Exhibit 10.2
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BMW MANUFACTURING LP,
as Grantor and UTI Beneficiary,
and
CHASE MANHATTAN BANK USA, N.A.,
as Trustee
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2000-A
VEHICLE TRUST
SUPPLEMENT
Dated as of November 1, 2000
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TABLE OF CONTENTS
Page
ARTICLE I - DEFINITIONS..........................................................................................2
1.1 Definitions..........................................................................................3
1.2 Interpretive Provisions..............................................................................7
ARTICLE II - CREATION OF THE 2000-A SUBIs.........................................................................7
2.1 Creation of 2000-A SUBI Assets and the 2000-A SUBIs..................................................7
2.2 Transfer of 2000-A SUBI Interests....................................................................8
2.3 Issuance and Form of 2000-A SUBI Certificates; Retained SUBI Interest................................9
2.4 Actions and Filings.................................................................................10
2.5 Termination of the 2000-A SUBIs.....................................................................10
2.6 Representations and Warranties of Trustee...........................................................11
ARTICLE III - 2000-A SUBI ACCOUNTS................................................................................11
3.1 2000-A SUBI Collection Account and Residual Value Surplus Account...................................11
3.2 Reserve Fund........................................................................................12
3.3 Investment of Monies in 2000-A SUBI Accounts........................................................12
ARTICLE IV - 2000-A SUBI PLEDGE..................................................................................12
4.1 Registration of 2000-A Lease SUBI Pledge............................................................12
ARTICLE V - MISCELLANEOUS PROVISIONS............................................................................12
5.1 Amendment...........................................................................................12
5.2 Governing Law.......................................................................................13
5.3 Notices.............................................................................................13
5.4 Severability of Provisions..........................................................................14
5.5 Effect of Supplement on Vehicle Trust Agreement.....................................................14
5.6 No Petition.........................................................................................14
EXHIBITS
Exhibit A - Schedule of 2000-A Vehicles..................................................................................A-1
Exhibit B - Form of 2000-A SUBI Certificate..............................................................................B-1
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2000-A VEHICLE TRUST SUPPLEMENT
This 2000-A Vehicle Trust Supplement, dated as of November 1, 2000,
is between BMW Manufacturing LP, an Indiana limited partnership, as grantor and
initial beneficiary (in such capacities, the "Grantor" and the "UTI
Beneficiary", respectively) and Chase Manhattan Bank USA, N.A., a national
banking association, as trustee (in such capacity, the "Trustee").
RECITALS
WHEREAS, pursuant to that certain amended and restated trust
agreement, dated as of September 27, 1996, as further amended as of May 25, 2000
(the "Vehicle Trust Agreement"), among the parties hereto, Financial Services
Vehicle Trust, a Delaware business trust (the "Trust"), will take assignments
and conveyances of and hold in trust various Trust Assets (as such term is
defined in the Vehicle Trust Agreement);
WHEREAS, the UTI Beneficiary, BMW Financial Services NA, LLC, a
Delaware limited liability company ("BMW FS"), as servicer (in such capacity,
the "Servicer") and the Trust have entered into that certain servicing
agreement, dated as of August 30, 1995 (the "Basic Servicing Agreement"), which
provides for, among other things, the servicing of the Trust Assets by the
Servicer;
WHEREAS, pursuant to the Vehicle Trust Agreement, from time to time
the Trustee, on behalf of the Trust and at the direction of the UTI Beneficiary,
will identify and allocate on the books and records of the Trust certain Trust
Assets and create and issue one or more special units of beneficial interest
(each, a "SUBI"), the beneficiaries of which generally will be entitled to the
net cash flows arising from such Trust Assets;
WHEREAS, the parties hereto desire to supplement the Vehicle Trust
Agreement (as so supplemented by this Supplement, the "SUBI Trust Agreement") to
create two SUBIs (respectively, the "2000-A Lease SUBI" and the "2000-A Vehicle
SUBI);
WHEREAS, the parties hereto desire to identify and allocate to the
2000-A Lease SUBI a separate portfolio of Trust Assets consisting of leases (the
"2000-A Leases") and certain other related assets and to identify and allocate
to the 2000-A Vehicle SUBI the vehicles which are leased under the 2000-A Leases
(the "2000-A Vehicles"); and
WHEREAS, the parties hereto also desire to issue one certificate
evidencing a beneficial interest in the 2000-A Lease SUBI (respectively, the
"2000-A Lease SUBI Certificate") and one certificate evidencing an undivided
beneficial interest in the 2000-A Vehicle SUBI (respectively, the "2000-A
Vehicle SUBI Certificate").
NOW, THEREFORE, in consideration of the mutual agreements herein
contained, and of other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto agree as follows:
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DEFINITIONS
1.1 Definitions. Capitalized terms used herein that are not otherwise
defined shall have the meanings ascribed thereto in the Vehicle Trust Agreement.
Whenever used herein, unless the context otherwise requires, the following words
and phrases shall have the following meanings:
"Basic Documents" means the Vehicle Trust Agreement, the Basic
Servicing Agreement, this Supplement, the Servicing Supplement, the SUBI
Certificate Transfer Agreement, the Program Operating Lease, the Trust
Agreement, the Indenture, the Issuer SUBI Certificate Transfer Agreement, the
Control Agreement, the Back-up Security Agreement, the 2000-A SUBI Certificates
and the Securities, as the same may be amended, supplemented or modified from
time to time (but in each case only to the extent that any such amendment,
supplement or modification relates to the 2000-A SUBIs or the 2000-A SUBI
Assets).
