EXHIBIT 10.7
BMW AUTO LEASING LLC
as Transferor,
and
WILMINGTON TRUST COMPANY,
as Owner Trustee
---------------------------------------------------------------------------
AMENDED AND RESTATED TRUST
AGREEMENT
Dated as of November 1, 2000
---------------------------------------------------------------------------
================================================================================
TABLE OF CONTENTS
Page
----
Article One
DEFINITIONS
Section 1.01. Capitalized Terms.................................. 1
Section 1.02. Interpretive Provisions............................ 8
Article Two
ORGANIZATION
Section 2.01. Name and Status................................... 8
Section 2.02. Office............................................ 9
Section 2.03. Purposes and Powers............................... 9
Section 2.04. Appointment of Owner Trustee...................... 10
Section 2.05. Initial Capital Contribution of Owner Trust Estate 10
Section 2.06. Declaration of Trust.............................. 10
Section 2.07. Liability of the Transferor....................... 10
Section 2.08. Title to Trust Property........................... 11
Section 2.09. Situs of Issuer................................... 11
Section 2.10. Representations and Warranties of the Transferor.. 11
Article Three
TRUST CERTIFICATES, SUBORDINATED NOTES
AND TRANSFER OF INTERESTS
Section 3.01. Initial Ownership................................. 13
Section 3.02. The Trust Certificates and the Subordinated Notes. 13
Section 3.03. Authentication and Delivery of Trust Certificates
and Subordinated Notes............................ 14
Section 3.04. Registration of Transfer and Exchange............. 15
Section 3.05. Mutilated, Destroyed, Lost or Stolen Trust
Certificates or Subordinated Notes................ 18
Section 3.06. Persons Deemed Trust Certificateholders or
Subordinated Noteholder........................... 19
Section 3.07. Access to List of Trust Certificateholders' Names
and Addresses..................................... 19
Section 3.08. Maintenance of Office or Agency................... 19
Section 3.09. Appointment of Paying Agent....................... 20
Section 3.10. Ownership of Transferor Trust Certificate and
Subordinated Notes................................ 20
Section 3.11. Trust Certificates held by Issuer, Transferor or
their Affiliates.................................. 21
i
TABLE OF CONTENTS
(continued)
Page
----
Article Four
ACTIONS BY OWNER TRUSTEE
Section 4.01. Prior Notice to Trust Certificateholders with
Respect to Certain Matters........................ 21
Section 4.02. Action by Trust Certificateholders with Respect to
Certain Matters................................... 22
Section 4.03. Action by Owner Trustee with Respect to
Bankruptcy........................................ 22
Section 4.04. Restrictions on Trust Certificateholders' Power... 22
Section 4.05. Majority Control.................................. 22
Article Five
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
Section 5.01. Establishment of Certificate Distribution Account
and Reserve Fund.................................. 23
Section 5.02. Application of Trust Funds........................ 24
Section 5.03. Method of Payment................................. 27
Section 5.04. Accounting and Reports............................ 27
Article Six
AUTHORITY AND DUTIES OF OWNER TRUSTEE
Section 6.01. General Authority................................. 28
Section 6.02. General Duties.................................... 28
Section 6.03. Action Upon Instruction........................... 28
Section 6.04. No Duties Except as Specified..................... 30
Section 6.05. No Action Unless Specifically Authorized.......... 30
Section 6.06. Restrictions...................................... 30
Article Seven
CONCERNING THE OWNER TRUSTEE
Section 7.01. Acceptance of Trusts and Duties................... 31
Section 7.02. Furnishing of Documents........................... 32
Section 7.03. Representations and Warranties.................... 32
Section 7.04. Reliance; Advice of Counsel....................... 33
Section 7.05. Not Acting in Individual Capacity................. 34
Section 7.06. Owner Trustee Not Liable for Trust Certificates or
Subordinated Notes................................ 34
Section 7.07. Owner Trustee May Own Trust Certificates and
Notes............................................. 34
ii
TABLE OF CONTENTS
(continued)
Page
----
Article Eight
COMPENSATION OF OWNER TRUSTEE
Section 8.01. Owner Trustee's Compensation and Indemnification... 35
Article Nine
TERMINATION OF TRUST AGREEMENT
Section 9.01. Termination of Trust Agreement..................... 35
Section 9.02. Purchase of the 2000-A Vehicle SUBI Certificate;
Redemption of the Subordinated Notes; Repayment of
the Trust Certificates............................. 37
Article Ten
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
Section 10.01. Eligibility Requirements for Owner Trustee......... 39
Section 10.02. Resignation or Removal of Owner Trustee............ 39
Section 10.03. Successor Owner Trustee............................ 40
Section 10.04. Merger or Consolidation of Owner Trustee........... 40
Section 10.05. Appointment of Co-Trustee or Separate Trustee...... 40
Article Eleven
TAX MATTERS
Section 11.01. Tax and Accounting Characterization................ 42
Section 11.02. Signature on Returns; Tax Matters Partner.......... 42
Section 11.03. Tax Reporting...................................... 43
Article Twelve
MISCELLANEOUS
Section 12.01. Amendments......................................... 43
Section 12.02. No Legal Title to Owner Trust Estate............... 45
Section 12.03. Limitations on Rights of Others.................... 45
Section 12.04. Notices............................................ 45
Section 12.05. Severability....................................... 46
Section 12.06. Counterparts....................................... 46
Section 12.07. Successors and Assigns............................. 46
Section 12.08. No Petition........................................ 46
Section 12.09. No Recourse........................................ 46
Section 12.10. Headings........................................... 47
Section 12.11. Governing Law...................................... 47
Section 12.12. Certificates Nonassessable and Fully Paid.......... 47
iii
TABLE OF CONTENTS
(continued)
Page
----
EXHIBITS
Exhibit A - Form of Trust Certificate........................... A-1
Exhibit B - Form of Subordinated Note........................... B-1
Exhibit C - Form of Rule 144A Certificate....................... C-1
Exhibit D - Form of Investment Letter........................... D-1
iv
AMENDED AND RESTATED TRUST AGREEMENT
This Amended and Restated Trust Agreement, dated as of November 1, 2000, is
between BMW Auto Leasing LLC, a Delaware limited liability company, as
transferor (the "Transferor"), and Wilmington Trust Company, a Delaware banking
corporation, as trustee (the "Owner Trustee").
WHEREAS, the parties hereto entered into that certain initial trust
agreement dated as of August 3, 2000 (the "Initial Trust Agreement") pursuant to
which the BMW Vehicle Lease Trust 2000-A was created; and
WHEREAS, the parties hereto are entering into this Agreement pursuant to
which, among other things, the Initial Trust Agreement will be amended and
restated and $[ ] aggregate principal amount of [ ]% Asset Backed
Certificates and $[ ] aggregate principal amount of [ ]% Asset Backed
Subordinated Notes will be issued.
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:
Article One
DEFINITIONS
Section 1.01. Capitalized Terms. Capitalized terms used herein that are not
-----------------
otherwise defined shall have the meanings ascribed thereto in the SUBI Trust
Agreement, the Servicing Agreement or the Indenture, as the case may be.
Whenever used herein, unless the context otherwise requires, the following words
and phrases shall have the following meanings:
"Administrator" means BMW FS, as Administrator under the Issuer
-------------
Administration Agreement, and its successors in such capacity.
"Agreement" means this Amended and Restated Trust Agreement, as the same
---------
may be amended or supplemented from time to time.
"Authenticating Agent" means any Person authorized by the Owner Trustee to
--------------------
act on behalf of the Owner Trustee to authenticate and deliver the Trust
Certificates and the Subordinated Notes.
"Basic Servicing Agreement" means that certain servicing agreement, dated
-------------------------
as of August 30, 1995, among BMW Manufacturing LP as UTI Beneficiary, the
Vehicle Trust and BMW FS as servicer.
"Benefit Plan" means (i) an employee benefit plan, as defined in Section
------------
3(3) of ERISA, that is subject to Title I of ERISA, (ii) a plan described in
Section 4975(e)(1) of the Code, (iii) a governmental plan, as defined in Section
3(32) of ERISA, subject to any
federal, state or local law which is, to a material extent, similar to the
provisions of Section 406 of ERISA or Section 4975 of the Code, (iv) an entity
whose underlying assets include plan assets by reason of a plan's investment in
the entity (within the meaning of Department of Labor Regulation 29 C.F.R.
Section 2510.3-101) or (v) a person investing "plan assets" of any such plan
(including, for purposes of this clause, any insurance company general account
but excluding any entity registered under the Investment Company Act).
"Business Trust Statute" means Chapter 38 of Title 12 of the Delaware Code,
----------------------
12 Del. C. (S)3801 et seq., as the same may be amended from time to time.
"Certificate Balance" means, as of any date, the aggregate principal amount
-------------------
of the Trust Certificates as of such date.
"Certificate Distribution Account" means the account established pursuant
--------------------------------
to Section 5.01(a).
"Certificate Factor" means, with respect to the Trust Certificates on any
------------------
Payment Date, the seven digit decimal equivalent of a fraction the numerator of
which is the Certificate Balance on such Payment Date (after giving effect to
any payment of principal on such Payment Date) and the denominator of which is
the Certificate Balance on the Closing Date.
"Certificate Rate" means [ ]% per annum (computed on the basis of a 360-
----------------
day year of twelve 30-day months).
"Certificate Register" and "Certificate Registrar" means the register
--------------------
mentioned in and the registrar appointed pursuant to Section 3.04.
"Certificate of Trust" means the Certificate of Trust filed for the Issuer
--------------------
pursuant to Section 3810(a) of the Business Trust Statute.
