accountants.
SECTION 4.12. Access to Certain Documentation and Information Regarding
Receivables. Servicer shall provide to the Certificateholders, Noteholders, Bank
Regulatory Authorities, and the supervisory agents and examiners of Bank
Regulatory Authorities access to the Receivable Files in such cases where the
Certificateholders, Noteholders or Bank Regulatory Authorities shall be required
by applicable statutes or regulations to review such documentation as
demonstrated by evidence satisfactory to Servicer in its reasonable judgment.
Access shall be afforded without charge, but only upon reasonable request and
during the normal business hours at the respective offices of Servicer. Nothing
in this Section shall affect the obligation of Servicer to observe any
applicable law prohibiting disclosure of information regarding the Obligors and
the failure of Servicer to provide access to information as a result of such
obligation shall not constitute a breach of this Section. Any Holder, by its
acceptance of a Certificate or Note, as applicable, shall be deemed to have
agreed to keep any information obtained by it pursuant to this Section
confidential and not to use such information for any other purpose, except as
required by applicable law.
SECTION 4.13. Reports to the Commission. Servicer shall, on behalf of the
Issuer, cause to be filed with the Commission any periodic reports required to
be filed under the provisions of the Exchange Act, and the rules and regulations
of the Commission thereunder. Seller shall, at its expense, cooperate in any
reasonable request made by Servicer in connection with such filings.
SECTION 4.14. Reports to the Rating Agencies. Servicer shall deliver to
each Rating Agency a copy of all reports or notices furnished or delivered
pursuant to this Article and a copy of any amendments, supplements or
modifications to this Agreement and any other information reasonably requested
by such Rating Agency to monitor this transaction.
SECTION 4.15. Servicer Expenses. Servicer shall be required to pay all
expenses incurred by it in connection with its activities hereunder, including
fees and disbursements of the Owner Trustee, Indenture Trustee, independent
accountants, taxes imposed on Servicer and expenses incurred in connection with
distributions and reports to Certificateholders and Noteholders.
ARTICLE V. DISTRIBUTIONS; RESERVE ACCOUNT; STATEMENTS TO CERTIFICATEHOLDERS AND
NOTEHOLDERS.
SECTION 5.1. Establishment of Trust Accounts. (a) Servicer shall cause to
be established:
(i) For the benefit of the Noteholders and the Certificateholders,
in the name of Indenture Trustee, an Eligible Deposit Account
(the "Collection Account"), bearing a designation clearly
indicating that the funds deposited therein are held for the
benefit of the Noteholders and the Certificateholders.
(ii) For the benefit of the Noteholders, in the name of Indenture
Trustee, an Eligible Deposit Account (the "Note Distribution
Account"), bearing a
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designation clearly indicating that the funds deposited
therein are held for the benefit of the Noteholders.
(iii) For the benefit of the Noteholders and the Certificateholders,
in the name of Indenture Trustee, an Eligible Deposit Account
(the "Payahead Account"), bearing a designation clearly
indicating that the funds therein are held for the benefit of
the Noteholders and the Certificateholders.
(b) Funds on deposit in the Collection Account, the Note Distribution
Account and the Payahead Account (collectively the "Trust Accounts") shall be
invested by Indenture Trustee with respect to the Trust Accounts (or any
custodian with respect to funds on deposit in any such account) in Eligible
Investments selected in writing by Servicer (pursuant to standing instructions
or otherwise); provided that it is understood and agreed that neither Servicer,
Indenture Trustee nor Owner Trustee shall be liable for any loss arising from
such investment in Eligible Investments. All such Eligible Investments shall be
held by or on behalf of Indenture Trustee for the benefit of the Noteholders and
the Certificateholders; provided that on each Distribution Date all interest and
other investment income (net of losses and investment expenses) on funds on
deposit in the Trust Accounts shall be distributed to Seller and shall not be
available to pay the distributions provided for in Section 5.4 and shall not
otherwise be subject to any claims or rights of Holders. Funds on deposit in the
Trust Accounts shall be invested in Eligible Investments that will mature so
that such funds will be available at the close of business on the Deposit Date
preceding the next Distribution Date; provided, that upon satisfaction of the
Rating Agency Condition, funds on deposit in the Trust Accounts may be invested
in Eligible Investments that mature later than such Deposit Date. No Eligible
Investment shall be sold or otherwise disposed of prior to its scheduled
maturity unless a default occurs with respect to such Eligible Investment and
Servicer directs Indenture Trustee in writing to dispose of such Eligible
Investment. Funds deposited in a Trust Account on a Deposit Date which
immediately precedes a Distribution Date upon the maturity of any Eligible
Investments are not required to be (but are permitted to be) invested overnight.
(c) Indenture Trustee shall possess all right, title and interest in all
funds on deposit from time to time in the Trust Accounts and in all proceeds
thereof (excluding investment income thereon) and all such funds, investments
and proceeds shall be part of the Owner Trust Estate. Except as otherwise
provided herein, the Trust Accounts shall be under the sole dominion and control
of Indenture Trustee for the benefit of the Noteholders and the
Certificateholders; provided, however, the Indenture Trustee shall not be
charged with any obligation for the benefit of the Certificateholders except as
provided by the terms of this Agreement. If, at any time, any of the Trust
Accounts or the Certificate Distribution Account ceases to be an Eligible
Deposit Account, Indenture Trustee (or Servicer on its behalf) or Owner Trustee,
as applicable, shall within 10 Business Days (or such longer period as to which
each Rating Agency may consent) establish a new Trust Account or Certificate
Distribution Account, as applicable, as an Eligible Deposit Account and shall
transfer any cash and/or any investments to such new Trust Account or new
Certificate Distribution Account, as applicable. In connection with the
foregoing, Servicer agrees that, in the event that any of the Trust Accounts are
not accounts with Indenture Trustee, Servicer shall notify
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Indenture Trustee in writing promptly upon any of such Trust Accounts ceasing to
be an Eligible Deposit Account.
(d) With respect to the Trust Account Property, Indenture Trustee agrees,
by its acceptance hereof, that:
(i) any Trust Account Property that is held in deposit accounts
shall be held solely in the Eligible Deposit Accounts and,
except as otherwise provided herein, each such Eligible
Deposit Account shall be subject to the exclusive custody and
control of Indenture Trustee with respect to the Trust
Accounts, and, except as otherwise provided in the Basic
Documents, Indenture Trustee shall have sole signature
authority with respect thereto;
(ii) any Trust Account Property that constitutes Physical Property
shall be delivered to Indenture Trustee, in accordance with
paragraph (a) of the definition of "Delivery" and shall be
held, pending maturity or disposition, solely by Indenture
Trustee, or a financial intermediary (as such term is defined
in Section 8-313(4) of the UCC) acting solely for Indenture
Trustee;
(iii) any Trust Account Property that is a book-entry security held
through the Federal Reserve System pursuant to Federal
book-entry regulations shall be delivered in accordance with
paragraph (b) of the definition of "Delivery" and shall be
maintained by Indenture Trustee pending maturity or
disposition, through continued book-entry registration of such
Trust Account Property as described in such paragraph; and
(iv) any Trust Account Property that is an "uncertificated
security" under Article 8 of the UCC and that is not governed
by clause (iii) above shall be delivered to Indenture Trustee
in accordance with paragraph (c) of the definition of
"Delivery" and shall be maintained by Indenture Trustee
pending maturity or disposition, through continued
registration of Indenture Trustee's (or its nominee's)
ownership of such security.
Effective upon Delivery of any Trust Account Property, Indenture Trustee
shall be deemed to have represented that it has purchased such Trust Account
Property for value, in good faith and without notice of any adverse claim
thereto.
SECTION 5.2. Collections. (a) Servicer shall remit within two Business
Days of receipt thereof to the Collection Account all payments by or on behalf
of the Obligors with respect to the Receivables (other than any amounts
constituting Supplemental Servicing Fees) and all Liquidation Proceeds, both as
collected during the Collection Period. Notwithstanding the foregoing, if Key
Bank USA is the Servicer and (i) shall have the Required Rating or (ii)
Indenture Trustee otherwise shall have received written notice from each of the
Rating Agencies that the then outstanding rating on the Notes or the
Certificates would not be lowered or withdrawn as a result, Servicer may deposit
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all amounts referred to above for any Collection Period into the Collection
Account not later than the close of business on the Deposit Date with respect to
such Collection Period; provided that (i) if a Servicer Termination Event has
occurred and is continuing, (ii) Servicer has been terminated as such pursuant
to Section 8.1 or (iii) Servicer ceases to have the Required Rating, Servicer
shall deposit such amounts (including any amounts then being held by Servicer)
into the Collection Account as provided in the preceding sentence. For purposes
of this Article V the phrase "payments by or on behalf of Obligors" shall mean
payments made with respect to the Receivables by Persons other than Servicer or
Seller.
(b) With respect to each Receivable (other than a Purchased Receivable or
a Precomputed Receivable), collections and payments by or on behalf of the
Obligor (other than any amounts constituting Supplemental Servicing Fees) for
each Collection Period shall be applied to interest and principal in accordance
with the Simple Interest Method, as applied by Servicer. Any excess shall be
applied to prepay the Receivable. All Liquidation Proceeds shall be treated as
Available Interest.
(c) With respect to each Precomputed Receivable, collections and payments
by or on behalf of an Obligor (other than any amounts constituting Supplemental
Servicing Fees) for each Collection Period shall be applied to the scheduled
payments due on such Precomputed Receivable for such Collection Period. To the
extent such collections and payments on a Precomputed Receivable during a
Collection Period exceed the scheduled payment on such Precomputed Receivable
and are insufficient to prepay the Precomputed Receivable in full, collections
shall be treated as Payaheads until such later Collection Period as such
Payaheads may be transferred to the Collection Account and applied either to the
scheduled payments due or to prepay the Precomputed Receivable in full in
accordance with Section 5.4.
SECTION 5.3. Additional Deposits. Servicer and Seller shall deposit or
cause to be deposited in the Collection Account the aggregate Purchase Amounts
with respect to Purchased Receivables and Seller or Servicer shall deposit
therein all amounts, if any, to be paid under Section 9.1. All such deposits
shall be made not later than the Deposit Date following the end of the related
Collection Period.
SECTION 5.4. Distributions. (a) On each Determination Date, Servicer shall
calculate all amounts required to determine the amounts to be deposited on the
related Distribution Date from the Reserve Account and the Payahead Account into
the Collection Account and from the Collection Account into the Note
Distribution Account, the Certificate Distribution Account and the Payahead
Account.