"Basic Servicing Agreement" has the meaning set forth in the
Recitals.
"Certificate Distribution Account" has the meaning set forth in the
Trust Agreement.
"Closing Date" means November [ ], 2000.
"Contract Residual Value" means the residual value of the vehicle set
forth in the Lease schedule attached as Exhibit A hereto.
"Control Agreement" has the meaning set forth in the Issuer SUBI
Certificate Transfer Agreement.
"Cutoff Date" means October 1, 2000 as of the opening of business.
"Deposit Date" means, with respect to a Collection Period, the
Business Day preceding the related Payment Date.
"Eligible Lease" means a Lease that has been validly assigned to the
Trust by a BMW Center as of the Closing Date and for which the related 2000-A
Vehicle is one which the Trust or the Trustee on behalf of the Trust shall have
good and marketable title as of the Closing Date.
"Fitch" means Fitch Inc., and any successor thereto.
"FS Residual Value" means the residual value of the vehicle set forth
as the FS Residual Value in the Lease schedule attached as Exhibit A hereto.
"Indenture" means that certain indenture, dated as of November 1,
2000, between the Indenture Trustee and the Issuer, as amended or supplemented
from time to time.
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"Indenture Trustee" means The Chase Manhattan Bank, a New York
banking corporation, in its capacity as trustee under the Indenture.
"Issuer" means the BMW Vehicle Lease Trust 2000-A.
"Issuer SUBI Certificate Transfer Agreement" means that certain
issuer SUBI certificate transfer agreement, dated as of November 1, 2000,
between the Transferor and the Issuer, as amended or supplemented from time to
time.
"Moody's" means Moody's Investor Service, Inc., and any successor
thereto.
"Note" means either a Senior Note or a Subordinated Note, as the
context may require.
"Note Distribution Account" has the meaning set forth in the
Indenture.
"Other SUBI" means any SUBI other than a 2000-A SUBI.
"Outstanding Amount" has the meaning set forth in the Indenture.
"Owner Trustee" means Wilmington Trust Company, a Delaware
corporation, as trustee of the Issuer.
"Payment Date" means the 25th day of each month or if not a Business
Day, the next succeeding Business Day, commencing with the first Payment Date on
November 27, 2000.
"Payment Date Certificate" has the meaning set forth in the
Indenture.
"Payment Date Advance Reimbursement" has the meaning set forth in the
Servicing Supplement.
"Program Operating Lease" means that certain SUBI lease, dated as of
November 1, 2000, between BMW Auto Leasing LLC, as Program Lessee and BMW
Vehicle Lease Trust 2000-A, as Program Lessor.
"Rating Agency" means, with respect to the 2000-A SUBIs, each of
Moody's, S&P and Fitch.
"Registered Pledgee" means, with respect to any Certificate, the
Person listed in the registration books maintained by the Trustee as the
registered pledgee of such Certificate.
"Related Beneficiary" means BMW Auto Leasing LLC.
"Reserve Fund" has the meaning set forth in the Trust Agreement.
"Reserve Fund Requirement" means (i) 6.25% of the initial Securities
Balance, or (ii) on any Payment Date occurring on or after the earlier to occur
of the date on which the last remaining Lease terminates or the date on which
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the Program Operating Lease is terminated following a Program Operating Lease
Default (as such term is defined in the Program Operating Lease), zero.
"S&P" means Standard and Poor's Ratings Services, a division of the
McGraw-Hill Co., and any successor thereto.
"Sales Proceeds" has the meaning set forth in the Servicing
Supplement.
"Securities" means the Notes and the Trust Certificates.
"Securities Balance" has the meaning set forth in the Trust
Agreement.
"Securitization Value" has the meaning set forth in the Servicing
Supplement.
"Securityholder" means a holder of a Note or a Trust Certificate.
"Senior Note" has the meaning set forth in the Indenture.
"Servicing Agreement" means the Basic Servicing Agreement as
supplemented by the Servicing Supplement, as amended or supplemented from time
to time.
"Servicing Fee" has the meaning set forth in the Servicing
Supplement.
"Servicing Supplement" means that certain supplement, dated as of
November 1, 2000, among the parties to the Basic Servicing Agreement.
"SUBI" has the meaning set forth in the Recitals.
"SUBI Certificate Transfer Agreement" means that certain SUBI
certificate transfer agreement, dated as of November 1, 2000, between BMW
Manufacturing LP and the Transferor as amended or supplemented from time to
time.
"SUBI Collections" has the meaning set forth in the Servicing
Agreement.
"SUBI Collection Account" means a trust account established by the
Indenture Trustee for the benefit of the holders of interests in the SUBI, into
which collections on or in respect of the Leases and the related Vehicles will
generally be deposited.
"SUBI Trust Agreement" has the meaning set forth in the Recitals.
"Subordinated Notes" means the [ ]% Asset Backed Subordinated Notes
issued by the Issuer pursuant to the Trust Agreement.
"Supplement" means this supplement to the Vehicle Trust Agreement, as
amended or supplemented from time to time.
"Transferor" means BMW Auto Leasing LLC, a Delaware limited
partnership, and its successors.
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"Transferor Trust Certificate" has the meaning set forth in the Trust
Agreement.
"Trust" has the meaning set forth in the Recitals.
"Trust Agent" means The Chase Manhattan Bank, and any successor
thereto.
"Trust Agreement" means that certain trust agreement, as amended and
restated as of November 1, 2000, between the Owner Trustee and the Transferor.
"Trust Certificate" has the meaning set forth in the Trust Agreement.