"Control Agreement" means that certain control agreement, dated as of
-----------------
November 1, 2000, among the Transferor, the Issuer, the Indenture Trustee and
The Chase Manhattan Bank, as securities intermediary, as amended and
supplemented from time to time.
"Distribution Account" means either the Note Distribution Account or the
--------------------
Certificate Distribution Account, as the context may require.
"Distribution Statement" has the meaning set forth in Section 5.02(c).
----------------------
"Expenses" means all liabilities, obligations, losses, damages, taxes,
--------
claims, actions and suits, and any and all reasonable costs, expenses and
disbursements (including reasonable legal fees and expenses) of any kind and
nature whatsoever.
"Fiscal Year" means the taxable year of the Issuer which shall be the
-----------
fiscal year of the Subordinate Noteholder unless otherwise required by Section
706(b) of the Code.
2
"Indemnified Parties" has the meaning set forth in Section 8.01(a).
-------------------
"Indenture" means that certain indenture, dated as of November 1, 2000,
---------
between the Issuer and U.S. Bank National Association, as Indenture Trustee, as
amended or supplemented from time to time.
"Initial Deposit" means the Transferor's deposit to the reserve fund, on or
---------------
before the Closing Date, of $[ ].
"Initial Purchaser" means Salomon Smith Barney Inc., as initial purchaser
-----------------
pursuant to the Purchase Agreement.
"Initial Securities Balance" means the initial principal amount of the
--------------------------
Securities.
"Initial Subordinated Note Balance" means [ ].
---------------------------------
"Interest" means, as of any date, the ownership interest of a Trust
--------
Certificateholder (including the Transferor as holder of the Transferor Trust
Certificate) in the Issuer as of such date, including the right of such Trust
Certificateholder to any and all benefits to which such Trust Certificateholder
may be entitled as provided in this Agreement, together with the obligations of
such Trust Certificateholder to comply with all the terms and provisions of this
Agreement.
"Investment Company Act" means the Investment Company Act of 1940, as
----------------------
amended.
"Issuer" means the BMW Vehicle Lease Trust 2000-A, and its successors.
------
"Issuer Administration Agreement" means that certain issuer administration
-------------------------------
agreement, dated as of November 1, 2000, among the Issuer, the Indenture
Trustee, the Transferor and the Administrator, as amended or supplemented from
time to time.
"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.
"Majority Interest" means, with respect to the Senior Notes, the holders of
-----------------
a majority of the outstanding principal amount of the Senior Notes, as one
class.
"Note" means either a Senior Note or a Subordinated Note, as the context
----
may require.
"Noteholder" means a Senior Noteholder or the Subordinated Noteholder, as
----------
the context may require.
"Offered Securities" means the Senior Notes and the Trust Certificates
------------------
(other than the Transferor Trust Certificate).
3
"Offering Circular" means the Offering Circular, dated October [ ], 2000,
-----------------
relating to the offering of the Trust Certificates, as amended or supplemented
from time to time.
"Opinion of Counsel" means one or more written opinions of counsel who may,
------------------
except as otherwise expressly provided in this Agreement, be employees of or
counsel to the Transferor, the Administrator or any of their respective
Affiliates, and who shall be satisfactory to the Owner Trustee and which opinion
or opinions shall be addressed to the Owner Trustee and be form and substance
satisfactory to the Owner Trustee. Opinions of Counsel need to address matters
of law only, and may be based upon stated assumptions as to relevant matters of
fact.
"Optional Purchase" has the meaning set forth in Section 9.03(a).
-----------------
"Optional Purchase Price" has the meaning set forth in Section 9.03(a).
-----------------------
"Outstanding" means, with respect to the Subordinated Notes and the
-----------
Certificates, as of any date, all Subordinated Notes and Certificates
theretofore authenticated and delivered under this Agreement except (a)
Subordinated Notes or Certificates theretofore canceled or delivered for
cancellation pursuant to this Agreement; (b) Subordinated Notes or Certificates
or portions thereof for whose payment or redemption cash in the necessary amount
has been theretofore irrevocably deposited with the Owner Trustee or any Paying
Agent in trust for the holders of such Subordinated Notes or Certificates; and
(c) Subordinated Notes or Certificates in exchange for or in lieu of which other
Subordinated Notes or Certificates have been authenticated and delivered
pursuant to this Agreement unless proof satisfactory to the Owner Trustee is
presented that any such Subordinated Notes or Certificates are held by a bona
fide Protected Purchaser.
"Outstanding Amount" means, as of any date, the aggregate principal amount
------------------
of all Subordinated Notes and all Certificates Outstanding as of such date.
"Owner Corporate Trust Office" means the principal office of the Owner
----------------------------
Trustee at which at any particular time its corporate trust business shall be
administered, which office at the date of the execution of this Agreement is
located at 1100 North Market Street, Wilmington, Delaware 19890; or at such
other address as the Owner Trustee may designate from time to time by notice to
the Trust Certificateholders and the Indenture Trustee, or the principal
corporate trust office of any successor Owner Trustee (the address of which the
successor Owner Trustee shall notify the Trust Certificateholders and the
Indenture Trustee).
"Owner Trust Estate" means the property of the Issuer, consisting of (i)
------------------
the 2000-A Vehicle SUBI Certificate (transferred pursuant to the Issuer SUBI
Certificate Transfer Agreement), evidencing a beneficial interest in the assets
allocated to the 2000-A Vehicle SUBI, including the right to payments thereunder
from certain Sales Proceeds on deposit in the SUBI Collection Account and the
Residual Value Surplus Account and investment earnings, net of losses and
investment expenses, on amounts on deposit in the SUBI Collection Account and
the Residual Value Surplus Account; (ii) the rights of the Issuer
4
under the Program Operating Lease; (iii) the rights of the Issuer as secured
party under the Back-up Security Agreement; (iv) the rights of the Issuer as
pledgee of the 2000-A Lease SUBI Certificate; (v) the rights of the Issuer to
the funds on deposit from time to time in the Note Distribution Account and any
other account or accounts established pursuant to the Indenture and all cash,
investment property and other property from time to time deposited or credited
thereto; (vi) the rights of the Transferor, as transferee, under the SUBI
Certificate Transfer Agreement; (viii) the rights of the Issuer, as transferee,
under the Issuer SUBI Certificate Transfer Agreement; (viii) the security
interest of the Issuer in the Subordinated Notes and the Reserve Fund (including
investment earnings, net of losses and investment expenses, on amounts on
deposit therein); and (ix) all proceeds of the foregoing.
"Paying Agent" means any paying agent or co-paying agent appointed pursuant
------------
to Section 3.09, and shall initially be The Chase Manhattan Bank.
"Program Operating Lease" means that certain program operating lease, dated
-----------------------
as of November 1, 2000, between the Issuer and the Transferor, as amended or
supplemented from time to time.
"Purchase Agreement" means that certain purchase agreement, dated November
------------------
1, 2000, between the Initial Purchaser and the Transferor.
"Qualified Institutional Buyer" has the meaning ascribed thereto in Rule
-----------------------------
144A.
"Record Date" means, with respect to any Payment Date, the close of
-----------
business on the Business Day immediately preceding such Payment Date.
"Repayment Price" means an amount equal to the unpaid principal amount of
---------------
the Trust Certificates plus accrued and unpaid interest thereon at the
Certificate Rate to but excluding the related Payment Date.
"Reserve Fund" means the account established pursuant to Section 5.01(b).
------------
"Reserve Fund Property" means the Reserve Fund and all cash, investment
---------------------
property and other property from time to time deposited or credited to the
Reserve Fund and all proceeds thereof, including without limitation the Initial
Deposit and all payments of interest on and principal of the Subordinated Notes.
"Reserve Fund Requirement" has the meaning set forth in the Indenture.
------------------------
"Rule 144A" means Rule 144A under the Securities Act.
---------
"Rule 144A Information" means information requested of the Transferor, in
---------------------
connection with the proposed transfer of a Trust Certificate, to satisfy the
requirements of paragraph (d)(4) of Rule 144A.
"Secretary of State" means the Secretary of State of the State of Delaware.
------------------
5
"Secured Obligations" has the meaning set forth in Section 5.02(f).
-------------------
"Securities Act" means the Securities Act of 1933, as amended.
--------------
"Securities Balance" means, as of any date, the unpaid principal amount of
------------------
the Securities as of such date.
"Security" means either a Note or a Trust Certificate, as the context may
--------
require.
"Securityholder" means each registered holder of a Security.
--------------
"Senior Note Outstanding Amount" has the meaning ascribed to the term
------------------------------
"Outstanding Amount" in the Indenture.
"Servicing Agreement" means the Basic Servicing Agreement as supplemented
-------------------
by that certain supplement, dated as of November 1, 2000, among the parties to
the Basic Servicing Agreement, as amended or supplemented from time to time.
"SUBI Trust Agreement" means the Vehicle Trust Agreement as supplemented by
--------------------
that certain supplement, dated as of November 1, 2000, among the parties to the
Vehicle Trust Agreement, as amended or supplemented from time to time.
"Subordinated Note Balance" means the Initial Subordinated Note Balance,
-------------------------
reduced by all payments of principal made on or prior to the Payment Date,
whether paid to the Subordinated Noteholder or deposited in the Reserve Fund.
"Subordinated Note Factor" means, with respect to the Subordinated Notes on
------------------------
any Payment Date, the seven digit decimal equivalent of a fraction the numerator
of which is the Outstanding Amount on such Payment Date (after giving effect to
any payment of principal on such Payment Date) and the denominator of which is
the Outstanding Amount of the Subordinated Notes on the Closing Date.
"Subordinated Note Rate" means [ ]% per annum (computed on the basis of a
----------------------
360-day year of twelve 30-day months).