(b) On or before each Distribution Date, Servicer shall instruct Indenture
Trustee in writing (based on the information contained in the Servicer's Report
delivered on the related Determination Date pursuant to Section 4.9) to, and the
Indenture Trustee shall:
(i) withdraw from the Payahead Account and deposit in the
Collection Account, in immediately available funds, (x) with
respect to each Precomputed
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Receivable for which the payments made by or on behalf of the
Obligor for the related Collection Period are less than the
scheduled payment for the related Collection Period, the
amount of Payaheads, if any, made with respect to such
Receivable which, when added to the amount of such payments,
is equal to the amount of such scheduled payment, (y) with
respect to each Precomputed Receivable for which prepayments
insufficient to prepay the Receivable in full have been made
by or on behalf of the Obligor for the related Collection
Period, the amount of Payaheads, if any, made with respect to
such Receivable which, when added to the amount of such
prepayments, is equal to an amount sufficient to prepay such
Receivable in full, and (z) the amount of all Payaheads, if
any, made with respect to any Purchased Receivable;
(ii) withdraw from the Collection Account and deposit in the
Payahead Account (or receive from the Servicer, which will
remit to the Indenture Trustee for deposit in the Payahead
Account, as the case may be), in immediately available funds,
the aggregate amount of Collections on Precomputed Receivables
treated as Payaheads pursuant to Section 5.2 for the
Collection Period related to such Distribution Date; and
(iii) cause the Collateral Agent to withdraw from the Reserve
Account and deposit in the Collection Account, in immediately
available funds, the Reserve Account Transfer Amount for such
Distribution Date.
(c) Subject to the last paragraph of this Section 5.4(c), on each
Distribution Date, Servicer shall instruct Indenture Trustee in writing (based
on the information contained in the Servicer's Report delivered on the related
Determination Date pursuant to Section 4.9) to make, and Indenture Trustee shall
make, the following deposits and distributions from the Collection Account for
deposit in the applicable account by 11:00 a.m. (New York time), to the extent
of the Total Distribution Amount, in the following order of priority:
(i) to Servicer, from the Total Distribution Amount, the Servicing
Fee for the related Collection Period and all accrued and
unpaid Servicing Fees for prior Collection Periods;
(ii) to the Note Distribution Account, from the Total Distribution
Amount remaining after the application of clause (i), the
Noteholders' Interest Distributable Amount;
(iii) to the Note Distribution Account, from the Total Distribution
Amount remaining after the application of clause (i) and
clause (ii), the Class A Noteholders' Principal Distributable
Amount;
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(iv) to the Note Distribution Account, from the Total Distribution
Amount remaining after the application of clauses (i) through
(iii), the Class B Noteholders' Principal Distributable
Amount;
(v) to Owner Trustee for deposit in the Certificate Distribution
Account, from the Total Distribution Amount remaining after
the application of clauses (i) through (iv), the
Certificateholders' Interest Distributable Amount;
(vi) to the Note Distribution Account, from the Total Distribution
Amount remaining after the application of clauses (i) through
(v), the Class C Noteholders' Principal Distributable Amount;
(vii) to Owner Trustee for deposit in the Certificate Distribution
Account, from the Total Distribution Amount remaining after
the application of clauses (i) through (vi), the
Certificateholders' Principal Distributable Amount;
(viii) to the Reserve Account, from the Total Distribution Amount
remaining after the application of clauses (i) through (vii),
until the amount on deposit in the Reserve Account equals the
Specified Reserve Account Balance;
(ix) to the Servicer, Additional Servicing for such Distribution
Date; and
(x) to Seller, any amounts remaining.
On any Distribution Date on which the Noteholders' Interest Distributable
Amount has been paid in full, if there is a Certificate Interest Deficiency on
such Distribution Date after giving effect to the deposits and distributions of
the Total Distribution Amount set forth above, the Servicer will cause, to the
extent of Collections, the Certificate Interest Withdrawal Amount to be
distributed to the Owner Trustee on such Distribution Date for deposit into the
Certificate Distribution Account.
Notwithstanding the foregoing, following the occurrence and during the
continuation of an Event of Default which has resulted in an acceleration of the
Notes, the Total Distribution Amount remaining after the application of clauses
(i) and (ii) above will be deposited in the Note Distribution Account to the
extent necessary to reduce the principal amount of the Notes to zero in
accordance with and in the priority set forth in Section 5.4 of the Indenture,
and the Certificateholders will not receive any distributions until the
principal amount and accrued interest on the Notes have been paid in full. In
the event that the Collection Account is maintained with an institution other
than Indenture Trustee, Indenture Trustee shall instruct and cause such
institution to make all deposits and distributions pursuant to this Section
5.4(c) on the related Deposit Date.
(d) Indenture Trustee shall continue to perform its duties under this
Agreement after the Outstanding Amount of the Notes has been reduced to zero and
the Indenture has been discharged in accordance with its terms. The protections,
immunities and standard of care afforded the
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Indenture Trustee under the Indenture shall apply to the performance of its
duties hereunder. The initial Paying Agent with respect to the Notes shall be
the Indenture Trustee.
SECTION 5.5. Statements to Certificateholders and Noteholders. On each
Determination Date, Servicer shall provide to Indenture Trustee (with a copy to
each Rating Agency) written instructions for Indenture Trustee to forward to
each Noteholder of record, to each Paying Agent, if any, and to Owner Trustee
for Owner Trustee to forward to each Certificateholder of record, a statement
substantially in the form of Exhibit A setting forth at least the following
information as to the Notes and the Certificates to the extent applicable:
(a) the amount of such distribution allocable to principal of each class
of Notes and to the Certificate Balance of the Certificates;
(b) the amount of such distribution allocable to interest on or with
respect to each class of Notes and to the Certificates;
(c) the Pool Balance as of the close of business on the last day of the
preceding Collection Period;
(d) the aggregate outstanding principal balance of each class of the
Notes, the Note Pool Factor for each such class, the Certificate Balance and the
Certificate Pool Factor after giving effect to payments allocated to principal
reported under clause (a) above;
(e) the amount of the Servicing Fee paid to Servicer with respect to the
related Collection Period and with respect to previously accrued and unpaid
Servicing Fees;
(f) the amount of the aggregate Realized Losses, if any, for such
Collection Period;
(g) the Reserve Account Transfer Amount, if any, for such Distribution
Date, the Specified Reserve Account Balance for such Distribution Date, the
amount distributed to Seller from the Reserve Account on such Distribution Date,
and the balance of the Reserve Account (if any) on such Distribution Date, after
giving effect to changes therein on such Distribution Date;
(h) the Noteholders' Interest Carryover Shortfall, the Certificateholders'
Interest Carryover Shortfall, the Noteholders' Principal Carryover Shortfall,
and the Certificateholders' Principal Carryover Shortfall, if any, in each case
as applicable to each class of Securities, and the change in such amounts from
the preceding statement;
(i) the Additional Principal Distributable Amount for such Distribution
Date;
(j) the aggregate Purchase Amounts paid by Seller or Servicer with respect
to the related Collection Period; and
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(k) the number, and aggregate Principal Balance outstanding, of
Receivables past due 30-59, 60-89 and 90 and over 90 days.
Each amount set forth pursuant to paragraph (a), (b), (e) or (h) above
shall be expressed as a dollar amount per $1,000 of the initial principal
balance of the Notes (or class thereof) or the initial Certificate Balance, as
applicable.
SECTION 5.6. Net Deposits. As an administrative convenience, unless
Servicer is required to remit Collections within two Business Days of receipt
thereof, Servicer will be permitted to make the deposit of Collections and
Purchase Amounts for or with respect to the Collection Period net of
distributions to be made to Servicer with respect to the Collection Period.
Servicer, however, will account to Owner Trustee, Indenture Trustee, the
Noteholders and the Certificateholders as if all deposits, distributions and
transfers were made individually.
SECTION 5.7. Reserve Account. Servicer shall instruct the Collateral Agent
in writing (based on the information contained in the Servicer's Report
delivered on the related Determination Date pursuant to Section 4.9) to make,
and the Collateral Agent shall make, the following deposits and distributions
from the Reserve Account to the extent of any Reserve Account Excess for such
Distribution Date, for deposit in the applicable account by 11:00 a.m. (New York
time), in the following order of priority:
(a) to the Note Distribution Account (or, if the Outstanding Amount of the
Notes has been reduced to zero, to the Certificate Distribution Account) for
distribution in respect of principal, the lesser of (A) such Reserve Account
Excess, if any and (B) the excess, if any, of (i) the Additional Principal
Distributable Amount for such Distribution Date over (ii) the Excess Spread for
such Distribution Date;
(b) to the Servicer, the excess of (A) the Additional Servicing for such
Distribution Date over (B) any amount distributed as Additional Servicing for
such Distribution Date pursuant to Section 5.4(c)(ix); and
(c) to Seller, any amounts remaining after the Additional Principal
Distributable Amount has been reduced to zero.
Upon any distribution to Servicer or Seller of amounts from the Reserve
Account, the Holders will not have any rights in, or claims to, such amount.
Amounts distributed to Servicer or Seller from the Reserve Account in accordance
with this Section shall not be available under any circumstances to Issuer,
Owner Trustee, Indenture Trustee, Collateral Agent or the Holders and neither
Servicer nor Seller shall in any event thereafter be required to refund any such
distributed amounts.
ARTICLE VI. SELLER.
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SECTION 6.1. Representations of Seller. Seller makes the following
representations on which Issuer is deemed to have relied in acquiring the
Receivables and the other properties and rights included in the Owner Trust
Estate. The representations speak as of the execution and delivery of this
Agreement and shall survive the sale of the Receivables to Issuer and the pledge
thereof to Indenture Trustee pursuant to the Indenture.
(a) Organization and Good Standing. Seller has been duly organized and is
validly existing as a Delaware corporation in good standing under the laws of
the State of Delaware, with the power and authority to own its properties and to
conduct its business as such properties are presently owned and such business is
presently conducted and had at all relevant times, and has, full power,
authority and legal right to acquire, own and sell the Receivables and the other
properties and rights included in the Owner Trust Estate assigned to Issuer
pursuant to Article II.
(b) Power and Authority. Seller has the power, authority and legal right
to execute and deliver this Agreement and the Basic Documents to which it is a
party and to carry out their respective terms and to sell and assign the
property to be sold and assigned to and deposited with Issuer as the Owner Trust
Estate; and the execution, delivery and performance of this Agreement and the
Basic Documents to which it is a party have been duly authorized by Seller by
all necessary corporate action.
(c) No Consent Required. No approval, authorization, consent, license or
other order or action of, or filing or registration with, any governmental
authority, bureau or agency is required in connection with the execution,
delivery or performance by Seller of this Agreement or the Basic Documents to
which it is a party or the consummation of the transactions contemplated hereby
or thereby, other than (i) as may be required under the blue sky or securities
laws of any State or the Securities Act of 1933, as amended, and (ii) the filing
of UCC financing statements.