"Trust Certificateholder" has the meaning set forth in the Trust
Agreement.
"Trustee" has the meaning set forth in the Recitals.
"Trust Estate" has the meaning set forth in the Indenture.
"UTI Beneficiary" has the meaning set forth in the Recitals.
"Vehicle Trust Agreement" has the meaning set forth in the Recitals.
"2000-A Lease SUBI" has the meaning set forth in the Recitals.
"2000-A Lease SUBI Assets" has the meaning set forth in Section
2.1(a).
"2000-A Lease SUBI Certificates" has the meaning set forth in the
Recitals.
"2000-A Leases" has the meaning set forth in Section 2.1(a).
"2000-A SUBI" means the 2000-A Lease SUBI and/or the 2000-A Vehicle
SUBI as the context may require.
"2000-A SUBI Account" means the 2000-A SUBI Collection Account, the
Residual Value Surplus Account and any other Trust Account established with
respect to the 2000-A SUBI.
"2000-A SUBI Assets" has the meaning set forth in Section 2.1(b).
"2000-A SUBI Certificates" means the 2000-A Lease SUBI Certificates
and/or the 2000-A Vehicle SUBI Certificates, as the context may require.
"2000-A SUBI Collection Account" means the trust account established
pursuant to Section 3.1(a).
"2000-A Vehicle SUBI" has the meaning set forth in the Recitals.
"2000-A Vehicle SUBI Assets" has the meaning set forth in Section
2.1(b).
"2000-A Vehicle SUBI Certificates" has the meaning set forth in the
Recitals.
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"2000-A Vehicles" has the meaning set forth in Section 2.1(b).
1.2 Interpretive Provisions. For all purposes of this Supplement,
except as otherwise expressly provided or unless the context otherwise requires,
(i) terms used herein include, as appropriate, all genders and the plural as
well as the singular, (ii) references to this Supplement include all Exhibits
hereto, (iii) references to words such as "herein", "hereof" and the like shall
refer to this Supplement as a whole and not to any particular part, Article or
Section herein, (iv) references to an Article or Section such as "Article Two"
or "Section 2.1" shall refer to the applicable Article or Section of this
Supplement, (v) the term "include" and all variations thereof shall mean
"include without limitation," and (vi) the term "proceeds" shall have the
meaning ascribed to such term in the UCC.
ARTICLE II - CREATION OF THE 2000-A SUBIs
2.1 Creation of 2000-A SUBI Assets and the 2000-A SUBIs.
(a) Pursuant to Section 5.2(a) of the Vehicle Trust Agreement, the
UTI Beneficiary hereby directs the Trustee to identify and allocate or to cause
to be identified and allocated to the 2000-A Lease SUBI on the books and records
of the Trust a separate portfolio of Trust Assets consisting of Eligible Leases
and other associated Trust Assets owned by the Trustee on behalf of the Trust
and not allocated to any SUBI or reserved for allocation to any Other SUBI (or
acquired by the Trustee on behalf of the Trust but not yet allocated to, or
reserved for allocation to any specific portfolio). Such Trust Assets (the
"2000-A Lease SUBI Assets") shall be accounted for and held in trust
independently from all other Trust Assets within the Trust. Based upon their
identification and allocation by the Servicer pursuant to the Servicing
Supplement, the Trustee hereby identifies and allocates as 2000-A Lease SUBI
Assets the Leases more particularly described on Exhibit A hereto ("the 2000-A
Leases") and the related Trust Assets described above, each such 2000-A Lease
SUBI Asset to be identified on the books and accounts of the Trust as being
allocated to the 2000-A Lease SUBI.
(b) Pursuant to Section 5.2(a) of the Vehicle Trust Agreement, the
UTI Beneficiary hereby directs the Trustee to identify and allocate or to cause
to be identified and allocated to the 2000-A Vehicle SUBI on the books and
records of the Trust a separate portfolio of Trust Assets consisting of Vehicles
and other associated Trust Assets owned by the Trustee on behalf of the Trust
and not allocated to any SUBI or reserved for allocation to any Other SUBI (or
acquired by the Trustee on behalf of the Trust but not yet allocated to, or
reserved for allocation to any specific portfolio). Such Trust Assets (the
"2000-A Vehicle SUBI Assets", and together with the 2000-A Lease SUBI Assets,
the "2000-A SUBI Assets") shall be accounted for and held in trust independently
from all other Trust Assets within the Trust. Based upon their identification
and allocation by the Servicer pursuant to the Servicing Supplement, the Trustee
hereby identifies and allocates as 2000-A Vehicle SUBI Assets the Vehicles more
particularly described on Exhibit A hereto (the "2000-A Vehicles") and the
related Trust Assets described above, each such 2000-A Vehicle SUBI Asset to be
identified on the books and accounts of the Trust as being allocated to the
2000-A Vehicle SUBI. The right to receive the difference, if any, between the
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Contract Residual Value and the FS Residual Value with respect to the 2000-A
Vehicles shall not be included in the 2000-A SUBI Assets. The 2000-A Vehicle
SUBI shall not represent any rights to receive Retained Support Amounts, which
rights shall remain part of the Unspecified Trust Interest.