"Subordinated Note Redemption Price" means an amount equal to the unpaid
----------------------------------
principal amount of the Subordinated Notes redeemed plus accrued and unpaid
interest thereon at the Subordinated Note Rate to but excluding the related
Payment Date.
"Subordinated Noteholder" means the Transferor, as registered holder of the
-----------------------
Subordinated Notes.
"Subordinated Notes" means the [ ]% Subordinated Notes issued pursuant to
------------------
this Agreement, substantially in the form of Exhibit B.
"Transferor" means initially, BMW Auto Leasing LLC.
----------
6
"Transferor Trust Certificate" means the Trust Certificate issued to the
----------------------------
Transferor representing at least 1% of the Certificate Balance.
"Treasury Regulations" means regulations, including proposed or temporary
--------------------
regulations, promulgated under the Code. References herein to specific
provisions of proposed or temporary regulations shall include analogous
provisions of final Treasury Regulations or other successor Treasury
Regulations.
"Trust Certificateholder" means the Person in whose name a Trust
-----------------------
Certificate is registered on the Certificate Register.
"Trust Certificates" means the [ ]% Asset Backed Certificates issued
------------------
pursuant to this Agreement, substantially in the form of Exhibit A.
"Vehicle Trust" means Financial Services Vehicle Trust.
-------------
"Vehicle Trust Agreement" means that certain amended and restated trust
-----------------------
agreement, dated as of September 27, 1996, as further amended as of May 25, 2000
between BMW Manufacturing LP, as Grantor and UTI Beneficiary, and Chase
Manhattan Bank USA, N.A., as trustee.
"Vehicle Trustee" means Chase Manhattan Bank Delaware, Inc. (predecessor in
---------------
interest to Chase Manhattan Bank USA, N.A.), in its capacity as trustee of the
Vehicle Trust, or any successor thereto in such capacity.
Section 1.02. Interpretive Provisions.
-----------------------
(a) For all purposes of this Agreement, 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 words such as "herein", "hereof" and the like shall refer to
this Agreement as a whole and not to any particular part, article or section
within this Agreement, (iii) references to a section such as "Section 1.01" and
the like shall refer to the applicable section of this Agreement and (iv) the
term "include" and all variations thereof shall mean "include without
limitation".
(b) As used in this Agreement and in any certificate or other document
made or delivered pursuant hereto, accounting terms not defined in this
Agreement or in any such certificate or other document, and accounting terms
partly defined in this Agreement or in any such certificate or other document to
the extent not defined, shall have the respective meanings given to them under
generally accepted accounting principles. To the extent that the definitions of
accounting terms in this Agreement or in any such certificate or other document
are inconsistent with the meanings of such terms under generally accepted
accounting principles, the definitions contained in this Agreement or in any
such certificate or other document shall control.
7
Article Two
ORGANIZATION
Section 2.01. Name and Status. The trust created hereby shall be known as
---------------
"BMW Vehicle Lease Trust 2000-A", in which name the Issuer may engage in
activities as permitted by the Basic Documents, make and execute contracts and
other instruments and sue and be sued, to the extent provided herein. It is the
intention of the parties hereto that the Issuer shall be a business trust under
the Business Trust Statute, and that this Agreement shall constitute the
governing instrument of that business trust.
Section 2.02. Office. The chief executive office and principal place of
------
business of the Issuer shall be in care of the Owner Trustee, initially at the
Owner Corporate Trust Office and thereafter at such other address as the Owner
Trustee may designate by written notice to the Trust Certificateholders and the
Transferor.
Section 2.03. Purposes and Powers.
-------------------
(a) The purposes of the Issuer are: (i) at the direction of the Trust
Certificateholders, to take assignments and conveyances of certain assets from
time to time, to hold such assets in trust and to collect and disburse the
periodic income therefrom for the benefit of the Trust Certificateholders, (ii)
to engage in any of the other activities described or authorized in this
Agreement, any supplement or any amendment hereto or thereto and (iii) to engage
in any and all activities that are necessary or appropriate to accomplish the
foregoing or that are incidental thereto or connected therewith. The Trust shall
not be employed for any purpose except as duly authorized in accordance with the
provisions of this Agreement.
(b) The initial sole purpose of the Issuer is to conserve the Owner Trust
Estate and collect and disburse the periodic income therefrom for the use and
benefit of the Trust Certificateholders, and in furtherance of such purpose to
engage in the following ministerial activities:
(i) to issue the Senior Notes pursuant to the Indenture, the
Subordinated Notes and the Trust Certificates pursuant to this Agreement,
and to sell the Senior Notes and the Trust Certificates (other than the
Transferred Certificate) upon the written order of the Transferor;
(ii) to acquire the 2000-A Vehicle SUBI Certificate from the
Transferor and the other property of the Owner Trust Estate, using the
proceeds from the sale of the Offered Securities to third party investors
and from the issuance of the Subordinated Notes and the Transferor Trust
Certificate to the Transferor;
(iii) subject to the Lien of the Indenture, to lease the 2000-A
Vehicle SUBI Certificate to the Transferor pursuant to the Program
Operating Lease and as security therefor to obtain the pledge of the 2000-A
Lease SUBI Certificate from the Transferor;
8
(iv) to pay interest on and principal of the Securities;
(v) to assign, grant, transfer, pledge mortgage and convey the
Owner Trust Estate pursuant to the Indenture to the Indenture Trustee as
security for the Senior Notes and to hold, manage and distribute to the
Subordinated Noteholder and the Trust Certificateholders pursuant to the
terms of this Agreement any portion of the Owner Trust Estate released from
the Lien of, and remitted to the Issuer pursuant to, the Indenture;
(vi) to enter into and perform its obligations under the Basic
Documents to which the Issuer is a party;
(vii) to engage in other transactions, including entering into
agreements, that are necessary, suitable or convenient to accomplish the
foregoing or that are incidental thereto or connected therewith; and
(viii) subject to compliance with the Basic Documents, to engage in
such other activities as may be required in connection with conservation of
the Owner Trust Estate and the making of distributions to the Trust
Certificateholders and the Noteholders.
(c) The Issuer shall not engage in any activity other than in connection
with the foregoing or other than as required or authorized by the terms of this
Agreement or the other Basic Documents.
Section 2.04. Appointment of Owner Trustee. The Transferor hereby
----------------------------
appoints the Owner Trustee as trustee of the Issuer effective as of the date
hereof, to have all the rights, powers and duties set forth herein, and the
Owner Trustee hereby accepts such appointment.
Section 2.05. Initial Capital Contribution of Owner Trust Estate. The
--------------------------------------------------
Transferor hereby sells, assigns, transfers, conveys and sets over to the Owner
Trustee, as of the date hereof, the sum of $1.00. The Owner Trustee hereby
acknowledges receipt in trust from the Transferor, as of the date hereof, of the
foregoing contribution, which shall constitute the initial Owner Trust Estate
and shall be deposited in the Certificate Distribution Account. The Transferor
shall pay organizational expenses of the Issuer as they may arise or shall, upon
the request of the Owner Trustee, promptly reimburse the Owner Trustee for any
such expenses paid by the Owner Trustee.
Section 2.06. Declaration of Trust. The Owner Trustee hereby declares
--------------------
that it will hold the Owner Trust Estate in trust upon and subject to the
conditions set forth herein for the sole purpose of conserving the Owner Trust
Estate and collecting and disbursing the periodic income therefrom for the use
and benefit of the Trust Certificateholders, who are intended to be "beneficial
owners" within the meaning of the Business Trust Statute, subject to the Lien of
the Indenture Trustee and the obligations of the Issuer under the Basic
Documents. Effective as of the date hereof, the Owner Trustee shall have all
rights, powers and duties set forth herein and under Delaware law
9
for the sole purpose and to the extent necessary to accomplish the purpose of
the Issuer as set forth in Section 2.03(a) and 2.03(b).
Section 2.07. Liability of the Transferor.
---------------------------
The Transferor or any subsequent transferee, as holder of the Transferor
Trust Certificate and the Subordinated Notes, shall defend, indemnify and hold
harmless the Issuer, the Owner Trustee and each Paying Agent from and against
any and all taxes that may at any time be asserted against the Issuer or the
Owner Trustee with respect to the transactions contemplated herein, including
any sales, use, gross receipts, general corporation, tangible personal property,
privilege, license or income taxes, taxes on or measured by income or any state
or local taxes assessed on the Issuer, the Owner Trustee or any Paying Agent
resulting from the location of assets of the Issuer or the presence of the Owner
Trustee or any Paying Agent and costs and Expenses in defending against the
same; provided, however, that the foregoing indemnity shall not include income
taxes on any fees payable to, or Expenses reimbursed to, the Owner Trustee or
any Paying Agent.
Section 2.08. Title to Trust Property. Legal title to the Owner Trust
-----------------------
Estate shall be vested at all times in the Issuer as a separate legal entity,
except where applicable law in any jurisdiction requires title to any part of
the Owner Trust Estate to be vested in a trustee, in which case title shall be
deemed to be vested in the Owner Trustee, a co-trustee or a separate trustee, as
the case may be.
Section 2.09. Situs of Issuer. The Issuer shall be located and
---------------
administered in the State of Delaware. The only office of the Issuer shall be at
the Owner Corporate Trust Office.
Section 2.10. Representations and Warranties of the Transferor. The
------------------------------------------------
Transferor hereby represents and warrants to the Owner Trustee that:
(a) Organization and Good Standing. The Transferor has been
------------------------------
duly organized and validly existing as a limited liability company 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 currently owned and such business is presently conducted.