(d) Valid Sale; Binding Obligation. Seller intends this Agreement to
effect a valid sale, transfer, and assignment of the Receivables and the other
properties and rights included in the Owner Trust Estate conveyed by Seller to
Issuer hereunder, enforceable against creditors of and purchasers from Seller;
and each of this Agreement and the Basic Documents to which it is a party
constitutes a legal, valid and binding obligation of Seller, enforceable against
Seller in accordance with its respective terms, subject, as to enforceability,
to applicable bankruptcy, insolvency, reorganization, conservatorship,
receivership, liquidation and other similar laws affecting enforcement of the
rights of creditors generally and to equitable limitations on the availability
of specific remedies.
(e) No Violation. The execution, delivery and performance by Seller of
this Agreement and the Basic Documents to which it is a party and the
consummation of the transactions contemplated hereby and thereby will not
conflict with, result in any material breach of any of the terms and provisions
of, constitute (with or without notice or lapse of time) a material default
under or result in the creation or imposition of any Lien upon any of its
material properties pursuant to the terms of, (i) the certificate of
incorporation or bylaws of Seller, (ii) any material indenture, contract, lease,
mortgage, deed of trust or other instrument or agreement to which Seller is a
party or by which
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Seller is bound, or (iii) any law, order, rule or regulation applicable to
Seller of any federal or state regulatory body, any court, administrative
agency, or other governmental instrumentality having jurisdiction over Seller.
(f) No Proceedings. There are no proceedings or investigations pending,
or, to the knowledge of Seller, threatened, before any court, regulatory body,
administrative agency, or other tribunal or governmental instrumentality having
jurisdiction over Seller or its properties: (i) asserting the invalidity of this
Agreement, any other Basic Document, the Notes or the Certificates, (ii) seeking
to prevent the issuance of the Notes or Certificates or the consummation of any
of the transactions contemplated by this Agreement or any other Basic Document,
(iii) seeking any determination or ruling that might materially and adversely
affect the performance by Seller of its obligations under, or the validity or
enforceability of, this Agreement, any other Basic Document, the Notes or the
Certificates, to the extent applicable, or (iv) that may materially and
adversely affect the federal or state income, excise, franchise or similar tax
attributes of the Notes or the Certificates.
(g) Chief Executive Office. The chief executive office of Seller is Key
Tower, 000 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxx 00000-0000.
SECTION 6.2. Continued Existence. During the term of this Agreement,
subject to Section 6.4, Seller will keep in full force and effect its existence,
rights and franchises as a corporation organized under the laws of the State of
Delaware and will obtain and preserve its qualification to do business in each
jurisdiction in which such qualification is or shall be necessary to protect the
validity and enforceability of this Agreement, the Basic Documents and each
other instrument or agreement necessary or appropriate to the proper
administration of this Agreement and the transactions contemplated hereby.
SECTION 6.3. Liability of Seller; Indemnities. Seller shall be liable in
accordance herewith only to the extent of the obligations specifically
undertaken by Seller under this Agreement.
(a) Seller shall indemnify, defend and hold harmless Issuer, Owner Trustee
and Indenture Trustee and their respective officers, directors, employees and
agents from and against any taxes that may at any time be asserted against any
such Person with respect to, and on the date of, the sale of the Receivables to
Issuer or the issuance and original sale of the Notes and Certificates,
including any sales, gross receipts, general corporation, tangible personal
property, privilege or license taxes (but, in the case of all indemnified
Persons other than Issuer, not including any taxes asserted with respect to
Federal or other income taxes arising out of transactions contemplated by this
Agreement and the other Basic Documents) and costs and expenses in defending
against the same.
(b) Seller shall indemnify, defend and hold harmless Issuer, Owner
Trustee, Indenture Trustee, the Certificateholders and the Noteholders and the
respective officers, directors, employees and agents of Issuer, Owner Trustee
and Indenture Trustee from and against any and all costs, expenses, losses,
claims, damages and liabilities to the extent arising out of, or imposed upon
such Person through or as a result of (i) Seller's willful misfeasance, bad
faith or gross negligence (other than errors in judgment) in the performance of
its duties under this Agreement, or by reason of
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reckless disregard of its obligations and duties under this Agreement, (ii)
Seller's violation of Federal or state securities laws in connection with the
offering and sale of the Notes and the Certificates or in connection with any
application relating to the Notes or Certificates under any state securities
laws and (iii) the failure of any Receivable conveyed by it to Issuer hereunder,
or the sale of the related Financed Vehicle, to comply with all requirements of
applicable law.
(c) Seller shall be liable as primary obligor for, and shall indemnify,
defend and hold harmless Owner Trustee, Indenture Trustee and their respective
officers, directors, employees and agents from and against any and all costs,
expenses, losses, claims, damages and liabilities arising out of, or incurred in
connection with, the acceptance or performance of the trusts and duties set
forth herein and in the Trust Agreement, in the case of Owner Trustee, and
herein and in the Indenture, in the case of Indenture Trustee, except to the
extent that such cost, expense, loss, claim, damage or liability: (i) in the
case of Owner Trustee, shall be due to the willful misfeasance, bad faith or
negligence (except for errors in judgment) of Owner Trustee, or, in the case of
Indenture Trustee, shall be due to the willful misfeasance, bad faith or
negligence of Indenture Trustee; (ii) in the case of Owner Trustee, shall arise
from the breach by Owner Trustee of any of its representations or warranties set
forth in the Trust Agreement or any other Basic Document; or (iii) in the case
of Indenture Trustee, shall arise from the breach by Indenture Trustee of any of
its representations and warranties or covenants set forth in the Indenture. Such
liability shall survive the termination of Issuer, the discharge of the Notes
and Certificates and removal or resignation of such Indenture Trustee or Owner
Trustee.
(d) Seller shall pay any and all taxes levied or assessed upon the Issuer
or upon all or any part of the Owner Trust Estate.
Indemnification under this Section shall survive the resignation or
removal of Owner Trustee or Indenture Trustee and the termination of this
Agreement or the Indenture or the Trust Agreement, as applicable, and shall
include reasonable fees and expenses of counsel and other expenses of
litigation. If Seller shall have made any indemnity payments pursuant to this
Section and the Person to or on behalf of whom such payments are made thereafter
shall collect any of such amounts from others, such Person shall promptly repay
such amounts to Seller, without interest.
SECTION 6.4. Merger or Consolidation of, or Assumption of the Obligations
of, Seller. Any Person (a) into which Seller may be merged or consolidated, (b)
which may result from any merger or consolidation to which Seller shall be a
party or (c) which may succeed to the properties and assets of Seller
substantially as a whole, shall be the successor to Seller without the execution
or filing of any document or any further act by any of the parties to this
Agreement; provided that Seller hereby covenants that it will not consummate any
of the foregoing transactions except upon satisfaction of the following: (i) the
surviving Seller if other than Key Consumer Acceptance Corporation, executes an
agreement of assumption to perform every obligation of Seller under this
Agreement, (ii) immediately after giving effect to such transaction, no
representation or warranty made pursuant to Section 3.1 or 6.1 shall have been
breached, (iii) Seller shall have delivered to Owner Trustee and Indenture
Trustee an Officer's Certificate and an Opinion of Counsel each stating that
such consolidation, merger or succession and such agreement of assumption comply
with this
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Section and that all conditions precedent, if any, provided for in this
Agreement relating to such transaction have been complied with, and that the
Rating Agency Condition shall have been satisfied with respect to such
transaction, (iv) the surviving Seller shall have a consolidated net worth at
least equal to that of the predecessor Seller, (v) such transaction will not
result in a material adverse federal or state tax consequence to Issuer, the
Noteholders or the Certificateholders and (vi) unless Key Consumer Acceptance
Corporation is the surviving entity, Seller shall have delivered to Owner
Trustee and Indenture Trustee an Opinion of Counsel either (A) stating that, in
the opinion of such counsel, all financing statements and continuation
statements and amendments thereto have been executed and filed that are
necessary fully to preserve and protect the interest of Owner Trustee and
Indenture Trustee, respectively, in the Receivables and reciting the details of
such filings, or (B) stating that, in the opinion of such counsel, no such
action shall be necessary to preserve and protect such interests.
SECTION 6.5. Limitation on Liability of Seller and Others. Seller and any
director or officer or employee or agent of Seller may rely in good faith on the
advice of counsel or on any document of any kind, prima facie properly executed
and submitted by any Person respecting any matters arising under any Basic
Document (provided that such reliance shall not limit in any way Seller's
obligations under Section 3.2 or 6.3). Seller shall not be under any obligation
to appear in, prosecute or defend any legal action that shall not be incidental
to its obligations under this Agreement, and that in its opinion may involve it
in any expense or liability.
SECTION 6.6. Seller May Own Certificates or Notes. Seller and any
Affiliate thereof may in its individual or any other capacity become the owner
or pledgee of Certificates or Notes with the same rights as it would have if it
were not Seller or an Affiliate thereof, except as expressly provided herein or
in any Basic Document. Except as set forth herein or in the other Basic
Documents, Notes and Certificates so owned by or pledged to Seller or any such
Affiliate shall have an equal and proportionate benefit under the provisions of
this Agreement and the other Basic Documents, without preference, priority, or
distinction as among all of the Notes and Certificates.
SECTION 6.7 Indebtedness of Seller. Seller shall provide written notice to
the Rating Agencies at least thirty (30) days prior to the date it incurs any
material indebtedness or assumes or guarantees any material indebtedness of any
other entity in connection with the acquisition or transfer of receivables
(other than the Receivables) or the issuance and sale of securities (other than
the Notes and Certificates) secured by or evidencing beneficial ownership
interests in such receivables, or any other activity set forth in paragraph 3 of
its certificate of incorporation or incurs any material, non-incidental
indebtedness in connection with the accomplishment of any of the foregoing.
ARTICLE VII. SERVICER.
SECTION 7.1. Representations of Servicer. Servicer makes the following
representations on which Issuer is deemed to have relied in acquiring the
Receivables and the other properties and rights included in the Owner Trust
Estate. The representations speak as of the execution and delivery
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of the Agreement and shall survive the sale, transfer and assignment of the
Receivables to Issuer and the pledge thereof to Indenture Trustee pursuant to
the Indenture.
(a) Organization and Good Standing. Servicer has been duly organized and
is validly existing as a national banking association in good standing under the
laws of the United States, with the power and authority to own its properties
and to conduct its business as such properties are presently owned and such
business is presently conducted, and had at all relevant times, and shall have,
the power, authority and legal right to service the Receivables and the other
properties and rights included in the Owner Trust Estate.