(c) Pursuant to Section 5.2(a) of the Vehicle Trust Agreement, the
Trustee hereby creates two Sub-Trusts which shall be known as the "2000-A Lease
SUBI" and the "2000-A Vehicle SUBI" respectively. The 2000-A Lease SUBI shall
represent a special unit of beneficial interest solely in the 2000-A Lease SUBI
Assets and the 2000-A Vehicle SUBI shall represent a special unit of beneficial
interest solely in the 2000-A SUBI Vehicle Assets. Exhibit A shall set forth as
to each 2000-A Lease or 2000-A Vehicle, as the case may be, the (i) vehicle
identification number, (ii) date of origination, (iii) FS Residual Value, (iv)
Contract Residual Value, (v) Monthly Payment and (vii) number of months
remaining from the Cutoff Date to the month in which the Maturity Date occurs.
2.2 Transfer of 2000-A SUBI Interests. Interests in the 2000-A SUBIs
may not be transferred or assigned by the UTI Beneficiary, and any such
purported transfer or assignment shall be deemed null, void and of no effect;
provided, however, that the 2000-A SUBI Certificates and the interests in the
2000-A SUBI represented thereby may be (i) sold to the Transferor pursuant to
the SUBI Certificate Transfer Agreement and (ii) sold, transferred and assigned
by the Transferor absolutely, or a security interest therein granted, in
connection with a Securitized Financing. Each such transfer shall be registrable
upon surrender of the 2000-A SUBI Certificate to be transferred for registration
of the transfer at the corporate trust office of the Trustee (or the Trust
Agent, if applicable) or of any successor Trustee, accompanied by a written
instrument of transfer in form satisfactory to the Trustee or such successor
duly executed by the Holder thereof or such Holder's attorney duly authorized in
writing, and thereupon a new 2000-A SUBI Certificate of a like aggregate
fractional undivided interest will be issued to the designated permitted
transferee.
2.3 Issuance and Form of 2000-A SUBI Certificates; Retained SUBI
Interest.
The 2000-A Lease SUBI shall be represented by the 2000-A Lease SUBI
Certificate which shall represent a beneficial interest in the 2000-A Lease SUBI
and the 2000-A Lease SUBI Assets, as further set forth herein. The 2000-A
Vehicle SUBI shall be represented by the 2000-A Vehicle SUBI Certificate, which
shall represent a beneficial interest in the 2000-A Vehicle SUBI and the 2000-A
Vehicle SUBI Assets, as further set forth herein. The 2000-A SUBI Certificates
shall be substantially in the form of Exhibit B attached hereto, with such
appropriate insertions, omissions, substitutions and other variations as are
required by this Supplement and may have such letters, numbers or other marks of
identification and such legends and endorsements placed thereon as may,
consistently herewith and with the Vehicle Trust Agreement, be directed by the
UTI Beneficiary. Any portion of any 2000-A SUBI Certificate may be set forth on
the reverse thereof, in which case the following reference to the portion of the
8
text on the reverse shall be inserted on the face thereof, in relative proximity
to and prior to the signature of the Trustee executing such 2000-A SUBI
Certificate:
Reference is hereby made to the further provisions of this
certificate set forth on the reverse hereof, which provisions
shall for all purposes have the same effect as if set forth at
this place.
The 2000-A SUBI Certificates shall be printed, typewritten,
photocopied or may be produced in any other manner as may, consistently herewith
and with the Vehicle Trust Agreement, be determined by the UTI Beneficiary. Each
2000-A SUBI Certificate and the interest in the 2000-A SUBI evidenced thereby
shall constitute a "security" within the meaning of Section 8-102(a)(15) of the
UCC and a "certificated security" within the meaning of Section 8-102(a)(4) of
the UCC.
On the Closing Date, pursuant to Section 4.1 hereof , the Indenture
Trustee shall, and thereafter for so long as the lien of the Indenture is in
place, be registered as the Registered Pledgee of the 2000-A Vehicle SUBI
Certificate held by the Issuer and pledged as part of the Trust Estate to secure
the Issuer's obligations under the Indenture. Notwithstanding the foregoing, the
Transferor shall be entitled to exercise any and all rights or powers of a
Holder hereunder, in the absence of an Event of Default under the Indenture.
2.4 Actions and Filings. The UTI Beneficiary and the Trustee shall
undertake all other and future actions and activities as may be deemed
reasonably necessary by the Servicer pursuant to the Servicing Agreement to
perfect (or evidence) and confirm the foregoing allocations of Trust Assets to
each 2000-A SUBI, including filing or causing to be filed UCC financing
statements and executing and delivering all related filings, documents or
writings as may be deemed reasonably necessary by the Servicer hereunder or
under any other Basic Document. The UTI Beneficiary hereby irrevocably make and
appoint each of the Trustee and the Servicer, and any of their respective
officers, employees or agents, as the true and lawful attorney-in-fact of the
UTI Beneficiary (which appointment is coupled with an interest and is
irrevocable) with power to sign on behalf of the UTI Beneficiary any financing
statements, continuation statements, security agreements, mortgages,
assignments, affidavits, letters of authority, notices or similar documents
necessary or appropriate to be executed or filed pursuant to this Section.
2.5 Termination of the 2000-A SUBIs.
(a) In connection with any purchase by the Transferor of the corpus
of the Issuer pursuant to Article Nine of the Trust Agreement, the succession of
the Transferor to the interest in the 2000-A Vehicle SUBI represented by the
2000-A Vehicle SUBI Certificate and the discharge and release of the pledge by
the Transferor to the Issuer of the 2000-A Lease SUBI Certificate, should all of
the interest in each 2000-A SUBI thereafter be held by the Holder or Holders of
the UTI Certificates, whether by transfer, sale or otherwise, then upon the
direction of such Holders, each 2000-A SUBI shall be terminated, the 2000-A SUBI
Certificates shall be returned to the Trustee and canceled and the Servicer
shall reallocate all 2000-A SUBI Assets to the UTI.