(b) Due Qualification. The Transferor has been duly qualified
-----------------
to do business as a limited partnership in good standing, and has obtained
all necessary licenses and approvals in all jurisdictions in which the
conduct of its business requires such qualifications except when the
failure to have any such license, approval or qualification would not have
a material adverse effect on the condition, financial or otherwise, of the
Transferor or would not have a material adverse effect on the ability of
the Transferor to perform its obligations under this Agreement.
(c) Power and Authority. The Transferor has (i) the power and
-------------------
authority to execute and deliver this Agreement and to carry out its terms;
(ii) good title to and is the sole legal and beneficial owner of the SUBI
10
Certificates, free and clear of Liens and claims; (iii) full power and
authority to transfer the 2000-A Vehicle SUBI Certificate and pledge the
2000-A Lease SUBI Certificate to and deposit each of the same with the
Issuer; (iv) duly authorized such transfer and deposit to the Issuer by all
necessary action; and (v) duly authorized the execution, delivery and
performance of this Agreement by all necessary action.
(d) Binding Obligation. This Agreement constitutes a legal,
------------------
valid and binding obligation of the Transferor, enforceable in accordance
with its terms, except as such enforceability may be subject to or limited
by bankruptcy, insolvency, reorganization, moratorium, liquidation,
fraudulent conveyance or other similar laws affecting the enforcement of
creditors' rights in general and by general principles of equity,
regardless of whether such enforceability shall be considered in a
proceeding in equity or in law.
(e) No Violation. The consummation of the transactions
------------
contemplated by this Agreement and the fulfillment of the terms of this
Agreement do not conflict with or breach any of the terms or provisions of,
or constitute (with or without notice or lapse of time) a default under,
any material indenture, agreement or other instrument to which the
Transferor is a party or by which it shall be bound; nor result in the
creation or imposition of any material Lien upon any of its properties
pursuant to the terms of any such indenture, agreement or other instrument
(other than this Agreement); nor violate any law or, to the best of the
Transferor's knowledge, any order, rule or regulation applicable to the
Transferor of any court or of any federal or State regulatory body,
administrative agency or other governmental instrumentality having
jurisdiction over the Transferor or its properties.
(f) No Proceedings. There are no proceedings or investigations
--------------
pending, or to the Transferor's knowledge, threatened, before any court,
regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Transferor or its properties:
(i) asserting the invalidity of this Agreement or any of the other Basic
Documents; (ii) seeking to prevent the issuance of the Notes or the Trust
Certificates or the consummation of any of the transactions contemplated by
this Agreement or any of the other Basic Documents; (iii) seeking any
determination or ruling that might materially and adversely affect the
performance by the Transferor of its obligations under, or the validity or
enforceability of, this Agreement or any of the other Basic Documents; or
(iv) relating to the Transferor and that might adversely affect the federal
income tax or state income or franchise tax attributes of the Notes or the
Trust Certificates.
11
Article Three
TRUST CERTIFICATES, SUBORDINATED NOTES
AND TRANSFER OF INTERESTS
Section 3.01. Initial Ownership. Upon the formation of the Issuer by the
-----------------
contribution by the Transferor pursuant to Section 2.05 and until the issuance
of the Trust Certificates, the Transferor shall be the sole beneficiary of the
Issuer.
Section 3.02. The Trust Certificates and the Subordinated Notes.
-------------------------------------------------
(a) The Trust Certificates shall be substantially in the form set forth in
Exhibit A, in minimum denominations of $1,000,000 and integral multiples of
$1,000 in excess thereof; provided, however, that the Transferor Trust
Certificate shall be issued to the Transferor pursuant to Section 3.10(a) in
such denominations as to represent in the aggregate at least 1% of the
Certificate Balance. The Subordinated Notes shall be issued substantially in the
form set forth in Exhibit B, in minimum denominations of $1,000,000 and integral
multiples of $1,000 in excess thereof. Except for (i) the issuance of the Trust
Certificates to the Initial Purchaser and the subsequent transfer to the Trust
Certificateholders as contemplated by the Purchase Agreement, (ii) the issuance
of the Transferor Trust Certificate to the Transferor, (iii) the issuance of the
Subordinated Notes to the Transferor and (iv) the assignment and pledge of the
Subordinated Notes to the Issuer, no Trust Certificate or Subordinated Note may
be sold, pledged or otherwise transferred to any Person except in accordance
with Section 3.04 and any attempted sale, pledge or transfer in violation of
Section 3.04 shall be null and void. Each Trust Certificate (other than the
Transferor Trust Certificate) shall be issued in the name of the Initial
Purchaser; provided, however, that upon delivery to the Initial Purchaser, the
Owner Trustee and the Certificate Registrar of a letter in the form of Exhibit
D, such Trust Certificate (other than the Transferor Trust Certificate) shall be
reissued in the name and in the denomination set forth in such letter.
The Subordinated Notes shall be originally issued in the name of the
Transferor. Except as otherwise contemplated by the Basic Documents, neither
the Subordinated Notes nor any beneficial interest therein may be transferred to
any Person without the simultaneous transfer of the Transferor Trust Certificate
to such Person, and any attempted transfer thereof shall be null and void;
provided, that upon a dissolution of or termination of the holder of any
Subordinated Notes, they may be distributed the owners of such holder.
The Trust Certificates and the Subordinated Notes may be in printed or in
typewritten form, and may be executed on behalf of the Issuer by manual or
facsimile signature of an Authenticating Agent. Trust Certificates and
Subordinated Notes bearing the manual or facsimile signatures of individuals who
were, at the time when such signatures shall have been affixed, authorized to
sign on behalf of the Issuer, shall be validly issued and entitled to the
benefits of this Agreement, notwithstanding that such individuals or any of them
shall have ceased to be so authorized prior to the authentication and delivery
of such Trust Certificates or Subordinated Notes or did not
12
hold such offices at the date of authentication and delivery of such Trust
Certificates or Subordinated Notes. If registration of a transfer of a Trust
Certificate is permitted pursuant to Section 3.04, the transferee of such Trust
Certificate shall become a Trust Certificateholder, and shall be entitled to the
rights and subject to the obligations of a Trust Certificateholder hereunder,
upon due registration of such Trust Certificate in such transferee's name
pursuant to Section 3.04.
(b) Interest shall accrue during each Accrual Period on (i) the
Subordinated Notes at the Subordinated Note Rate based on the Outstanding Amount
until the principal amount of the Subordinated Notes has been paid in full and
(ii) the Trust Certificates at the Certificate Rate based on the Certificate
Balance until the principal amount of the Trust Certificates has been paid in
full. Interest accrued during each Accrual Period on the Subordinated Notes and
the Trust Certificates shall be due and payable on the related Payment Date.
Interest shall be calculated on the basis of a 360-day year consisting of twelve
30-day months. To the extent that interest on the Subordinated Notes or the
Trust Certificates is accrued but not paid in full on any Payment Date, such
overdue interest shall be due on the next Payment Date together with interest on
such amount (to the extent lawful) at the Subordinated Note Rate or the
Certificate Rate, as the case may be. Payments of interest and principal shall
be payable to the Subordinated Noteholder and the Trust Certificateholders in
accordance with Section 5.02.
Section 3.03. Authentication and Delivery of Trust Certificates and
-----------------------------------------------------
Subordinated Notes. Concurrently with the transfer of the 2000-A Vehicle SUBI
- ------------------
Certificate and the pledge of the 2000-A Lease SUBI Certificate to the Issuer,
the Owner Trustee shall cause to be executed on behalf of the Issuer (i) Trust
Certificates in an aggregate principal amount equal to $[ ]
and (ii) Subordinated Notes in an aggregate principal amount equal to $[ ],
in each case authenticated and delivered to or upon the written order of the
Transferor, in authorized denominations. No Trust Certificate or Subordinated
Note shall entitle its holder to any benefit under this Agreement, or shall be
valid for any purpose, unless there shall appear on such Security a certificate
of authentication, substantially in the form set forth in Exhibit A or Exhibit
B, as the case may be, executed by the Owner Trustee or its Authenticating
Agent, by manual signature; such authentication shall constitute conclusive
evidence that such Trust Certificate or Subordinated Note shall have been duly
authenticated and delivered hereunder. All Trust Certificates and Subordinated
Notes shall be dated the date of their authentication. Upon issuance, execution
and delivery pursuant to the terms hereof, the Subordinated Notes and the Trust
Certificates shall be entitled to the benefits of this Agreement.
Section 3.04. Registration of Transfer and Exchange.
-------------------------------------
(a) The Certificate Registrar shall cause to be kept a register (the
"Certificate Register") in which, subject to such reasonable regulations as it
may prescribe, the Certificate Registrar shall provide for the registration of
Trust Certificates and Subordinated Notes and, if and to the extent transfers
and exchanges are permitted pursuant to Section 3.04(b) (in the case of the
Trust Certificates), or the Basic Documents (in the case of the Subordinated
Notes), the registration of transfers of Trust Certificates or Subordinated
Notes. No transfer of a Trust Certificate or Subordinated Note shall be
13
recognized except upon registration of such transfer. The Chase Manhattan Bank
is hereby appointed as the initial "Certificate Registrar". Upon any resignation
of the Certificate Registrar, the Owner Trustee shall promptly appoint a
successor. The Subordinated Notes may not be transferred, except as permitted by
the Basic Documents.
(b) Each Trust Certificate (other than the Transferor Trust Certificate)
shall bear a legend regarding reoffers, resales, pledges and transfers to the
effect of the legend on the form of Trust Certificate attached as Exhibit A
hereto, unless determined otherwise by the Servicer (as certified to the
Certificate Registrar in an Officer's Certificate) consistent with applicable
law.