(b) Due Qualification. Servicer shall be duly qualified to do business as
a foreign corporation in good standing, and shall have obtained all necessary
licenses and approvals in all jurisdictions in which the ownership or lease of
property or the conduct of its business (including the servicing of the
Receivables as required by this Agreement) shall require such qualifications.
(c) Power and Authority. Servicer has the power, authority and legal right
to execute and deliver this Agreement and the Basic Documents to which it is a
party and to carry out their respective terms; and the execution, delivery and
performance of this Agreement and the Basic Documents to which it is a party
have been duly authorized by Servicer by all necessary corporate action.
(d) No Consent Required. No approval, authorization, consent, license or
other order or action of, or filing or registration with, any governmental
authority, bureau or agency is required in connection with the execution,
delivery or performance by Servicer of this Agreement, the Basic Documents to
which it is a party or the consummation of the transactions contemplated hereby
or thereby, other than (i) as may be required under the blue sky or securities
laws of any State or the Securities Act of 1933, as amended, and (ii) the filing
of UCC financing statements.
(e) Binding Obligation. Each of this Agreement and the Basic Documents to
which it is a party constitutes a legal, valid and binding obligation of
Servicer, enforceable against Servicer in accordance with its respective terms,
subject, as to enforceability, to applicable bankruptcy, insolvency,
reorganization, conservatorship, receivership, liquidation and other similar
laws affecting enforcement of the rights of creditors of banks generally and to
equitable limitations on the availability of specific remedies.
(f) No Violation. The execution, delivery and performance by Servicer of
this Agreement and the Basic Documents to which it is a party and the
consummation of the transactions contemplated hereby and thereby will not
conflict with, result in any material breach of any of the terms and provisions
of, constitute (with or without notice or lapse of time) a material default
under, or result in the creation or disposition of any Lien upon any of its
material properties pursuant to the terms of, (i) the articles of association or
bylaws of Servicer, (ii) any material indenture, contract, lease, mortgage, deed
of trust or other instrument or agreement to which Servicer is a party or by
which Servicer is bound, or (iii) any law, order, rule or regulation applicable
to Servicer of any
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federal or state regulatory body, any court, administrative agency, or other
governmental instrumentality having jurisdiction over Servicer.
(g) No Proceedings. There are no proceedings or investigations pending,
or, to Servicer's knowledge, threatened, before any court, regulatory body,
administrative agency, or tribunal or other governmental instrumentality having
jurisdiction over Servicer or its properties: (i) asserting the invalidity of
this Agreement, any other Basic Document, the Notes or the Certificates, (ii)
seeking to prevent the issuance of the Certificates or the Notes or the
consummation of any of the transactions contemplated by this Agreement or any
other Basic Document, (iii) seeking any determination or ruling that might
materially and adversely affect the performance by Servicer of its obligations
under, or the validity or enforceability of, this Agreement, any other Basic
Document, the Notes or the Certificates, to the extent applicable, or (iv) that
may materially and adversely affect the federal or state income, excise,
franchise or similar tax attributes of the Certificates.
SECTION 7.2. Indemnities of Servicer. (a) Servicer shall be liable in
accordance herewith only to the extent of the obligations specifically
undertaken by Servicer under this Agreement.
(b) Servicer shall indemnify, defend and hold harmless Issuer, Owner
Trustee, Indenture Trustee, Seller, the Certificateholders and the Noteholders
and any of the respective officers, directors, employees and agents of Issuer,
Owner Trustee, Indenture Trustee or Seller from any and all costs, expenses,
losses, claims, damages and liabilities (including reasonable attorneys' fees
and expenses) to the extent arising out of, or imposed upon any such Person
through, the gross negligence, willful misfeasance or bad faith (other than
errors in judgment) of Servicer in the performance of its obligations and duties
under this Agreement or in the performance of the obligations and duties of any
subservicer under any subservicing agreement.
(c) Servicer shall indemnify, defend and hold harmless Issuer, Owner
Trustee, and Indenture Trustee and their respective officers, directors,
employees and agents from and against any taxes that may at any time be asserted
against any such Person with respect to the transactions contemplated in this
Agreement or in the other Basic Documents, including any sales, gross receipts,
general corporation, tangible or intangible personal property, franchise,
privilege, or license taxes, or any taxes of any kind which may be asserted
(but, in the case of all indemnified Persons other than Issuer, not including
any Federal or other income taxes arising out of transactions contemplated by
this Agreement and the other Basic Documents) against the Issuer, and costs and
expenses in defending against the same.
(d) Servicer shall indemnify, defend and hold harmless Issuer, Owner
Trustee, Indenture Trustee, Seller, Certificateholders and the Noteholders or
any of the respective officers, directors, employees and agents of Issuer, Owner
Trustee, Indenture Trustee or Seller from any and all costs, expenses, losses,
claims, damages and liabilities (including reasonable attorneys' fees and
expenses) to the extent arising out of or imposed upon any such Person as a
result of any compensation payable to any subcustodian or subservicer (including
any fees payable in connection with the release of any Receivable File from the
custody of such subservicer or in connection with the termination of the
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servicing activities of such subservicer with respect to any Receivable) whether
pursuant to the terms of any subservicing agreement or otherwise.
(e) Servicer shall indemnify, defend and hold harmless Issuer, Owner
Trustee, Indenture Trustee, Seller, the Certificateholders and the Noteholders
or any of the respective directors, officers, employees and agents of Issuer,
Owner Trustee, Indenture Trustee and Seller from and against any and all costs,
expenses, losses, damages, claims and liabilities, including reasonable fees and
expenses of counsel and expenses of litigation, arising out of or resulting from
the use, ownership, or operation of any Financed Vehicle.
(f) Servicer shall indemnify, defend and hold harmless Indenture Trustee
and Owner Trustee or any of their respective officers, directors, employees and
agents from any and all costs, expenses, losses, claims, damages and liabilities
(including reasonable attorneys' fees and expenses) to the extent arising out of
the transactions contemplated by the Indenture, the Sale and Servicing Agreement
and the Administration Agreement unless such costs, expenses, losses, claims,
damages and liabilities are due to the negligence, willful misfeasance or bad
faith of the Indenture Trustee or Owner Trustee, respectively.
Indemnification under this Section shall survive the resignation or
removal of Owner Trustee or Indenture Trustee and the termination of this
Agreement or the Indenture or the Trust Agreement, as applicable, and shall
include reasonable fees and expenses of counsel and other expenses of
litigation. If Servicer shall have made any indemnity payments pursuant to this
Section and the Person to or on behalf of whom such payments are made thereafter
shall collect any of such amounts from others, such Person shall promptly repay
such amounts to Servicer, without interest.
SECTION 7.3. Merger or Consolidation of, or Assumption of the Obligations
of, Servicer. Any Person (a) into which Servicer may be merged or consolidated,
(b) which may result from any merger or consolidation to which Servicer shall be
a party, (c) which may succeed to the properties and assets of Servicer,
substantially as a whole, or (d) 50% or more of the voting stock of which is
owned directly or indirectly by KeyCorp, may become the successor to Servicer;
provided that, unless Key Bank USA is the surviving party to such transaction,
Servicer hereby covenants that it will not consummate any of the foregoing
transactions except upon satisfaction of the following: (i) the surviving
Servicer if other than Key Bank USA, executes an agreement of assumption to
perform every obligation of Servicer under this Agreement, (ii) immediately
after giving effect to such transaction, no representation or warranty made
pursuant to Section 7.1 shall have been breached and no Servicer Termination
Event, and no event that, after notice or lapse of time, or both, would become a
Servicer Termination Event shall have occurred and be continuing, (iii) Servicer
shall have delivered to Owner Trustee and Indenture Trustee an Officer's
Certificate and an Opinion of Counsel each stating that such consolidation,
merger or succession and such agreement of assumption comply with this Section
and that all conditions precedent, if any, provided for in this Agreement
relating to such transaction have been complied with, and that the Rating Agency
Condition shall have been satisfied with respect to such transaction, (iv) the
surviving Servicer shall have a consolidated net worth at least equal to that of
the predecessor Servicer, and (v) such transaction will
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not result in a material adverse Federal or state tax consequence to Issuer, the
Noteholders or the Certificateholders.
SECTION 7.4. Limitation on Liability of Servicer and Others. Neither
Servicer nor any of its directors, officers, employees or agents shall be under
any liability to Issuer, the Noteholders or the Certificateholders, except as
provided under this Agreement, for any action taken or for refraining from the
taking of any action by Servicer or any subservicer pursuant to this Agreement
or for errors in judgment; provided that this provision shall not protect
Servicer or any such person against any liability that would otherwise be
imposed by reason of willful misfeasance, bad faith or gross negligence in the
performance of duties (except for errors in judgment) or by reason of reckless
disregard of obligations and duties under this Agreement. Servicer or any
subservicer and any of their respective directors, officers, employees or agents
may rely in good faith on any document of any kind prima facie properly executed
and submitted by any Person respecting any matters arising under this Agreement.
Except as provided in this Agreement, Servicer shall not be under any
obligation to appear in, prosecute or defend any legal action that shall be
incidental to its duties to service the Receivables in accordance with this
Agreement, and that in its opinion may involve it in any expense or liability;
provided that Servicer, may (but shall not be required to) undertake any
reasonable action that it may deem necessary or desirable in respect of the
Basic Documents to protect the interests of the Certificateholders under this
Agreement and the Noteholders under the Indenture. In such event, the legal
expense and costs of such action and any liability resulting therefrom shall be
expenses, costs and liabilities of the Servicer.
SECTION 7.5. Key Bank USA Not To Resign as Servicer. Subject to the
provisions of Section 7.3, Key Bank USA hereby agrees not to resign from the
obligations and duties hereby imposed on it as Servicer under this Agreement
except upon determination that the performance of its duties hereunder shall no
longer be permissible under applicable law or if such resignation is required by
regulatory authorities. Notice of any such determination permitting the
resignation of Key Bank USA as Servicer shall be communicated to Owner Trustee
and Indenture Trustee at the earliest practicable time (and, if such
communication is not in writing, shall be confirmed in writing at the earliest
practicable time) and any such determination shall be evidenced by an Opinion of
Counsel to such effect delivered to Owner Trustee and Indenture Trustee
concurrently with or promptly after such notice. No such resignation shall
become effective until the earlier of Indenture Trustee or a Successor Servicer
having assumed the responsibilities and obligations of the resigning Servicer in
accordance with Section 8.2 or the date upon which any regulatory authority
requires such resignation.
SECTION 7.6. Existence. Subject to the provisions of Section 7.3, during
the term of this Agreement, Key Bank USA will keep in full force and effect its
existence, rights and franchises as a national banking association under the
laws of the jurisdiction of its organization.