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(b) Upon the sale of the Trust Estate pursuant to Section 5.04 of the Indenture,
the Indenture Trustee may direct the Owner Trustee promptly to sell, the Trust
Estate, including the 2000-A SUBI Assets (other than amounts on deposit in the
Distribution Accounts) in a commercially reasonable manner and on commercially
reasonable terms. In connection with any such sale, or the sale of the Trust
Estate pursuant to Section 5.04 of the Indenture, the 2000-A SUBI Assets shall
be distributed out of the Vehicle Trust at the direction of the Owner Trustee or
the Indenture Trustee, as applicable, and the purchaser shall take delivery of
such 2000-A SUBI Assets. The Vehicle Trustee and the other parties hereto shall
cooperate with the Owner Trustee or the Vehicle Trustee, as applicable, to cause
the related 2000-A Vehicles to be retitled as directed by the purchaser.
Following such sale, this Supplement shall terminate and each 2000-A SUBI shall
be terminated; provided however such termination shall affect the Vehicle Trust
only insofar as such termination relates to each 2000-A SUBI. Such termination
shall not entitle the legal representatives of the 2000-A SUBIs or any Holder of
a 2000-A SUBI Certificate to take any action for a partition or winding up of
the Trust or any Trust Assets except with respect to the 2000-A SUBI Assets and
the rights, obligations and Liabilities of the parties hereto shall not
otherwise be affected. Promptly after the occurrence of any bankruptcy,
insolvency or termination proceeding with respect to the Transferor, the
Transferor shall give the Indenture Trustee, the Owner Trustee and the Rating
Agencies written notice of such event. The proceeds of such sale shall be
distributed in the following amounts and priority:
(i) to the Indenture Trustee, all amounts required to be paid under
Section 6.07 of the Indenture or to the Owner Trustee, all amounts required to
be paid under Section 8.01 of the Trust Agreement, as the case may be;
(ii) to the Servicer, any Payment Date Advance Reimbursement;
(iii) to the Servicer, amounts due in respect of unpaid Servicing
Fees; and
(iv) any remaining amounts shall be distributed pro rata to the
Holders of the SUBI Certificates: to the Certificate Distribution Account (or,
if the lien of the Indenture is outstanding, the Note Distribution Account) and
distributed pursuant to Section 5.04(b) of the Indenture.
2.6 Representations and Warranties of Trustee. The Trustee hereby
reaffirms, as of the date hereof, the representations, warranties and covenants
set forth in Section 7.7 of the Vehicle Trust Agreement, on which the Grantors
and UTI Beneficiary, each of their permitted assignees and pledgees and each
Registered Pledgee and Holder or Related Beneficiary of a 2000-A SUBI
Certificate (and beneficial owner of any portion thereof, including the Issuer
and the Trust Certificateholders) may rely. For purposes of this Section, any
reference in Section 7.7 of the Vehicle Trust Agreement to the Vehicle Trust
Agreement shall be deemed to constitute references to the SUBI Trust Agreement.
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ARTICLE III - 2000-A SUBI ACCOUNTS
3.1 2000-A SUBI Collection Account.
(a) With respect to the 2000-A SUBIs, the Trustee shall establish,
and the Trust Agent shall maintain, in the name of the Trustee, for the
exclusive benefit of the holders of interests in the 2000-A SUBIs, the 2000-A
SUBI Collection Account, which account shall constitute a SUBI Collection
Account. The 2000-A SUBI Collection Account initially shall be established with
The Chase Manhattan Bank, as the Indenture Trustee, so long as the Indenture
Trustee has the Required Deposit Rating. If the Indenture Trustee at any time
does not have the Required Deposit Rating, the Servicer shall, with the
assistance of the Indenture Trustee, as necessary, cause the 2000-A SUBI
Collection Account to be moved as described in Section 6.3(e) of the Vehicle
Trust Agreement. The 2000-A SUBI Collection Account shall relate solely to the
2000-A SUBIs and the 2000-A SUBI Assets, and funds therein shall not be
commingled with any other monies, except as otherwise provided for in or
contemplated by the SUBI Trust Agreement or in the Servicing Agreement. All
deposits into the 2000-A SUBI Collection Account shall be made as described in
Section 2.2 of the Servicing Agreement.
(b) On each Deposit Date and Payment Date, pursuant to the
instructions from the Servicer, the Trustee shall make such deposits and
withdrawals from the 2000-A SUBI Collection Account as set forth in the
Servicing Supplement.
(c) Any transfer of funds to a Holder of a 2000-A SUBI Certificate
shall be made as directed pursuant to the Basic Documents.
3.2 Reserve Fund. Pursuant to Section 5.01 of the Trust Agreement,
the Transferor shall establish and maintain the Reserve Fund (a) with the
Indenture Trustee, until the Outstanding Amount is reduced to zero, and (b)
thereafter with the Owner Trustee. Deposits and withdrawals from the Reserve
Fund shall be made as directed pursuant to the Basic Documents, including
Section 8.04(b) of the Indenture, Section 10.01 of the Indenture and Section 3.3
hereof.
3.3 Investment of Monies in 2000-A SUBI Accounts. All amounts held in
the 2000-A SUBI Collection Account shall be invested in Permitted Investments.
Any investment earnings on the 2000-A SUBI Collection Account will be taxable to
the holder of the Transferor Certificate or to the Subordinated Noteholder. On
each Payment Date, the Trustee shall deposit all net income or other gain from
the foregoing investments in respect of the related Collection Period into the
Reserve Fund.