As a condition to the registration of any transfer of a Trust Certificate,
the prospective transferee shall be required to represent in writing to the
Owner Trustee, the Transferor and the Certificate Registrar the following:
(i) It has neither acquired nor will it transfer any Trust
Certificate it purchases (or any interest therein) or cause any such Trust
Certificates (or any interest therein) to be marketed on or through an
"established securities market" within the meaning of Section 7704(b)(1) of
the Code, including, without limitation, an over-the-counter-market or an
interdealer quotation system that regularly disseminates firm buy or sell
quotations.
(ii) It either (A) is not, and will not become, a partnership,
Subchapter S corporation or grantor trust for U.S. federal income tax
purposes or (B) is such an entity, but none of the direct or indirect
beneficial owners of any of the interests in such transferee have allowed
or caused, or will allow or cause, 50% or more (or such other percentage as
the Transferor may establish prior to the time of such proposed transfer)
of the value of such interests to be attributable to such transferee's
ownership of Trust Certificates.
(iii) It understands that no subsequent transfer of the Trust
Certificates is permitted unless (A) such transfer is of a Trust
Certificate with a denomination of at least $1,000,000, (B) it causes its
proposed transferee to provide to the Issuer, the Certificate Registrar and
the Initial Purchaser a letter substantially in the form of Exhibit D
hereto, or such other written statement as the Transferor shall prescribe
and (C) the Transferor consents in writing to the proposed transfer, which
consent shall be granted unless the Transferor determines that such
transfer would create a risk that the Issuer or the Vehicle Trust would be
classified for federal or any applicable state tax purposes as an
association (or a publicly traded partnership) taxable as a corporation;
provided, however, that any attempted transfer that would either cause (1)
the number of registered holders of Trust Certificates and Subordinated
Notes in the aggregate to exceed 100 or (2) the number of holders of direct
or indirect interests in the Vehicle Trust to exceed 50, shall be a void
transfer.
14
(iv) It understands that the Opinion of Counsel to the Issuer that
the Issuer is not a publicly traded partnership taxable as a corporation is
dependent in part on the accuracy of the representations in paragraphs (i),
(ii) and (iii) above.
(v) It is not a Benefit Plan nor will it hold the Trust
Certificates being transferred for the account of a Benefit Plan.
(vi) It is a Person who is either (A)(1) a citizen or resident of
the United States, (2) a corporation, partnership or other entity organized
in or under the laws of the United States or any political subdivision
thereof or (3) a Person not described in (A)(1) or (2) whose ownership of
the Trust Certificates is effectively connected with such Person's conduct
of a trade or business within the United States (within the meaning of the
Code) and its ownership of any interest in a Trust Certificate will not
result in any withholding obligation with respect to any payments with
respect to the Trust Certificates by any Person (other than withholding, if
any, under Section 1446 of the Code) or (B) an estate or trust the income
of which is includible in gross income for federal income tax purposes,
regardless of source or a trust if a court within the United States is able
to exercise primary supervision of the administration of the trust and one
or more U.S. Persons (as such term is defined in the Code) have the
authority to control all substantial decisions of the Issuer. It agrees
that it will provide a certification of non-foreign status signed under
penalty of perjury and, alternatively, that if it is a Person described in
clause (A)(3) above, it will furnish to the Transferor and the Owner
Trustee a properly executed IRS Form W-8ECI (or successor form) and a new
IRS Form W-8ECI (or successor form) upon the expiration or obsolescence of
any previously delivered form (and such other certifications,
representations or Opinions of Counsel as may be requested by the
Transferor and the Owner Trustee).
(vii) It understands that any purported transfer of any Trust
Certificate (or any interest therein) in contravention of any of the
restrictions and conditions in this Section shall be void, and the
purported transferee in such transfer shall not be recognized by the Issuer
or any other Person as a Trust Certificateholder for any purpose.
(viii) It understands that despite their form and their treatment for
non-tax purposes, the Certificates are intended to constitute indebtedness
for federal income tax and all state and local income and franchise tax
purposes and agrees to treat the Certificates as indebtedness for all such
purposes.
(c) By acceptance of any Trust Certificate, the related Trust
Certificateholder specifically agrees with and represents to the Transferor, the
Issuer and Certificate Registrar that no transfer of such Trust Certificate
shall be made unless the registration requirements of the Securities Act and any
applicable state securities laws are complied with, or such transfer is exempt
from the registration requirements under the Securities Act because the transfer
satisfies one of the following:
15
(i) Such transfer is in compliance with Rule 144A, to a transferee
who the transferor reasonably believes is a Qualified Institutional Buyer
that is purchasing for its own account or for the account of a Qualified
Institutional Buyer and to whom notice is given that such transfer is being
made in reliance upon Rule 144A and (A) the transferor thereof executes and
delivers to the Transferor and the Certificate Registrar, a Rule 144A
certificate substantially in the form attached as Exhibit C and (B) the
transferee executes and delivers to the Transferor and the Certificate
Registrar an investment letter substantially in the form attached as
Exhibit D.
(ii) After the appropriate holding period, such transfer is pursuant
to an exemption from registration under the Securities Act provided by Rule
144 under the Securities Act and the transferee, if requested by the
Transferor, the Certificate Registrar or the Initial Purchaser, delivers an
Opinion of Counsel in form and substance satisfactory to the Transferor and
the Initial Purchaser.
(iii) Such transfer is to an institutional accredited investor as
defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D promulgated
under the Securities Act in a transaction exempt from the registration
requirements of the Securities Act, such transfer is in accordance with any
applicable securities laws of any State or any other jurisdiction, and such
investor executes and delivers to the Issuer and the Certificate Registrar
an investment letter substantially in the form attached as Exhibit D.
(d) The Transferor shall make the Rule 144A Information available to the
prospective transferor and transferee of a Trust Certificate. The Rule
144A Information shall include any or all of the following items requested
by the prospective transferee:
(i) the Offering Circular;
(ii) each Payment Date Certificate delivered to Trust
Certificateholders on each Payment Date preceding such request; and
(iii) such other information as is reasonably available to the
Transferor in order to comply with requests for information pursuant to
Rule 144A.
None of the Transferor, the Certificate Registrar or the Owner Trustee is
under an obligation to register any Trust Certificate under the Securities Act
or any state securities laws.
(e) Upon surrender for registration of transfer or exchange of any Trust
Certificate at the office of the Certificate Registrar and upon compliance with
the provisions of this Agreement relating to such transfer or exchange, provided
that the requirements of Section 8-401(a) of the UCC are met, the Owner Trustee
shall execute and shall, or shall cause the Authenticating Agent to,
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Trust Certificates in authorized denominations of a
like aggregate face amount dated the date of such
16
authentication or the Trust Certificates that the Trust Certificateholder making
the exchange is entitled to receive, as the case may be.
The Certificate Registrar shall require that every Trust Certificate
presented or surrendered for registration of transfer or exchange shall be
accompanied by a written instrument of transfer and accompanied by IRS Form W-
8ECI (or successor form) or W-9 or such other form as may be reasonably required
in form satisfactory to the Certificate Registrar duly executed by the Trust
Certificateholder or such Person's attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Trust Certificates, but the Owner Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or
governmental charge that may be imposed in connection with any registration of
transfer or exchange of Trust Certificates.
The Certificate Registrar shall cancel and retain or destroy, in accordance
with the Certificate Registrar's retention policy then in effect, all Trust
Certificates surrendered for registration of transfer or exchange and shall upon
written request certify to the Transferor as to such retention or destruction.
(f) The provisions of this Section generally are intended, among other
things, to prevent the Issuer from being characterized as a "publicly traded
partnership" within the meaning of Section 7704 of the Code, in reliance on
Treasury Regulations Section 1.7704-1(e) and (h), and the Transferor shall take
such intent into account in determining whether or not to consent to any
proposed transfer of any Trust Certificate.
The preceding provisions of this Section notwithstanding, the Owner Trustee
shall not make and the Certificate Registrar shall not register any transfer or
exchange of Trust Certificates for a period of 15 days preceding the due date
for any payment with respect to the Trust Certificates.
Section 3.05. Mutilated, Destroyed, Lost or Stolen Trust Certificates or
----------------------------------------------------------
Subordinated Notes. If any mutilated Trust Certificate or Subordinated Note is
- ------------------
surrendered to the Certificate Registrar, or if the Certificate Registrar
receives evidence to its satisfaction of the destruction, loss or theft of any
Trust Certificate or Subordinated Note and there is delivered to the Certificate
Registrar and the Owner Trustee such security or indemnity as may be required by
them to save each of them harmless, then (and in the case of the Trust
Certificates, in the absence of notice that such Trust Certificate has been
transferred to or is in the possession of a third party purchaser), provided
that the requirements of Section 8-405 of the UCC are met, the Owner Trustee on
behalf of the Issuer shall execute and the Authenticating Agent shall
authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Trust Certificate or Subordinated Note, a new Trust
Certificate or Subordinated Note of like tenor and denomination. In connection
with the issuance of any new Trust Certificate or Subordinated Note under this
Section, the Owner Trustee or the Certificate Registrar may require the payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection therewith. Any duplicate Trust Certificate issued
17
pursuant to this Section shall constitute conclusive evidence of an ownership
interest in the Issuer, and any duplicate Subordinated Note issued pursuant to
this Section shall constitute conclusive evidence of an additional contractual
obligation of the Issuer, in each case as if originally issued, whether or not
the lost, stolen or destroyed Trust Certificate or Subordinated Note shall be
found at any time.