SECTION 7.7. Servicer May Own Notes or Certificates. The Servicer, and any
Affiliate of the Servicer, may, in its individual or any other capacity, become
the owner or pledgee of Notes or
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Certificates with the same rights as it would have if it were not the Servicer
or an Affiliate thereof, except as expressly provided herein or in any Basic
Document. Except as set forth herein or in the other Basic Documents, Notes and
Certificates so owned by or pledged to Servicer or any such Affiliate shall have
an equal and proportionate benefit under the provisions of this Agreement and
the other Basic Documents, without preference, priority, or distinction as among
all of the Notes and Certificates.
ARTICLE VIII. SERVICER TERMINATION EVENTS.
SECTION 8.1. Servicer Termination Event. If any one of the following
events (a "Servicer Termination Event") shall occur and be continuing:
(a) any failure by Servicer to deliver to Indenture Trustee and Owner
Trustee the Servicer's Report in accordance with Section 4.9, or any failure by
Servicer or Seller to deliver to Indenture Trustee or Owner Trustee for deposit
in any of the Trust Accounts or the Certificate Distribution Account any
required payment or to direct Indenture Trustee or Owner Trustee to make any
required distributions therefrom that shall continue unremedied for a period of
five Business Days after written notice of such failure is received by Servicer
from Owner Trustee or Indenture Trustee or after discovery of such failure by an
Authorized Officer of Servicer; or
(b) failure on the part of Servicer or Seller duly to observe or to
perform in any material respect any other covenants or agreements of Servicer or
Seller, as applicable, set forth in this Agreement or any other Basic Document
to which it is a party, which failure shall (i) materially and adversely affect
the rights of either the Certificateholders or Noteholders and (ii) continue
unremedied for a period of 60 days after the date on which written notice of
such failure, requiring the same to be remedied, shall have been given (A) to
Servicer by Owner Trustee or Indenture Trustee or (B) to Servicer and to Owner
Trustee and Indenture Trustee by the Holders of Notes evidencing not less than
25% of the Outstanding Amount of the Notes or Holders of Certificates evidencing
not less than 25% of the outstanding Certificate Balance, as applicable (or for
such longer period, not in excess of 120 days, as may be reasonably necessary to
remedy such default; provided that such default is capable of remedy within 120
days and Servicer delivers an Officer's Certificate to Owner Trustee and
Indenture Trustee to such effect and to the effect that Servicer or Seller, as
applicable, has commenced or will promptly commence, and will diligently pursue,
all reasonable efforts to remedy such default); or
(c) an Insolvency Event occurs with respect to Servicer, Seller or any of
their respective successors;
then, and in each and every case, so long as any Servicer Termination Event
shall not have been remedied, either Indenture Trustee, or the Holders of Notes
evidencing greater than 50% of the Outstanding Amount of the Notes (or, if no
Notes are then Outstanding, either the Owner Trustee or the Holders of
Certificates evidencing greater than 50% of the Certificate Balance), by notice
then given in writing to Servicer (and to Owner Trustee or Indenture Trustee, as
applicable, if given by the Holders) may terminate all the rights and
obligations (other than the obligations set forth in
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Section 7.2) of Servicer under this Agreement. On or after the receipt by
Servicer of such written notice, all authority and power of Servicer under this
Agreement, whether with respect to the Notes, the Certificates or the
Receivables or otherwise, shall, without further action, pass to and be vested
in Indenture Trustee or such Successor Servicer as may be appointed under
Section 8.2; and, without limitation, Indenture Trustee and Owner Trustee are
hereby authorized and empowered to execute and deliver, on behalf of the
predecessor Servicer, as attorney-in-fact or otherwise, any and all documents
and other instruments, and to do or accomplish all other acts or things
necessary or appropriate to effect the purposes of such notice of termination,
whether to complete the transfer and endorsement of the Receivables and related
documents, or otherwise. The predecessor Servicer shall cooperate with the
Successor Servicer, Indenture Trustee and Owner Trustee in effecting the
termination of the responsibilities and rights of the predecessor Servicer under
this Agreement, including the transfer to the Successor Servicer for
administration by it of all cash amounts that shall at the time be held by the
predecessor Servicer for deposit, or shall thereafter be received by it with
respect to a Receivable. Servicer shall promptly transfer its electronic records
relating to the Receivables to the Successor Servicer in such electronic form as
the Successor Servicer may reasonably request and shall promptly transfer to the
Successor Servicer all other records, correspondence and documents necessary for
the continued servicing of the Receivables in the manner and at such times as
the Successor Servicer shall reasonably request. All reasonable costs and
expenses (including attorneys' fees) incurred in connection with transferring
the Receivable Files to the Successor Servicer and amending this Agreement to
reflect such succession as Servicer pursuant to this Section shall be paid by
the predecessor Servicer upon presentation of reasonable documentation of such
costs and expenses. Upon receipt of notice of the occurrence of a Servicer
Termination Event, Indenture Trustee shall give notice thereof to the Rating
Agencies.
SECTION 8.2. Appointment of Successor. (a) Upon Servicer's receipt of
notice of termination pursuant to Section 8.1 or Servicer's resignation (if and
to the extent permitted in accordance with the terms of this Agreement), the
predecessor Servicer shall continue to perform its functions as Servicer under
this Agreement, in the case of termination, only until the date specified in
such termination notice or, if no such date is specified in a notice of
termination, until receipt of such notice and, in the case of resignation, until
the earlier of (i) the date 45 days from the delivery to Owner Trustee and
Indenture Trustee of written notice of such resignation (or written confirmation
of such notice) in accordance with the terms of this Agreement and (ii) the date
upon which the predecessor Servicer shall become unable to act as Servicer, as
specified in the notice of resignation and accompanying Opinion of Counsel. In
the event of Servicer's termination or resignation hereunder, Indenture Trustee
shall appoint a Successor Servicer, and the Successor Servicer shall accept its
appointment by a written assumption in form acceptable to Owner Trustee and
Indenture Trustee. In the event that a Successor Servicer has not been appointed
at the time when the predecessor Servicer has ceased to act as Servicer in
accordance with this Section, Indenture Trustee without further action shall
automatically be appointed the Successor Servicer and Indenture Trustee shall be
entitled to the Servicing Fee. Notwithstanding the above, Indenture Trustee
shall, if it shall be unwilling or unable so to act, appoint or petition a court
of competent jurisdiction to appoint, any established institution, having a net
worth of not less than $50,000,000 and whose regular business shall include the
servicing of motor vehicle receivables, as the successor to Servicer under this
Agreement; provided, that the appointment of any such Successor Servicer
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will not result in the withdrawal or reduction of the outstanding rating
assigned to the Certificates or Notes by any Rating Agency.
(b) Upon appointment, the Successor Servicer (including Indenture Trustee
acting as Successor Servicer) shall be the successor in all respects to the
predecessor Servicer and shall be subject to all the responsibilities, duties
and liabilities arising thereafter relating thereto placed on the predecessor
Servicer and shall be entitled to the Servicing Fee and all the rights granted
to the predecessor Servicer by the terms and provisions of this Agreement. No
Successor Servicer shall be liable for any acts or omissions of any predecessor
Servicer.
(c) A transfer of servicing hereunder shall not affect the rights and
duties of the parties hereunder (including the obligations and indemnities of
Seller pursuant to Sections 3.3, 4.3, 6.1 and 6.3 or, with respect to
obligations and indemnities arising prior to, or concurrently with, a transfer
of servicing hereunder, the predecessor Servicer pursuant to Section 4.7, 7.1 or
7.2) other than those relating to the management, administration, servicing,
custody or collection of the Receivables and the other rights and properties
included in the Owner Trust Estate. The Successor Servicer shall, upon its
appointment pursuant to Section 8.2 and as part of its duties and
responsibilities under this Agreement, promptly take all action it deems
necessary or appropriate so that the predecessor Servicer (in whatever capacity)
is paid or reimbursed all amounts it is entitled to receive under this Agreement
on each Distribution Date subsequent to the date on which it is terminated as
Servicer hereunder. Without limiting the generality of the foregoing, the
predecessor Servicer will be entitled to receive all accrued and unpaid
Servicing Fees through and including the effective date of the termination of
the predecessor Servicer.
SECTION 8.3. Payment of Servicing Fee. If Servicer shall be replaced, the
predecessor Servicer shall be entitled to receive any accrued and unpaid
Servicing Fees through the date of the Successor Servicer's acceptance hereunder
and any Supplemental Servicing Fees accrued and unpaid or received prior to such
date, in each case, in accordance with Section 4.8.
SECTION 8.4. Notification to Noteholders and Certificateholders. Upon any
termination of, or appointment of a successor to, Servicer pursuant to this
Article VIII, Owner Trustee shall give prompt written notice thereof to
Certificateholders and Indenture Trustee shall give prompt written notice
thereof to Noteholders subject to the Rating Agency Condition.
SECTION 8.5. Waiver of Past Defaults. The Holders of Notes evidencing not
less than a majority of the Outstanding Amount of the Notes (or the Holders of
Certificates evidencing not less than a majority of the outstanding Certificate
Balance, as applicable, in the case of any default which does not adversely
affect Indenture Trustee or the Noteholders) may, on behalf of all Noteholders
and Certificateholders, waive in writing any default by Servicer in the
performance of its obligations hereunder and its consequences, except a default
in making any required deposits to any of the Trust Accounts in accordance with
this Agreement. Upon any such waiver of a past default, such default shall cease
to exist, and any Servicer Termination Event arising therefrom shall be deemed
to have been remedied for every purpose of this Agreement. No such waiver shall
extend to any subsequent
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or other default or impair any right consequent thereto. Servicer shall provide
Standard & Poor's with written notice of any waiver of a Servicer Termination
Event arising under Section 8.1(c).
ARTICLE IX. TERMINATION.
SECTION 9.1. Optional Purchase of All Receivables; Termination Notice. (a)
On the last day of any Collection Period immediately preceding a Determination
Date as of which the then outstanding Pool Balance is 5% or less of the Original
Pool Balance, Seller shall have the option to purchase the Owner Trust Estate,
other than the Trust Accounts, and the Certificate Distribution Account and any
funds or investments therein. To exercise such option, Seller shall deposit
pursuant to Section 5.3 in the Collection Account an amount which, when added to
the amounts on deposit in the Collection Account for such Distribution Date,
equals the sum of (a) the unpaid principal amount of the then outstanding Notes,
plus accrued and unpaid interest thereon, plus (b) the Certificate Balance plus
accrued and unpaid interest thereon. The Notes and the Certificates will be
redeemed concurrently therewith.
(b) Following the satisfaction and discharge of the Indenture and the
payment in full of the principal of and interest on the Notes, the
Certificateholders will succeed to the rights of the Noteholders hereunder.