ARTICLE IV - 2000-A SUBI PLEDGE
4.1 Registration of 2000-A Lease SUBI Pledge.
The Transferor hereby acknowledges and confirms the pledge and
assignment to the Issuer of the 2000-A Lease SUBI Certificate and the grant to
the Issuer of a security interest therein pursuant to Section 2.4 of the Program
Operating Lease. The Transferor hereby notifies the Trustee that all of the
Issuer's right, title and interest with respect to such pledge, assignment and
grant of security interest has been assigned to the Indenture Trustee pursuant
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to the Indenture and the Transferor hereby acknowledges such assignment. The
Issuer hereby directs the Trustee to cause to be listed in the Certificate
Register as the Registered Pledgee of the Transferor's 2000-A Lease SUBI
Certificate (i) until the outstanding principal balance of the Senior Notes and
the outstanding certificate balance of the Certificates are reduced to zero, the
Indenture Trustee, and (ii) thereafter, the Transferor. The Transferor has
caused the Trustee to deliver the 2000-A Lease SUBI Certificate to the Indenture
Trustee, as Registered Pledgee. Each such Registered Pledgee shall have the
rights with respect thereto described herein and in the Program Operating Lease.
ARTICLE V - MISCELLANEOUS PROVISIONS
5.1 Amendment.
(a) This Supplement (and, accordingly, the Vehicle Trust Agreement as
it relates to the 2000-A SUBIs) may be amended by the parties hereto:
(i) without the consent of the Holders; provided, that any such
action will not, in the good faith judgment of the parties hereto, materially
and adversely affect the interest of any Holder; and
(ii) from time to time (including to change the manner in which the
Reserve Fund is funded or to eliminate the Reserve Fund, or to change the
remittance schedule for depositing SUBI Collections and other amounts into the
2000-A SUBI Collection Account), provided that (1) each Rating Agency provides
confirmation to the Trustee to the effect that such amendment would not cause
its then-current rating on any Rated Securities to be qualified, reduced or
withdrawn or (2) to the extent that any such amendment materially affects the
UTI or any Other SUBI, the 2000-A SUBI Certificates or the 2000-A SUBI Assets,
such amendment shall require the consent of at least a majority of the Holders
affected thereby; in addition, to the extent that (A) such amendment shall
increase or reduce in any manner the amount of, or accelerate or delay the
timing of, collections or payments in respect of a 2000-A SUBI or a 2000-A SUBI
Certificate or distributions (or the interest or pass-through rate thereon)
required to be made on any Rated Securities or (B) reduce the percentage of the
aggregate principal amount of Rated Securities required to consent to any such
amendment, any such amendment shall require the consent of all the Holders or
holders of 100% of all outstanding Rated Securities, as the case may be, and an
Opinion of Counsel is delivered to the Trustee to the effect that after such
amendment, for federal income tax purposes, the Trust will not be treated as an
association (or a publicly traded partnership) taxable as a corporation or as a
partnership.
(b) Any amendment to this Supplement shall amend the Vehicle Trust
Agreement only insofar as such amendment relates to the 2000-A SUBIs.
5.2 Governing Law. This Supplement shall be created under and
governed by and construed under the internal laws of the State of Delaware,
without regard to any otherwise applicable principles of conflict of laws.
12
5.3 Notices. The notice provisions of Section 10.3 of the Vehicle
Trust Agreement shall apply equally to this Supplement. A copy of each notice or
other writing required to be delivered to the Trustee pursuant to the SUBI Trust
Agreement also shall be delivered to the Owner Trustee at 1100 North Market
Street, Wilmington, Delaware 19890, Attention: Corporate Trust Department
(telecopier no. (302) 651-1576; and to the Servicer at 300 Chestnut Ridge Road,
Woodcliff Lake, New Jersey 07675 (telecopier no. (201) [_________]), Attention:
General Counsel, with a copy (which shall not constitute notice) to Daniel J.
Mette, Esq., Weil, Gotshal & Manges LLP, 767 Fifth Avenue, New York, NY 10153
(telecopier no. (212) 310-8007).
5.4 Severability of Provisions. If any one or more of the covenants,
agreements, provisions or terms of this Supplement (including any amendment
hereto) shall be for any reason whatsoever held invalid, then such covenants,
agreements, provisions or terms shall be deemed severable from the remaining
covenants, agreements, provisions or terms of this Supplement, as the same may
be amended, and shall in no way affect the validity or enforceability of the
other provisions of the SUBI Trust Agreement or of any 2000-A SUBI Certificate
or the rights of the Holders or Registered Plegees thereof. To the extent
permitted by applicable law, the parties hereto waive any provision of law that
renders any covenant, agreement, provision or term of this Supplement, as the
same may be amended, invalid or unenforceable in any respect.
5.5 Effect of Supplement on Vehicle Trust Agreement.
(a) Except as otherwise specifically provided herein or unless the
context otherwise requires, (i) the parties hereto shall continue to be bound by
all provisions of the Vehicle Trust Agreement and (ii) the provisions set forth
herein shall operate either as additions to or modifications of the extant
obligations of the parties under the Vehicle Trust Agreement, as the context may
require. In the event of any conflict between this Supplement and the Vehicle
Trust Agreement in respect of the 2000-A SUBIs, the provisions of this
Supplement shall prevail.