Section 3.06. Persons Deemed Trust Certificateholders or Subordinated
-------------------------------------------------------
Noteholder. Prior to due presentation of a Trust Certificate for registration
- ----------
of transfer, the Owner Trustee, the Certificate Registrar, any Paying Agent and
any of their respective agents may treat the Person in whose name any Trust
Certificate or Subordinated Note is registered in the Certificate Register as
the owner of such Trust Certificate or Subordinated Note for the purpose of
receiving distributions pursuant to Section 5.02 and for all other purposes
whatsoever, and none of the Owner Trustee, the Certificate Registrar, any Paying
Agent or any of their respective agents shall be affected by any notice to the
contrary.
Section 3.07. Access to List of Trust Certificateholders' Names and
-----------------------------------------------------
Addresses. The Owner Trustee shall furnish or cause to be furnished to the
- ---------
Servicer and the Transferor, or to the Indenture Trustee, as the case may be,
within 15 days after receipt by the Owner Trustee of a request therefor from the
Servicer, the Transferor or the Indenture Trustee in writing, a list, in such
form as the requesting party may reasonably request, of the names and addresses
of the Trust Certificateholders as of the most recent Record Date. If (i) two or
more Trust Certificateholders or (ii) one or more Trust Certificateholders
evidencing not less than 25% of the Certificate Balance apply in writing to the
Owner Trustee, and such application states that the applicants desire to
communicate with other Trust Certificateholders with respect to their rights
under this Agreement or under the Trust Certificates and such application is
accompanied by a copy of the communication that such applicants propose to
transmit, then the Owner Trustee shall, within five Business Days after the
receipt of such application, afford such applicants access during normal
business hours to the current list of Trust Certificateholders. Each Trust
Certificateholder, by receiving and holding a Trust Certificate, shall be deemed
to have agreed not to hold either the Transferor, the Owner Trustee or the
Indenture Trustee, as the case may be, accountable by reason of the disclosure
of its name and address, regardless of the source from which such information
was derived.
Section 3.08. Maintenance of Office or Agency. The Owner Trustee shall
-------------------------------
maintain in The Borough of Manhattan, The City of New York, an office or offices
or agency or agencies where Trust Certificates may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Owner Trustee in respect of the Trust Certificates and the other Basic
Documents to which the Issuer is a party may be served. The Owner Trustee
initially designates The Chase Manhattan Bank, 55 Water Street, New York, New
York 10041, as its office for such purposes. The Owner Trustee shall give
prompt written notice to the Transferor and the other Trust Certificateholders
of any change in the location of the Certificate Register or any such office or
agency.
18
Section 3.09. Appointment of Paying Agent. The Paying Agent shall make
---------------------------
distributions to Trust Certificateholders and to the Subordinated Noteholder
pursuant to Section 5.02, and shall report the amounts of such distributions to
the Owner Trustee. Any Paying Agent shall have the revocable power to withdraw
funds from the Certificate Distribution Account for the purpose of making the
distributions referred to above. The Paying Agent initially shall be The Chase
Manhattan Bank. The Owner Trustee may revoke such power and remove the Paying
Agent if the Owner Trustee determines in its sole discretion that the Paying
Agent has failed to perform its obligations under this Agreement in any material
respect. Any co-paying agent chosen by the Transferor and acceptable to the
Owner Trustee shall also be a Paying Agent. Each Paying Agent may resign upon
30 days' written notice to the Owner Trustee. In the event that a Paying Agent
may no longer act as Paying Agent, the Owner Trustee shall appoint a successor
to act as Paying Agent (which shall be a bank or trust company). The Owner
Trustee shall cause such successor Paying Agent or any additional Paying Agent
appointed by the Owner Trustee to execute and deliver to the Owner Trustee an
instrument in which such successor Paying Agent or additional Paying Agent shall
agree with the Owner Trustee that as Paying Agent, such successor Paying Agent
or additional Paying Agent shall hold all sums, if any, held by it for payment
to the Subordinated Noteholder or the Trust Certificateholders in trust for the
benefit of the Subordinated Noteholder or the Trust Certificateholders entitled
thereto until such sums are paid to the Transferor or such Trust
Certificateholders. The Paying Agent shall return all unclaimed funds to the
Owner Trustee and upon removal of a Paying Agent such Paying Agent shall also
return all funds in its possession to the Owner Trustee. The provisions of
Sections 7.01, 7.03, 7.04 and 8.01 shall apply to the Owner Trustee also in its
role as Paying Agent, for so long as the Owner Trustee shall act as Paying Agent
and, to the extent applicable, to any other paying agent appointed hereunder.
Section 3.10. Ownership of Transferor Trust Certificate and Subordinated
----------------------------------------------------------
Notes.
- -----
(a) On the Closing Date, the Transferor shall acquire and retain
beneficial and record ownership of the Transferor Trust Certificate and the
Subordinated Notes. Except as set forth in the Basic Documents, any attempted
transfer of the Transferor Trust Certificate by the Transferor shall be null and
void. Notwithstanding the foregoing, upon a dissolution or termination of the
Transferor, the Trust Certificates held by it shall be distributed to BMW FS
without regard to the provisions of Section 3.02. The Owner Trustee shall cause
the Transferor Trust Certificate to bear a legend stating "THIS TRUST
CERTIFICATE IS NOT TRANSFERABLE EXCEPT IN THE EVENT OF THE DISSOLUTION,
TERMINATION OR BANKRUPTCY OF THE HOLDER HEREOF AND CANNOT BE TRANSFERRED UNLESS
THE TRANSFEREE IS ACQUIRING ALL OF THE SUBORDINATED NOTES, AND ANY TRANSFER IN
VIOLATION OF THIS PROVISION SHALL BE NULL AND VOID".
(b) On the Closing Date, the Transferor shall acquire beneficial and
record ownership of the entire initial principal amount of the Subordinated
Notes. On and after the Closing Date, the Transferor shall be required to retain
beneficial and record ownership of the Subordinated Notes. Any attempted
transfer of the Subordinated Notes shall be null and void, except as permitted
under the Basic Documents. Notwithstanding
19
the foregoing, upon a dissolution or termination of the holder of the
Subordinated Notes, they shall be distributed to the owners of such holder
without regard to the provisions of Section 3.02. The Owner Trustee shall cause
each Subordinated Note to bear a legend stating "THIS SUBORDINATED NOTE IS NOT
TRANSFERABLE EXCEPT IN THE EVENT OF THE DISSOLUTION, TERMINATION OR BANKRUPTCY
OF THE HOLDER HEREOF, AND ANY TRANSFER IN VIOLATION OF THIS PROVISION SHALL BE
NULL AND VOID".
Section 3.11. Trust Certificates held by Issuer, Transferor or their
------------------------------------------------------
Affiliates. Any Trust Certificates owned by the Issuer, the Transferor or any
of their respective Affiliates shall be entitled to the benefits under this
Agreement equally and proportionately to the benefits afforded other owners of
the Trust Certificates, except that such Trust Certificates shall be deemed not
to be outstanding for the purpose of determining whether the requisite
percentage of Securityholders have given any request, demand, authorization,
direction, notice, consent or other action under the Basic Documents (other than
the commencement by the Issuer of a voluntary proceeding in bankruptcy).
Article Four
ACTIONS BY OWNER TRUSTEE
Section 4.01. Prior Notice to Trust Certificateholders with Respect to
--------------------------------------------------------
Certain Matters. Subject to the provisions and limitations of Section 4.04, with
- ---------------
respect to the following matters, the Owner Trustee shall not take action unless
the Owner Trustee has notified the Trust Certificateholders and the Rating
Agencies in writing of the proposed action at least 30 days before the taking of
such action and Trust Certificateholders representing at least 50% of the
Certificate Balance have not notified the Owner Trustee in writing prior to the
30th day after such notice is given that such Trust Certificateholders have
withheld consent or provided alternative direction:
(a) the initiation of any claim or lawsuit by the Issuer and the
compromise of any action, claim or lawsuit brought by or against the Issuer
(other than an action brought by the Servicer on behalf of the Vehicle
Trust and Persons having interests in the 2000-A SUBI Certificates to
collect amounts owed under a 2000-A Lease or in respect of a 2000-A
Vehicle);
(b) the election by the Issuer to file an amendment to the
Certificate of Trust (unless such amendment is required to be filed under
the Business Trust Statute);
(c) the amendment of the Indenture in circumstances where the
consent of any Senior Noteholder is required;
(d) the amendment of the Indenture in circumstances where the
consent of any Senior Noteholder is not required and such amendment
materially and adversely affects the interests of the Trust
Certificateholders;
20
(e) the amendment of any other Basic Document unless such amendment
does not materially and adversely affect the interests of the Trust
Certificateholders;
(f) the amendment, change or modification of the Issuer
Administration Agreement, except to cure any ambiguity or to amend or
supplement any provision in a manner or add any provision that would not
materially adversely affect the interests of the Trust Certificateholders;
or
(g) the appointment of a successor Owner Trustee or Indenture
Trustee.
Section 4.02. Action by Trust Certificateholders with Respect to Certain
----------------------------------------------------------
Matters. Subject to the provisions and limitations of Section 4.04, to the
- -------
extent the Owner Trustee or the Issuer is deemed to be the Holder of the 2000-A
Vehicle SUBI Certificate pursuant to the SUBI Supplement, the Owner Trustee or
Issuer, as the case may be, shall take such actions as directed in writing by
Trust Certificateholders holding Trust Certificates evidencing an interest of at
least 66 2/3% of the Certificate Balance; provided, however, that so long as the
Lien of the Indenture is outstanding, such direction shall be subject to the
consent of the Indenture Trustee. The Owner Trustee may not, except upon the
occurrence of a Servicer Default subsequent to the payment in full of the Senior
Notes and in accordance with the written directions of Trust Certificateholders
holding 66 2/3% of the Certificate Balance, remove the Servicer, with respect to
the 2000-A SUBI Assets or appoint a successor Servicer, with respect thereto.