(c) Notice of any termination of Issuer shall be given by Servicer to
Owner Trustee, Indenture Trustee and the Rating Agencies as soon as practicable
after Servicer has received notice thereof.
ARTICLE X. MISCELLANEOUS PROVISIONS.
SECTION 10.1. Amendment. (a) This Agreement may be amended by Seller,
Servicer, Issuer and Indenture Trustee (which consent may not be unreasonably
withheld), but without the consent of any of the Noteholders or the
Certificateholders:
(i) to cure any ambiguity or defect, to correct or supplement any
provisions in this Agreement or for the purpose of adding any
provisions to or changing in any manner or eliminating any of
the provisions in this Agreement or of modifying in any manner
the rights of the Noteholders or the Certificateholders;
provided that such action shall not, as evidenced by an
Opinion of Counsel delivered to Owner Trustee and Indenture
Trustee, adversely affect in any material respect the
interests of any Noteholder or Certificateholder;
(ii) (A) to add, modify or eliminate such provisions as may be
necessary or advisable in order to enable all or a portion of
Issuer to qualify as, and to permit an election to be made to
cause all or a portion of Issuer to be treated as, a
"financial asset securitization investment trust" as described
under the Code, and (B) in connection with any such election,
to modify or eliminate
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existing provisions set forth in this Agreement relating to
the intended federal income tax treatment of the Notes or
Certificates and Issuer in the absence of the election; it
being a condition to any such amendment that the Rating Agency
Condition shall have been met.
(iii) to add, modify or eliminate such provisions as may be
necessary or advisable in order to enable (a) the transfer to
Issuer of all or any portion of the Receivables to be
derecognized under generally accepted accounting principles
("GAAP") by Seller to Issuer, (b) Issuer to avoid becoming a
member of Seller's consolidated group under GAAP or (c) the
Seller or any Affiliate of the Seller or any of their
Affiliates to otherwise comply with or obtain more favorable
treatment under any law or regulation or any accounting rule
or principle; it being a condition to any such amendment that
the Rating Agency Condition shall have been met.
(b) This Agreement may also be amended from time to time by Seller,
Servicer, Issuer and Indenture Trustee, with the consent of the Holders of Notes
evidencing not less than a majority of the Outstanding Amount of the Notes and
the consent of the Holders of Certificates evidencing not less than a majority
of the Certificate Balance for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement or
of modifying in any manner the rights of the Noteholders or the
Certificateholders; provided that no such amendment shall (i) increase or reduce
in any manner the amount of, or accelerate or delay the timing of, collections
of payments on Receivables or distributions that shall be required to be made
for the benefit of the Noteholders or the Certificateholders or (ii) reduce the
aforesaid percentage of the Outstanding Amount of the Notes and the Certificate
Balance, the Holders of which are required to consent to any such amendment,
without the consent of the Holders of all the outstanding Notes and the Holders
of all the outstanding Certificates of each class affected thereby.
(c) Prior to the execution of any such amendment or consent, Servicer
shall furnish written notification of the substance of such amendment or consent
to each Rating Agency. Promptly after the execution of any such amendment or
consent, Servicer shall furnish written notification of the substance of such
amendment or consent to each Noteholder and Certificateholder.
(d) It shall not be necessary for the consent of Certificateholders or
Noteholders pursuant to this Section to approve the particular form of any
proposed amendment or consent, but it shall be sufficient if such consent shall
approve the substance thereof.
(e) Prior to the execution of any amendment to this Agreement, Owner
Trustee and Indenture Trustee shall be entitled to receive and conclusively rely
upon an Opinion of Counsel stating that the execution of such amendment is
authorized or permitted by this Agreement and that all conditions precedent to
the execution and delivery of such amendment have been satisfied and the Opinion
of Counsel referred to in Section 10.2(i)(1) has been delivered. Owner Trustee
and Indenture Trustee may, but shall not be obligated to, enter into any such
amendment which affects
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Owner Trustee's or Indenture Trustee's, as applicable, own rights, duties or
immunities under this Agreement or otherwise.
SECTION 10.2. Protection of Title to Trust Property. (a) Seller shall
execute and file such financing statements and cause to be executed and filed
such continuation statements, all in such manner and in such places as may be
required by law fully to preserve, maintain and protect the interest of Issuer
and the interests of Indenture Trustee in the Receivables and the proceeds
thereof. Seller shall deliver (or cause to be delivered) to Owner Trustee and
Indenture Trustee file-stamped copies of, or filing receipts for, any document
filed as provided above, as soon as available following such filing.
(b) Neither Seller nor Servicer shall change its name, identity or
corporate structure in any manner that would, could or might make any financing
statement or continuation statement filed in accordance with paragraph (a) above
seriously misleading within the meaning of ss. 9-402(7) of the UCC, unless it
shall have given Owner Trustee and Indenture Trustee at least five days' prior
written notice thereof and shall have promptly filed appropriate amendments to
all previously filed financing statements or continuation statements.
(c) Each of Seller and Servicer shall have an obligation to give Owner
Trustee and Indenture Trustee at least 60 days' prior written notice of any
relocation of its principal executive office if, as a result of such relocation,
the applicable provisions of the UCC would require the filing of any amendment
of any previously filed financing or continuation statement or of any new
financing statement and shall promptly file any such amendment or new financing
statement. Servicer shall at all times maintain each office from which it shall
service Receivables, and its principal executive office, within the United
States of America.
(d) Servicer shall maintain accounts and records as to each Receivable
accurately and in sufficient detail to permit (i) the reader thereof to know at
any time the status of such Receivable, including payments and recoveries made
and payments owing (and the nature of each) and (ii) reconciliation between
payments or recoveries on (or with respect to) each Receivable and the amounts
from time to time deposited in the Collection Account in respect of such
Receivable.
(e) Servicer shall maintain its computer systems so that, from and after
the time of sale under this Agreement of the Receivables, Servicer's master
computer records (including any backup archives) that refer to a Receivable
shall indicate clearly the interest of Issuer and Indenture Trustee in such
Receivable and that such Receivable is owned by Issuer and has been pledged to
Indenture Trustee pursuant to the Indenture. Indication of Issuer's and
Indenture Trustee's interest in a Receivable shall be deleted from or modified
on Servicer's computer systems when, and only when, the related Receivable shall
have been paid in full or repurchased by Seller or purchased by Servicer.
(f) If at any xxxx Xxxxxx or Servicer shall propose to sell, grant a
security interest in or otherwise transfer any interest in automotive
receivables to any prospective purchaser, lender or other transferee, Servicer
shall give to such prospective purchaser, lender or other transferee computer
tapes, records or printouts (including any restored from backup archives) that,
if they shall
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refer in any manner whatsoever to any Receivable, shall indicate clearly that
such Receivable has been sold and is owned by Issuer and has been pledged to
Indenture Trustee.
(g) Servicer shall permit Indenture Trustee, Owner Trustee and their
respective agents at any time during normal business hours to inspect, audit and
make copies of and abstracts from Servicer's records regarding any Receivable.
(h) Upon request at any time Owner Trustee or Indenture Trustee shall have
reasonable grounds to believe that such request is necessary in connection with
the performance of its duties under this Agreement or any of the Basic
Documents, Servicer shall furnish to Owner Trustee or to Indenture Trustee,
within thirty Business Days, a list of all Receivables (by contract number and
name of Obligor) then owned by Issuer, together with a reconciliation of such
list to the Schedule of Receivables and to each of Servicer's Reports furnished
before such request indicating removal of Receivables from Issuer.
(i) Servicer shall deliver to Owner Trustee and Indenture Trustee:
(1) promptly after the execution and delivery of this
Agreement and of each amendment thereto, an Opinion of Counsel
either (A) stating that, in the opinion of such counsel, all
financing statements and continuation statements have been
executed and filed that are necessary fully to preserve and
protect the interest of Issuer and Indenture Trustee in the
Receivables, and reciting the details of such filings or
referring to prior Opinions of Counsel in which such details
are given, or (B) stating that, in the opinion of such
counsel, no such action shall be necessary to preserve and
protect such interest; and
(2) within 120 days after the beginning of each calendar year
beginning with the first calendar year beginning more than
three months after the Cutoff Date, an Opinion of Counsel,
dated as of a date during such 120-day period, either (A)
stating that, in the opinion of such counsel, all financing
statements and continuation statements have been executed and
filed that are necessary fully to preserve and protect the
interest of Issuer and Indenture Trustee in the Receivables,
and reciting the details of such filings or referring to prior
Opinions of Counsel in which such details are given, or (B)
stating that, in the opinion of such counsel, no such action
shall be necessary to preserve and protect such interest.
Each Opinion of Counsel referred to in clause (1) or (2) above shall
specify any action necessary (as of the date of such opinion) to be taken in the
following year to preserve and protect such interest.
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(j) Seller shall, to the extent required by applicable law, cause the
Certificates and the Notes to be registered with the Commission pursuant to
Section 12(b) or Section 12(g) of the Exchange Act within the time periods
specified in such sections.
SECTION 10.3. Notices. All demands, notices and communications upon or to
Seller, Servicer, Owner Trustee, Indenture Trustee or the Rating Agencies under
this Agreement shall be in writing, personally delivered, sent by overnight
courier or mailed by certified mail, return receipt requested, and shall be
deemed to have been duly given upon receipt (a) in the case of Seller, to Key
Consumer Acceptance Corporation, Xxx Xxxxx, 000 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxx
00000-0000, Attention: President (b) in the case of Servicer, to Key Bank USA,
Xxx Xxxxx, 000 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxx 00000-0000, Attention: Chief
Financial Officer, (c) in the case of Issuer or Owner Trustee, at the Corporate
Trust Office, (d) in the case of Indenture Trustee, at the Corporate Trust
Office, (e) in the case of Moody's, to Xxxxx'x Investors Service, Inc., to 00
Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention of Asset Backed Securities
Group, (f) in the case of Standard & Poor's, to Standard & Poor's Ratings
Services, a division of The XxXxxx-Xxxx Companies, Inc., 00 Xxxxxxxx (00xx
Xxxxx), Xxx Xxxx, Xxx Xxxx 00000, Attention of Asset Backed Surveillance
Department, and (g) in the case of Fitch, to Fitch IBCA, Inc., Xxx Xxxxx Xxxxxx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 Attention: Asset Backed Surveillance
Department,. Any notice required or permitted to be mailed to a Noteholder or
Certificateholder shall be given by first class mail, postage prepaid, at the
address of such Person as shown in the Note Register or the Certificate
Register, as applicable. Any notice so mailed within the time prescribed in this
Agreement shall be conclusively presumed to have been duly given, whether or not
the Noteholder or Certificateholder shall receive such notice.