(b) For purposes of determining the obligations of the parties hereto
under this Supplement with respect to the 2000-A SUBIs, except as otherwise
indicated by the context, general references in the Vehicle Trust Agreement to
(i) a SUBI Account shall be deemed to refer more specifically to a 2000-A SUBI
Account, (ii) a SUBI shall be deemed to refer more specifically to a 2000-A
SUBI, (iii) a SUBI Collection Account shall be deemed to refer more specifically
to the 2000-A SUBI Collection Account, (iv) a SUBI Asset shall be deemed to
refer more specifically to a 2000-A SUBI Asset, (v) a SUBI Supplement shall be
deemed to refer more specifically to this Supplement and (vi) a Servicing
Supplement shall be deemed to refer more specifically to the Servicing
Supplement.
5.6 No Petition. Each of the parties hereto and each Holder of, or
each Registered Pledgee of, by acceptance of a 2000-A SUBI Certificate, or in
the case of the Registered Pledgee, by acceptance of the pledge of such 2000-A
SUBI Certificate, covenants and agrees that prior to the date that is one year
and one day after the date upon which all obligations under each Securitized
Financing have been paid in full, it will not (and, to the fullest extent
13
permitted by applicable law, the Trustee shall not have the power to) institute
against, or join any other Person in instituting against, the Grantors, the
Trustee, the Trust, any Special Purpose Affiliate, any Beneficiary, any general
partner of a Beneficiary or of a Special Purpose Affiliate that is a partnership
or any member of a Beneficiary or Special Purpose Affiliate (or any of their
respective general partners) that is a limited liability company, any
bankruptcy, reorganization, arrangement, insolvency or liquidation Proceeding or
other Proceeding under any federal or state bankruptcy or similar law. This
Section shall survive the complete or partial termination of this Supplement,
the resignation or removal of the Trustee and the complete or partial
resignation or removal of the Servicer.
14
IN WITNESS WHEREOF, the Grantors and UTI Beneficiary, and the Trustee
have caused this Supplement to be duly executed by their respective officers as
of the day and year first above written.
BMW MANUFACTURING LP,
as Grantor and UTI Beneficiary
By: BMW FACILITY PARTNERS LLC,
as General Partner
By:
----------------------------------
Name:
Title:
By:
----------------------------------
Name:
Title:
CHASE MANHATTAN BANK USA, N.A., as Trustee
By:
------------------------------------------
Name:
Title:
15
EXHIBIT A
SCHEDULE OF 2000-A LEASES AND 2000-A VEHICLES
[Omitted. Copies on file with the Servicer, the Trustee and the Owner Trustee.]
A-1
EXHIBIT B
FORM OF 2000-A [LEASE] [VEHICLE] SUBI CERTIFICATE
FINANCIAL SERVICES VEHICLE TRUST
2000-A SPECIAL UNIT OF BENEFICIAL INTEREST CERTIFICATE
No. R-___
evidencing a fractional undivided interest in all 2000-A [Lease][Vehicle] SUBI
Assets (as defined below).
This 2000-A Special Unit of Beneficial Interest Certificate does not
represent an interest in or obligation of BMW Financial Services NA, LLC, Chase
Manhattan Bank USA, N.A. or any of their respective affiliates, except to the
extent described below.
THIS CERTIFIES THAT ________________ is the registered owner of a
nonassessable, fully-paid, undivided interest in the 2000-A SUBI [Lease]
[Vehicle] Assets owned by Financial Services Vehicle Trust (the "Trust").
The Trust was created pursuant to a trust agreement, dated as of
August 30, 1995, as amended, supplemented or restated from time to time (the
"Vehicle Trust Agreement"), among BMW Manufacturing LP ("BMW LP"), as grantor
and initial beneficiary (in such capacities, the "Grantor" and the "UTI
Beneficiary", respectively), and Chase Manhattan Bank USA, N.A., as trustee (the
"Trustee").
This certificate is one of two duly authorized 2000-A
[Lease][Vehicle] SUBI Certificates, and is issued under and is subject to the
terms, provisions and conditions of the Vehicle Trust Agreement and the
supplement thereto, dated as of November 1, 2000 (the "2000-A SUBI Supplement"
and, together with the Vehicle Trust Agreement, the "SUBI Trust Agreement"). To
the extent not otherwise defined herein, capitalized terms used herein have the
meanings assigned thereto in the SUBI Trust Agreement. By acceptance of this
2000-A [Lease] [Vehicle] SUBI Certificate, the Holder hereof assents to the
terms and conditions of the SUBI Trust Agreement and agrees to be bound thereby.
A summary of certain of the pertinent provisions of the SUBI Trust Agreement is
set forth below.
The assets of the Trust allocated to the 2000-A [Lease] [Vehicle]
SUBI will generally consist of (i) cash capital and [(ii) the 2000-A Leases]
[(ii) the 2000-A Vehicles] and all of Ryder's rights thereunder, including the
right to proceeds arising therefrom or in connection therewith.
Under the Vehicle Trust Agreement, from time to time the UTI
Beneficiary may direct the Trustee to issue to or upon the order of the UTI
Beneficiary one or more certificates (each, a " SUBI Certificate") representing
a beneficial interest in certain specified Vehicles, Leases and related Trust
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Assets (such assets, the "SUBI Assets"). Upon the issuance of the SUBI
Certificates relating to the SUBI Assets, the beneficial interest in the Trust
and the Trust Assets represented by the UTI shall be reduced by the amount of
the Trust Assets represented by such SUBI Certificates. This certificate,
together with a certificate evidencing an interest in all 2000-A [Lease]
[Vehicle] SUBI Assets, was issued pursuant to the 2000-A SUBI Supplement and
represents a beneficial interest in the 2000-A [Lease] [Vehicle] SUBI Assets.