Section 4.03. Action by Owner Trustee with Respect to Bankruptcy. The
--------------------------------------------------
Owner Trustee shall not have the power to commence a voluntary proceeding in
bankruptcy with respect to the Issuer except in accordance with Section 12.08.
Section 4.04. Restrictions on Trust Certificateholders' Power. The Trust
-----------------------------------------------
Certificateholders shall not direct the Owner Trustee to take or refrain from
taking any action if such action or inaction would be contrary to any obligation
of the Issuer or the Owner Trustee under this Agreement or any of the other
Basic Documents or would be contrary to the purpose of the Issuer as set forth
in Section 2.03 or which could result in the trust being treated as an entity
separate from the Transferor, association or publicly traded partnership taxable
as a corporation for U.S. federal income tax purposes, nor shall the Owner
Trustee be obligated to follow any such direction, if given.
Section 4.05. Majority Control. Except as expressly provided herein, any
----------------
action that may be taken by the Trust Certificateholders under this Agreement
may be taken by the Trust Certificateholders holding not less than a majority of
the Certificate Balance. Except as expressly provided herein, any written
notice of the Trust Certificateholders delivered pursuant to this Agreement
shall be effective if signed by Trust Certificateholders holding not less than a
majority of the Certificate Balance at the time of delivery of such notice.
21
Article Five
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
Section 5.01. Establishment of Certificate Distribution Account and
-----------------------------------------------------
Reserve Fund.
- ------------
(a) The Owner Trustee, for the benefit of the Trust Certificateholders
and the Subordinated Noteholder, shall establish and maintain an Eligible
Account with and in the name of the Owner Trustee which shall be designated the
"Certificate Distribution Account". The Certificate Distribution Account shall
be held in trust for the benefit of the Trust Certificateholders and the
Subordinated Noteholder, and shall bear a designation clearly indicating that
the funds deposited therein are held for the benefit of the Trust
Certificateholders and the Subordinated Noteholder.
The Owner Trustee shall possess all right, title and interest in all funds
on deposit from time to time in the Certificate Distribution Account and in all
proceeds thereof. Except as otherwise provided herein, the Certificate
Distribution Account shall be under the sole dominion and control of the Owner
Trustee for the benefit of the Trust Certificateholders and the Subordinated
Noteholder. If at any time the Certificate Distribution Account ceases to be an
Eligible Account, the Owner Trustee (or the Transferor on behalf of the Owner
Trustee, if the Certificate Distribution Account is not then held by the Owner
Trustee or an Affiliate thereof) shall, within ten Business Days following
notification of such occurrence (or such longer period, not to exceed 30
calendar days, as to which each Rating Agency may consent), establish a new
Certificate Distribution Account as an Eligible Account and shall transfer any
cash or investments to such new Certificate Distribution Account.
(b) The Transferor shall establish and maintain an Eligible Account
(initially at The Chase Manhattan Bank) in the name of the Indenture Trustee
until the Outstanding Amount of the Senior Notes is reduced to zero, and
thereafter, in the name of the Owner Trustee, which is designated as the
"Reserve Fund." The Reserve Fund shall be held for the benefit of the
Securityholders, and shall bear a designation clearly indicating that the funds
on deposit therein are held for the benefit of the Securityholders.
The Reserve Fund shall be under the sole dominion and control of the
Indenture Trustee until the Outstanding Amount (as defined in the Indenture) of
the Senior Notes has been reduced to zero, and thereafter under the sole
dominion and control of the Owner Trustee. On the Closing Date, the Transferor
shall cause the Initial Deposit to be deposited into the Reserve Fund from the
net proceeds of the sale of the Notes and the Trust Certificates. The
Transferor hereby acknowledges that the Initial Deposit and all other Reserve
Fund Property, including investment earnings thereon, are owned directly by it
in its capacity as Transferor Trust Certificateholder pending application
thereof to the Secured Obligations or release to the Transferor or its designee
pursuant to Section 8.04(c) of the Indenture or Section 5.02 hereof, as
applicable. The Transferor in its capacity as Transferor Trust
Certificateholder hereby agrees to treat the same as its assets (and earnings)
for federal income tax and other purposes. All deposits to
22
and withdrawals from the Reserve Fund shall be made only upon the terms and
conditions of the Basic Documents.
(c) Each of the Transferor and the Issuer shall take or cause to be
taken such further actions, to execute, deliver and file or cause to be
executed, delivered and filed such further documents and instruments (including,
without limitation, the Control Agreement or any UCC financing statements) as
may be determined to be reasonably necessary by the Transferor, in order to
perfect the interests created by Section 5.01 (b) hereof and otherwise fully to
effectuate the purposes, terms and conditions of this Section. The Transferor
(or the Administrator on behalf of the Transferor) shall:
(i) promptly execute, deliver and file any financing statements,
amendments, continuation statements, assignments, certificates and other
documents with respect to such interests and perform all such other acts as
may be necessary in order to perfect or to maintain the perfection of the
Issuer's security interest in the Reserve Fund Property; and
(ii) make the necessary filings of financing statements or
amendments thereto within five days after the occurrence of any of the
following (and promptly notify the Issuer and the Owner Trustee of each
such filing): (A) any change in the Transferor's corporate name or any
trade name, (B) any change in the location of its chief executive office or
principal place of business or (C) any merger or consolidation or other
change in its identity or corporate structure.
Section 5.02. Application of Trust Funds.
--------------------------
(a) Until the Senior Note Outstanding Amount has been reduced to zero,
on each Payment Date, the Paying Agent (or the Owner Trustee, if there is no
Paying Agent) shall pay, to the extent of funds available, the amount required
to be deposited by the Vehicle Trustee and by the Indenture Trustee into the
Certificate Distribution Account pursuant to Section 8.04 of the Indenture for
the payment of interest on and, after the payment in full of the Notes,
principal of the Trust Certificates on such Payment Date, pro rata to the Trust
Certificateholders of record at the close of business on the Record Date with
respect to such Payment Date. Pursuant to Section 5.02(f), on each Payment Date
all interest and principal distributable in respect of the Subordinated Notes
for the related Collection Period shall be deposited directly to the Reserve
Fund.
(b) On and after the date on which the Senior Note Outstanding Amount
has been reduced to zero, pursuant to the Indenture and the Control Agreement,
dominion and control over the Reserve Fund shall be transferred to the Owner
Trustee. On each Payment Date thereafter, all amounts distributable to the Trust
Certificateholders and the Subordinated Noteholder from the Reserve Fund shall
be distributed by the Owner Trustee in the order and priority set forth in
Section 8.04(b) of the Indenture and the Owner Trustee shall comply with Section
8.04(c) and 8.05(a) of the Indenture.
On the Payment Date on which the Certificate Balance has been reduced to
zero, the Owner Trustee shall release to the Transferor in its capacity of
Transferor Trust
23
Certificateholder and Subordinated Noteholder, without recourse, representation
or warranty (except as set forth in Section 7.03), all of the Issuer's right,
title, and interest in, to and under the Reserve Fund Property. In addition, on
or following the Payment Date on which the Certificate Balance has been reduced
to zero, the Transferor may direct the Owner Trustee in writing to distribute to
it, and upon receipt of such direction the Owner Trustee shall distribute to the
Transferor in its capacity of Transferor Trust Certificateholder and
Subordinated Noteholder, the remaining assets of the Issuer.
(c) On each Payment Date, the Owner Trustee shall send to each Trust
Certificateholder and to the Subordinated Noteholder a report (the "Distribution
Statement") provided by the Servicer, based on information in the Payment Date
Certificate delivered pursuant to Section 8.03 of the Indenture, that shall
include the following information:
(i) the amount of SUBI Collections for the related Collection
Period and the amounts allocable to the 2000-A SUBI Certificates;
(ii) the Certificate Balance on the immediately preceding Payment
Date, or if the current Payment Date is the first Payment Date, on the
Closing Date;
(iii) the aggregate amount of interest accrued and paid on the
Senior Notes, the Trust Certificates and the Subordinated Notes during the
related Accrual Period;
(iv) the aggregate amount of principal paid with respect to the
Senior Notes, the Trust Certificates and the Subordinated Notes on such
Payment Date, the Principal Shortfall Amount, if any, and the Optimal
Principal Distribution Amount;
(v) the Outstanding Amount of the Notes and the Certificate
Balance on the day immediately preceding such Payment Date;
(vi) the Subordinated Note Factor and the Certificate Factor
(after giving effect to payments made on such Payment Date);
(vii) the Available Funds deposited into the SUBI Collection
Account, including amounts with respect to each of items (i) through (iv)
of the definition thereof;
(viii) the Reserve Fund Deposit Amount and the Reserve Fund
Requirement, each as of the beginning and end of the related Collection
Period;
(ix) the Reserve Fund Draw Amount, if any;
(x) the Servicing Fee and the Payment Date Advance Reimbursement
for the related Collection Period;
24
(xi) the amount of Residual Value Losses for the immediately
preceding Collection Period; and
(xii) the amount of Special Event Purchases made during the
related Collection Period and the aggregate Cutoff Date Securitization
Value of all 2000-A Leases relating to Special Event Purchases made (a)
during the related calendar year or (b) since the Closing Date.
The information required to be delivered by such Distribution Statement may
be included with other information or reports furnished by the Servicer to the
Owner Trustee in connection with the making of payments pursuant to the other
Basic Documents.