SECTION 10.4. Assignment. Notwithstanding anything to the contrary
contained herein, except as provided in Sections 3.4, 4.1, 6.4 and 7.3 and as
provided in the provisions of this Agreement concerning the resignation of
Servicer, this Agreement may not be assigned by Seller or Servicer without the
prior written consent of the Owner Trustee, Indenture Trustee, the Noteholders
evidencing not less than 66 2/3% of the Outstanding Amount of the Notes and the
Certificateholders evidencing not less than 66 2/3% of the outstanding
Certificate Balance.
SECTION 10.5. Limitations on Rights of Others. The provisions of this
Agreement are solely for the benefit of Seller, Servicer, Issuer, Owner Trustee
and for the benefit of the Certificateholders and the Noteholders, as
third-party beneficiaries, and nothing in this Agreement, whether express or
implied, shall be construed to give to any other Person any legal or equitable
right, remedy or claim in the Owner Trust Estate or under or in respect of this
Agreement or any covenants, conditions or provisions contained herein.
SECTION 10.6. Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not create or render unenforceable
such provision in any other jurisdiction.
SALE AND SERVICING AGREEMENT
39
45
SECTION 10.7. Separate Counterparts. This Agreement may be executed by the
parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
SECTION 10.8. Headings. The headings of the various Articles and Sections
herein are for convenience of reference only and shall not define or limit any
of the terms or provisions hereof.
SECTION 10.9. Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 10.10. Assignment to Indenture Trustee. Seller hereby acknowledges
and consents to any mortgage, pledge, assignment and grant of a security
interest by Issuer to Indenture Trustee pursuant to the Indenture for the
benefit of the Noteholders of all right, title and interest of Issuer in, to and
under the Receivables and/or the assignment of any or all of Issuer's rights and
obligations hereunder to Indenture Trustee.
SECTION 10.11. Nonpetition Covenant. Notwithstanding any prior termination
of this Agreement, Servicer and Seller shall not, prior to the date which is one
year and one day after the termination of this Agreement with respect to Issuer,
acquiesce, petition or otherwise invoke or cause Issuer to invoke the process of
any court or government authority for the purpose of commencing or sustaining a
case against Issuer under any Federal or state bankruptcy, insolvency or similar
law or appointing a receiver, liquidator, assignee, trustee, custodian,
sequestrator or other similar official of Issuer or any substantial part of its
property, or ordering the winding up or liquidation of the affairs of Issuer.
SECTION 10.12. Limitation of Liability of Owner Trustee and Indenture
Trustee. (a) Notwithstanding anything contained herein to the contrary, this
Agreement has been countersigned by Chase Manhattan Bank Delaware not in its
individual capacity but solely in its capacity as Owner Trustee of Issuer and in
no event shall Chase Manhattan Bank Delaware in its individual capacity or,
except as expressly provided in the Trust Agreement, as Owner Trustee have any
liability for the representations, warranties, covenants, agreements or other
obligations of Issuer hereunder or in any of the certificates, notices or
agreements delivered pursuant hereto, as to all of which recourse shall be had
solely to the assets of Issuer. For all purposes of this Agreement, in the
performance of its duties or obligations hereunder or in the performance of any
duties or obligations of Issuer hereunder, Owner Trustee shall be subject to,
and entitled to the benefits of, the terms and provisions of Articles VI, VII
and VIII of the Trust Agreement.
(b) Notwithstanding anything contained herein to the contrary, this
Agreement has been accepted by Bankers Trust Company not in its individual
capacity but solely as Indenture Trustee and in no event shall Bankers Trust
Company have any liability for the representations, warranties, covenants,
agreements or other obligations of Issuer hereunder or in any of the
certificates, notices
SALE AND SERVICING AGREEMENT
40
46
or agreements delivered pursuant hereto, as to all of which recourse shall be
had solely to the assets of Issuer.
SECTION 10.13. Further Assurances. Seller and the Servicer agree to do and
perform, from time to time, any and all acts and to execute any and all further
instruments required or reasonably requested by Owner Trustee or Indenture
Trustee more fully to effect the purposes of this Agreement, including, without
limitation, the execution of any financing statements or continuation statements
relating to the Receivables for filing under the provisions of the UCC of any
applicable jurisdiction.
SECTION 10.14. No Waiver; Cumulative Remedies. No failure to exercise and
no delay in exercising, on the part of the Owner Trustee, Indenture Trustee, the
Noteholders or the Certificateholders, any right, remedy, power or privilege
hereunder, shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges therein provided are
cumulative and not exhaustive of any rights, remedies, powers and privileges
provided by law.
SALE AND SERVICING AGREEMENT
41
47
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their respective duly authorized officers as of
the day and year first above written.
KEY AUTO FINANCE TRUST 1999-1
By: CHASE MANHATTAN BANK DELAWARE,
a Delaware banking corporation, not
in its individual capacity, but
solely as Owner Trustee
By: /s/Xxxxxx Xxxxx
-----------------------------------------
Name: Xxxxxx Xxxxx
Title: Trust Officer
KEY CONSUMER ACCEPTANCE CORPORATION,
as Seller
By: /s/Xxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxx
Title: President and Chief Executive Officer
KEY BANK USA, NATIONAL ASSOCIATION,
as Servicer,
By: /s/Xxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxx
Title: Senior Vice President
BANKERS TRUST COMPANY, a New York
banking corporation, not in its
individual capacity but solely as
Indenture Trustee,
By: /s/Xxxxxxxxxxx Xxx
-----------------------------------------
Name: Xxxxxxxxxxx X. Xxx
Title: Assistant Treasurer
SALE AND SERVICING AGREEMENT
S-1
48
SCHEDULE 1
Schedule of Receivables
Delivered on Disk to Indenture Trustee and Owner Trustee
SALE AND SERVICING AGREEMENT
Schedule 1-1
49
SCHEDULE 2
Location of Receivables Files
The Receivables sold by the Bank to Seller and sold by Seller to Issuer are
located at the offices of the Bank listed below.
Key Bank USA, National Association
Key Tower
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000-0000
Records Management
0000 Xxxxxxxx Xxxx
Xxxxxxxx, Xxxx 00000
OH-01-50-0602
Xxxxx Xxxxxx
Records Management
000 Xxxx Xxxx Xxxxxx Xxxxxxxxx
Xxxxx, Xxxxx 00000
ID-56-PC-0104
Xxxxxxx Xxxxxxx
Records Management
00 Xxxxxxxxx Xxxxx Xxxxxxxxx
Xxxxxx, Xxx Xxxx 00000
NY-31-22-0262
Xxx Xxxxxx
Automotive Specialty Finance, a business unit of Key Bank USA
000 Xxxxxxx Xxxx
Xxxxx 000
Xxxxxxxx, Xxxxxxxx 00000-0000
SALE AND SERVICING AGREEMENT
Schedule 2-1
50
EXHIBIT A
FORM OF MONTHLY CERTIFICATEHOLDER STATEMENT
[ATTACHED]
SALE AND SERVICING AGREEMENT
Exhibit A-1
51
Key Auto Finance Trust 1999-1
Monthly Statement to Noteholders and Certificateholders
Servicer: Key Bank USA, N.A.
Indenture Trustee: Bankers Trust Company
Owner Trustee: Chase Manhattan Bank Delaware
Collection Period:
Distribution Date:
Statement for Class A, Class B and Class C Noteholders and Ceritifcateholders Per $1,000 or Original
Pursuant to Section 5.6 of the Sale and Servicing Agreement Class A/B/C Note Amount
or Certificate Amount
-----------------------
(i) Principal Distribution
Class A-1 Note Amount 0.00 0.0000000
Class A-2 Note Amount 0.00 0.0000000
Class A-3 Note Amount 0.00 0.0000000
Class A-4 Note Amount 0.00 0.0000000
Class B Note Amount 0.00 0.0000000
Class C Note Amount 0.00 0.0000000
Certificate Amount
(ii) Interest Distribution
Class A-1 Note Amount 0.00 0.0000000
Class A-2 Note Amount 0.00 0.0000000
Class A-3 Note Amount 0.00 0.0000000
Class A-4 Note Amount 0.00 0.0000000
Class B Note Amount 0.00 0.0000000
Class C Note Amount 0.00 0.0000000
Certificate Amount
(iii) Total Pool Balance of Notes and Certificates (end of Collection Period) 0.00
(iv) Class A-1 Notes Balance (end of Collection Period) 0.00
Class A-1 Pool Factor (end of Collection Period) 0.0000000
Class A-2 Notes Balance (end of Collection Period) 0.00
Class A-2 Pool Factor (end of Collection Period) 0.0000000
Class A-3 Notes Balance (end of Collection Period) 0.00
Class A-3 Pool Factor (end of Collection Period) 0.0000000
Class A-4 Notes Balance (end of Collection Period 0.00
Class A-4 Pool Factor (end of Collection Period) 0.0000000
Class B Notes Balance (end of Collection Period) 0.00
Class B Pool Factor (end of Collection Period) 0.0000000
Class C Notes Balance (end of Collection Period) 0.00
Class C Pool Factor (end of Collection Period) 0.0000000
Certificates Balance (end of Collection Period) 0.00
Certificates Pool Factor (end of Collection Period) 0.0000000
(v) Basic Servicing Fee 0.00 0.0000000
(vi) Aggregate Realized Losses 0.00
SALE AND SERVICING AGREEMENT
Exhibit A-2
52
Key Auto Finance Trust 1999-1
Monthly Statement to Noteholders and Certificateholders
Servicer: Key Bank USA, N.A.
Indenture Trustee: Bankers Trust Company
Owner Trustee: Chase Manhattan Bank Delaware
Collection Period:
Distribution Date:
Per $1,000 of Original
Statement for Class A, Class B and Class C Noteholders and Certificateholders Class A/B/C Note Amount
Pursuant to Section 5.6 of the Sale and Servicing Agreement or Certificate Amount
-----------------------
(vii) Reserve Account Balance after Giving Effect to Payments 0.00
Made on Distribution Date
Specified Reserve Account Balance after Giving Effect to Payments 0.00
Made on Distribution Date
Distribution to Seller from Reserve Account 0.00
Draws on Reserve Account 0.00
Deposits to Reserve Account 0.00
(vii) Class A-1 Notes Interest Carryover Shortfall 0.00 0.0000000
Class A-2 Notes Interest Carryover Shortfall 0.00 0.0000000
Class A-3 Notes Interest Carryover Shortfall 0.00 0.0000000
Class A-4 Notes Interest Carryover Shortfall
Class B Notes Interest Carryover Shortfall
Class C Notes Interest Carryover Shortfall 0.00 0.0000000
Certificates Interest Carryover Shortfall 0.00 0.0000000
Class A-1 Notes Principal Carryover Shortfall 0.00 0.0000000
Class A-2 Notes Principal Carryover Shortfall 0.00 0.0000000
Class A-3 Notes Principal Carryover Shortfall 0.00 0.0000000
Class A-4 Notes Principal Carryover Shortfall 0.00 0.0000000
Class B Notes Principal Carryover Shortfall 0.00 0.0000000
Class C Notes Principal Carryover Shortfall 0.00 0.0000000
Certificates Principal Carryover Shortfall 0.00 0.0000000
(ix) Additional Principal Distributable Amount 0.00
(x) Aggregate Purchase Amount of Receivables Repurchased by the 0.00
Seller or purchased by Servicer
(xi) Delinquent Contracts Number Balance
------------------------------
30-59 Days 0 0.00
60-89 Days 0 0.00
90 Days or More 0 0.00
SALE AND SERVICING AGREEMENT
Exhibit A-3
53
EXHIBIT B
FORM OF MONTHLY NOTEHOLDER STATEMENT
[ATTACHED]
SALE AND SERVICING AGREEMENT
Exhibit B-1
54
Key Auto Finance Trust 1999-1
Monthly Statement to Noteholders and Certificateholders
Servicer: Key Bank USA, N.A.