The UTI and the 2000-A [Lease] [Vehicle] SUBI shall each constitute a
separate series of the Trust pursuant to Section 3806(b)(2) of the Delaware Act
for which separate and distinct records shall be maintained. Each 2000-A [Lease]
[Vehicle] SUBI Certificate and the interest in the 2000-A [Lease] [Vehicle] SUBI
represented thereby constitutes a "security" within the meaning of Section
8-102(a)(15) of the UCC and a "certificated security" within the meaning of
Section 8-102(a)(4) of the UCC.
The 2000-A SUBI Supplement may be amended by the parties thereto upon
the terms and subject to the conditions set forth in the 2000-A SUBI Supplement.
The Holder, by acceptance of this 2000-A [Lease] [Vehicle] SUBI
Certificate, covenants and agrees that prior to the date that is one year and
one day after the date upon which all obligations under each Securitized
Financing have been paid in full, it will not institute against, or join any
other Person in instituting against any Grantor, the Trustee, the Trust, any
Beneficiary, any general partner of a Beneficiary or of a Special Purpose
Affiliate that is a partnership or any member of a Beneficiary or Special
Purpose Affiliate (or any of their respective general partners) that is a
limited liability company, any bankruptcy, reorganization, arrangement,
insolvency or liquidation Proceeding or other Proceedings under any federal or
state bankruptcy or similar law. Such covenant shall survive the termination of
the SUBI Trust Agreement, the resignation or removal of the Trustee under the
SUBI Trust Agreement or the complete or partial resignation of the Servicer.
The Holder hereof or owner of a beneficial interest herein hereby (i)
expressly waives any claim it may have to any proceeds or assets of the Trustee
and to all of the Trust Assets other than those from time to time included
within the 2000-A [Lease] [Vehicle] SUBI as 2000-A [Lease] [Vehicle] SUBI Assets
and those proceeds or assets derived from or earned by such 2000-A [Lease]
[Vehicle] SUBI Assets and (ii) expressly subordinates in favor of the Holder of
any Other SUBI Certificate or a UTI Certificate any claim to any Other SUBI or
UTI Assets that, notwithstanding the waiver contained in clause (i), may be
determined to exist.
The Trustee shall keep the certificate register with respect to this
2000-A [Lease] [Vehicle] SUBI Certificate, and the Holder of this 2000-A [Lease]
[Vehicle] SUBI Certificate shall notify the Trustee of any change of address or
instructions on the distribution of funds.
Upon the dissolution of the Trust with respect to the 2000-A [Lease]
[Vehicle] SUBI, the 2000-A [Lease] [Vehicle] SUBI shall be terminated and the
2000-A [Lease] [Vehicle] SUBI Certificates shall be returned to the Trustee for
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cancellation. Such a termination shall not effect a termination of the Trust or
of any Other SUBIs that is in existence at the time of such termination.
The Trust or the UTI may terminate upon the terms and subject to the
conditions set forth in the SUBI Trust Agreement.
No SUBI or SUBI Certificate shall be transferred or assigned except
to the extent specified in the SUBI Trust Agreement or in any related Supplement
and, to the fullest extent permitted by applicable law, any such purported
transfer or assignment other than as so specified shall be deemed null, void and
of no effect under the SUBI Trust Agreement. Notwithstanding the foregoing, any
SUBI Certificate and the interest in the SUBI evidenced thereby may be (i)
transferred, assigned or pledged to any Special Purpose Affiliate or (ii)
transferred, assigned or pledged by the Related Beneficiary or a Special Purpose
Affiliate to or in favor of (A) a trustee for one or more trusts or (B) one or
more other entities, in either case solely for the purpose of securing or
otherwise facilitating one or more Securitized Financings.
This 2000-A [Lease] [Vehicle] SUBI Certificate shall be governed by
and construed under the internal laws of the State of Delaware, without regard
to any otherwise applicable principles of conflict of laws.
Unless this 2000-A [Lease] [Vehicle] SUBI Certificate shall have been
executed by an authorized officer of the Trustee, by manual signature, this
2000-A [Lease] [Vehicle] SUBI Certificate shall not entitle the holder hereof to
any benefit under the SUBI Trust Agreement or be valid for any purpose.
B-3
IN WITNESS WHEREOF, Chase Manhattan Bank USA, N.A., as Trustee of the
Trust and not in its individual capacity, has caused this 2000-A [Lease]
[Vehicle] SUBI Certificate to be duly executed.
Dated: __________, 2000
FINANCIAL SERVICES VEHICLE TRUST
By: CHASE MANHATTAN BANK USA, N.A., as Trustee
By:
------------------------------------------
Name:
Title:
(SEAL)
ATTEST:
- ---------------------------------
This is one of the 2000-A [Lease] [Vehicle] SUBI Certificates referred to in the
within-mentioned Supplement.
CHASE MANHATTAN BANK USA,
N.A., as Trustee
By:
---------------------------------------
Authorized Officer
B-4
FOR VALUE RECEIVED, the undersigned hereby sells, transfers and
assigns unto ______________ the within 2000-A [Lease] [Vehicle] SUBI
Certificate, and all rights thereunder, hereby irrevocably constituting and
appointing _____________ as attorney to transfer said 2000-A [Lease] [Vehicle]
SUBI Certificate on the books of the certificate registrar, with full power of
substitution in the premises.
Dated: _____________________
By:
--------------------------------------
Name:
Title:
B-5