Indenture Trustee: Bankers Trust Company
Owner Trustee: Chase Manhattan Bank Delaware
Collection Period:
Distribution Date:
Statement for Class A, Class B and Class C Noteholders and Ceritifcateholders Per $1,000 or Original
Pursuant to Section 5.6 of the Sale and Servicing Agreement Class A/B/C Note Amount
or Certificate Amount
-----------------------
(i) Principal Distribution
Class A-1 Note Amount 0.00 0.0000000
Class A-2 Note Amount 0.00 0.0000000
Class A-3 Note Amount 0.00 0.0000000
Class A-4 Note Amount 0.00 0.0000000
Class B Note Amount 0.00 0.0000000
Class C Note Amount 0.00 0.0000000
Certificate Amount
(ii) Interest Distribution
Class A-1 Note Amount 0.00 0.0000000
Class A-2 Note Amount 0.00 0.0000000
Class A-3 Note Amount 0.00 0.0000000
Class A-4 Note Amount 0.00 0.0000000
Class B Note Amount 0.00 0.0000000
Class C Note Amount 0.00 0.0000000
Certificate Amount
(iii) Total Pool Balance of Notes and Certificates (end of Collection Period) 0.00
(iv) Class A-1 Notes Balance (end of Collection Period) 0.00
Class A-1 Pool Factor (end of Collection Period) 0.0000000
Class A-2 Notes Balance (end of Collection Period) 0.00
Class A-2 Pool Factor (end of Collection Period) 0.0000000
Class A-3 Notes Balance (end of Collection Period) 0.00
Class A-3 Pool Factor (end of Collection Period) 0.0000000
Class A-4 Notes Balance (end of Collection Period 0.00
Class A-4 Pool Factor (end of Collection Period) 0.0000000
Class B Notes Balance (end of Collection Period) 0.00
Class B Pool Factor (end of Collection Period) 0.0000000
Class C Notes Balance (end of Collection Period) 0.00
Class C Pool Factor (end of Collection Period) 0.0000000
Certificates Balance (end of Collection Period) 0.00
Certificates Pool Factor (end of Collection Period) 0.0000000
(v) Basic Servicing Fee 0.00 0.0000000
(vi) Aggregate Realized Losses 0.00
SALE AND SERVICING AGREEMENT
Exhibit B-2
55
Key Auto Finance Trust 1999-1
Monthly Statement to Noteholders and Certificateholders
Servicer: Key Bank USA, N.A.
Indenture Trustee: Bankers Trust Company
Owner Trustee: Chase Manhattan Bank Delaware
Collection Period:
Distribution Date:
Per $1,000 of Original
Statement for Class A, Class B and Class C Noteholders and Certificateholders Class A/B/C Note Amount
Pursuant to Section 5.6 of the Sale and Servicing Agreement or Certificate Amount
-----------------------
(vii) Reserve Account Balance after Giving Effect to Payments 0.00
Made on Distribution Date
Specified Reserve Account Balance after Giving Effect to Payments 0.00
Made on Distribution Date
Distribution to Seller from Reserve Account 0.00
Draws on Reserve Account 0.00
Deposits to Reserve Account 0.00
(vii) Class A-1 Notes Interest Carryover Shortfall 0.00 0.0000000
Class A-2 Notes Interest Carryover Shortfall 0.00 0.0000000
Class A-3 Notes Interest Carryover Shortfall 0.00 0.0000000
Class A-4 Notes Interest Carryover Shortfall
Class B Notes Interest Carryover Shortfall
Class C Notes Interest Carryover Shortfall 0.00 0.0000000
Certificates Interest Carryover Shortfall 0.00 0.0000000
Class A-1 Notes Principal Carryover Shortfall 0.00 0.0000000
Class A-2 Notes Principal Carryover Shortfall 0.00 0.0000000
Class A-3 Notes Principal Carryover Shortfall 0.00 0.0000000
Class A-4 Notes Principal Carryover Shortfall 0.00 0.0000000
Class B Notes Principal Carryover Shortfall 0.00 0.0000000
Class C Notes Principal Carryover Shortfall 0.00 0.0000000
Certificates Principal Carryover Shortfall 0.00 0.0000000
(ix) Additional Principal Distributable Amount 0.00
(x) Aggregate Purchase Amount of Receivables Repurchased by the 0.00
Seller or purchased by Servicer
(xi) Delinquent Contracts Number Balance
------------------------------
30-59 Days 0 0.00
60-89 Days 0 0.00
90 Days or More 0 0.00
SALE AND SERVICING AGREEMENT
Exhibit B-3
56
--------------------------------------------------------------------------------
EXHIBIT C
FORM OF SERVICER'S REPORT
[ATTACHED]
SALE AND SERVICING AGREEMENT
Exhibit C-1
57
Key Auto Finance Trust 1999-1
Monthly Servicer Report
Servicer: Key Bank USA, N.A.
Indenture Trustee: Bankers Trust Company
Owner Trustee: Chase Manhattan Bank Delaware
Collection Period:
Distribution Date:
Reconciliation of Collections and Distributions
on the Class A, Class B, and Class C Notes and Certificates
(A) Sources of Funds
(i) Interest Collections 0.00
(ii) Principal Collections 0.00
(iii) Liquidation Proceeds 0.00
(iv) Repurchased Receivables 0.00
(v) Draws on Reserve Account (0.00)
(vi) Release from Reserve Account to Turbo (0.00)
------
Total Sources of Funds (0.00)
(B) Uses of Funds
(i) Basic Servicing Fee 0.00
(ii) Interest Distribution
(ii-a) Class A-1 Note Amount 0.00
(ii-b) Class A-2 Note Amount 0.00
(ii-c) Class A-3 Note Amount 0.00
(ii-d) Class A-4 Note Amount 0.00
(ii-e) Class B Note Amount 0.00
(ii-f) Class C Note Amount 0.00
(ii-g) Certificates Amount 0.00
(iii) Principal Distribution
(iii-a) Class A-1 Note Amount (0.00)
(iii-b) Class A-2 Note Amount 0.00
(iii-c) Class A-3 Note Amount 0.00
(iii-d) Class A-4 Note Amount 0.00
(iii-e) Class B Note Amount 0.00
(iii-f) Class C Note Amount 0.00
(iii-g) Certificates Amount 0.00
(iv) Deposit to Reserve Account 0.00
(v) Additional Distribution to Seller 0.00
(vi) Additional Servicing Fee Paid 0.00
----
Total Uses of Funds (0.00)
SALE AND SERVICING AGREEMENT
Exhibit C-2
58
(C) Summary of Funds' Transfer
(1) Basic Servicing Fee Due Servicer (netted against wire) 0.00
(2) Deposit to Collection Account
(i) Deposit from Servicer for Distribution to Certificateholders 0.00
(ii) Deposit from Servicer for Distribution to Seller 0.00
(iii) Deposit from Servicer for Distribution to Reserve Account 0.00
(iv) Draw on Reserve Account 0.00
(v) Draw on Payahead Account 0.00
----
Total Deposit to Collection Account: 0.00
(3) Deposit to Note Distribution Account
(i) Deposit from Servicer for Distribution to Noteholders 0.00
(ii) Release from Reserve Account to Turbo (0.00)
(iii) Draw on Reserve Account (0.00)
(iv) Draw on Payahead Account (0.00)
------
Total Deposit to Note Distribution Account: (0.00)
(4) Deposit to Payahead Account
(i) Deposit from Servicer 0.00
----
Total Deposit to Payahead Account: 0.00
Total Deposits: (0.00)
=====
(5) Distribution from Collection Account
(i) Distribution to Certifcateholders (Chase Manhattan Bank Delaware)
(i-a) Principal 0.00
(i-b) Interest 0.00
----
Total Distribution to Certificateholders 0.00
(ii) Distribution to Seller 0.00
(iii) Deposit to Reserve Account 0.00
----
Total Collection Account Distribution: 0.00
(6) Distribution from Note Distribution Account
(i) Distribution to Noteholders
(i-a) Class A-1 Principal (0.00)
(i-b) Class A-1 Interest 0.00
----
Total Class A-1 Distribution (0.00)
(ii) Distribution to Noteholders
(ii-a) Class A-2 Principal 0.00
(ii-b) Class A-2 Interest 0.00
----
Total Class A-2 Distribution 0.00
(iii) Distribution to Noteholders
(iii-a) Class A-3 Principal 0.00
(iii-b) Class A-3 Interest 0.00
----
Total Class A-3 Distribution 0.00
(iv) Distribution to Noteholders
(iv-a) Class A-4 Principal 0.00
(iv-b) Class A-4 Interest 0.00
----
Total Class A-4 Distribution 0.00
(v) Distribution to Noteholders
(v-a) Class B Principal 0.00
(v-b) Class B Interest 0.00
----
Total Class B Distribution 0.00
SALE AND SERVICING AGREEMENT
Exhibit C-3
59
(vi) Distribution to Noteholders
(vi-a) Class C Principal 0.00
(vi-b) Class C Interest 0.00
----
Total Class C Distribution 0.00
Total Note Distribution Account Distribution: (0.00)
(7) Deposit to Payahead Account 0.00
Total Distributions: (0.00)
======
(8) Distribution from Payahead Account
(i) Release to Collection Account 0.00
(ii) Release to Note Distribution Account 0.00
(9) Reserve Account
(i) Release to Seller 0.00
(ii) Investment Income Release to Seller 0.00
(iii) Release to Turbo (0.00)
(iv) Release to Note Distribution Account (0.00)
SALE AND SERVICING AGREEMENT
Exhibit C-4