(d) In the event that any withholding tax is imposed on the Issuer's
payment (or, if the Issuer is treated as a partnership for federal income tax
purposes, allocations of income) to a Trust Certificateholder, such tax shall
reduce the amount otherwise distributable to such Trust Certificateholder in
accordance with this Section. The Owner Trustee is hereby authorized and
directed to retain from amounts otherwise distributable to such Trust
Certificateholders, sufficient funds for the payment of any withholding tax that
is legally owed by the Issuer (but such authorization shall not prevent the
Owner Trustee from contesting any such tax in appropriate proceedings, and
withholding payment of such tax, if permitted by law, pending the outcome of
such proceedings). The amount of any withholding tax imposed with respect to a
Trust Certificateholder shall be treated as cash distributed to such Trust
Certificateholders, at the time it is withheld by the Issuer for remittance to
the appropriate taxing authority. If the Owner Trustee determines that there is
a possibility that withholding tax is payable with respect to a distribution,
the Owner Trustee may in its sole discretion withhold such amounts in accordance
with this Section. In the event that a Trust Certificateholder wishes to apply
for a refund of any such withholding tax, the Owner Trustee shall reasonably
cooperate with such Trust Certificateholder in making such claim so long as such
Trust Certificateholder agrees to reimburse the Owner Trustee for any out-of-
pocket expenses incurred.
(e) Subject to Section 6.07 of the Indenture and 6.01 hereof, as the
case may be, neither the Indenture Trustee nor the Owner Trustee, as the case
may be, shall in any way be held liable by reason of any insufficiency in the
Reserve Fund resulting from any loss on any Permitted Investment included
therein, except for losses attributable to the Indenture Trustee's or Owner
Trustee's, as the case may be, failure to make payments on any such Permitted
Investments issued by the Indenture Trustee or Owner Trustee, as the case may
be, in its commercial capacity as principal obligor and not as trustee, in
accordance with their terms.
(f) In order to assure that sufficient amounts are available to make the
payments to Securityholders pursuant to Section 8.04 of the Indenture and this
Section (collectively, the "Secured Obligations") the Transferor:
25
(i) hereby pledges and assigns and grants a security interest in
all of its right, title and interest in the Subordinated Notes to the
Issuer, to secure the Secured Obligations;
(ii) acknowledges that the Issuer has assigned or will assign its
security interest in the Subordinated Notes to the Indenture Trustee to
secure payment of the Senior Notes and directs the Issuer to deliver such
Subordinated Notes directly to the Indenture Trustee for redelivery by the
Indenture Trustee to the custody unit of the Indenture Trustee located in
New York in order to perfect the security interest therein;
(iii) agrees that on each Payment Date, all payments of interest
on and principal of the Subordinated Notes shall be deposited directly into
the Reserve Fund; and
(iv) hereby pledges and assigns and grants a security interest in
all of its right, title and interest in the Reserve Fund Property to the
Issuer, to secure the Secured Obligations.
Section 5.03. Method of Payment. Subject to Section 9.01(c) respecting the
-----------------
final payment upon retirement of the Trust Certificates, distributions required
to be made to Trust Certificateholders on any Payment Date shall be made to each
Trust Certificateholder of record on the related Record Date by check mailed to
the addresses of such Securityholders as they appear on the Certificate
Register. As set forth in Section 5.02(f), payments to be made to the
Subordinated Noteholder shall be deposited directly in the Reserve Fund.
Notwithstanding the foregoing, the final payment on the Trust Certificates or
the Subordinated Notes shall be made only upon presentation and surrender of
such Trust Certificates or Subordinated Notes at the office or agency specified
in the notice of final payment to the Trust Certificateholders or the
Subordinated Noteholder. The Owner Trustee or a Paying Agent shall, upon receipt
of at least 45 days' notice from the Issuer or the Administrator as set forth in
the Indenture, provide such notice to the Subordinated Noteholder and to Trust
Certificateholders of record not more than 30 days and not less than 15 days
prior to the date on which such final payment is expected to occur.
Section 5.04. Accounting and Reports.
----------------------
(a) The Owner Trustee shall, based on information provided by the
Transferor, (i) maintain (or cause to be maintained) the books of the Issuer on
a calendar year basis on the accrual method of accounting (except as required by
Article Eleven), (ii) deliver to each Trust Certificateholder and the
Subordinated Noteholder not later than the latest date permitted by law (A) a
statement of the amounts provided for in Section 8.04 of the Indenture and (B)
such information as may be required by the Code and applicable Treasury
Regulations with respect to instruments such as the Trust Certificates or the
Subordinated Notes, as the case may be, that is consistent with the position
that the Trust Certificates (other than the Transferor Trust Certificate) will
be treated as debt for federal income tax and state income and franchise tax
purposes and (iii) in addition to the
26
Owner Trustee's rights under Section 5.02, take such action as instructed by the
Transferor, as holder of the Transferor Trust Certificate, to collect or cause
to be collected and paid over to applicable authorities any withholding tax as
described in and in accordance with Section 5.02 and Article Eleven with respect
to income or distributions to Trust Certificateholders. The Owner Trustee shall
make all elections pursuant to Article Eleven as directed by the Transferor.
(b) The Transferor shall maintain such books and records, and shall
prepare and file such reports and returns, as are required pursuant to Sections
2.10 and 5.02.
Article Six
AUTHORITY AND DUTIES OF OWNER TRUSTEE
Section 6.01. General Authority. The Owner Trustee shall administer the
-----------------
Issuer in the interest of the Trust Certificateholders, subject to the Lien of
the Indenture Trustee and the obligations of the Issuer under the Subordinated
Notes, in accordance with the Basic Documents. Subject to the provisions and
limitations of Sections 2.03 and 2.06, the Owner Trustee is authorized and
directed to execute and deliver on behalf of the Issuer the Basic Documents to
which the Issuer is to be a party and each certificate or other document
attached as an exhibit to or contemplated by the Basic Documents to which the
Issuer is to be a party, in each case in such form as the Transferor shall
approve as evidenced conclusively by the Owner Trustee's execution thereof and
the Transferor's execution of this Agreement, and to direct the Indenture
Trustee to authenticate and deliver Senior Notes in the aggregate principal
amount not to exceed $[ ] (except as otherwise contemplated by Section 3.05). In
addition to the foregoing, the Owner Trustee is authorized to take all actions
required of the Issuer pursuant to the Basic Documents. The Owner Trustee is
further authorized from time to time to take such action on behalf of the Issuer
as is permitted by the Basic Documents and that the Servicer or the
Administrator recommends with respect to the Basic Documents, except to the
extent this Agreement expressly requires the consent of the Trust
Certificateholders or the Subordinated Noteholder for such action.
Section 6.02. General Duties. Subject to the provisions and limitations of
--------------
Sections 2.03 and 2.06, it shall be the duty of the Owner Trustee to discharge
or cause to be discharged all of its responsibilities pursuant to the terms of
the Basic Documents to which the Issuer is a party and to administer the Issuer
in the interest of the Trust Certificateholders, subject to the Lien of the
Indenture Trustee and to the obligations of the Issuer under the Subordinated
Notes, and in accordance with provisions of the Basic Documents. Notwithstanding
the foregoing, the Owner Trustee shall be deemed to have discharged its duties
and responsibilities hereunder and under the other Basic Documents to the extent
the Administrator has agreed in the Issuer Administration Agreement to perform
any act or to discharge any duty of the Issuer or the Owner Trustee hereunder or
under any other Basic Document, and the Owner Trustee shall not be held liable
for the default or failure of the Administrator to carry out its obligations
under the Issuer Administration Agreement.
27
Section 6.03. Action Upon Instruction.
-----------------------
(a) Subject to Article Four, the Transferor, as holder of the Transferor
Trust Certificate, may by written instruction direct the Owner Trustee in the
administration of the Issuer subject to, and in accordance with, the terms of
the Basic Documents; provided that such instruction shall not, materially
adversely affect any Securityholder.
(b) The Owner Trustee shall not be required to take any action hereunder
or under any other Basic Document if the Owner Trustee shall have reasonably
determined, or shall have been advised by counsel, that such action is likely to
result in liability on the part of the Owner Trustee, is contrary to the terms
hereof or of any other Basic Document or is otherwise contrary to law or any
obligation of the Owner Trustee or the Issuer.
(c) Whenever the Owner Trustee is unable to decide between alternative
courses of action permitted or required by the terms of this Agreement or any
other Basic Document, the Owner Trustee shall promptly give notice (in such form
as shall be appropriate under the circumstances) to the Transferor, as holder of
the Transferor Trust Certificate requesting instruction as to the course of
action to be adopted, and to the extent the Owner Trustee acts in good faith in
accordance with any written instruction of Trust Certificateholders holding not
less than a majority of the Certificate Balance, the Owner Trustee shall not be
liable on account of such action to any Person. If the Owner Trustee shall not
have received appropriate instruction within ten days of such notice (or within
such shorter period of time as reasonably may be specified in such notice as may
be necessary under the circumstances), it may, but shall be under no duty to,
take or refrain from taking such action not inconsistent with this Agreement or
the other Basic Documents as it shall deem to be in the best interests of the
Trust Certificateholders, and shall have no liability to any Person for such
action or inaction.
(d) In the event the Owner Trustee is unsure as to the application of
any provision of this Agreement or any other Basic Document or any such
provision is ambiguous as to its application, or is, or appears to be, in
conflict with any other applicable provision, or in the event that this
Agreement or any other Basic Document permits any determination by the Owner
Trustee or is silent or is incomplete as to the course of action the Owner
Trustee is required to take with respect to a particular set of facts, the Owner
Trustee may give notice (in such form as shall be appropriate under the
circumstances) to the Transferor, as holder of the Transferor Trust Certificate
requesting instruction and, to the extent the Owner Trustee acts or refrains
from acting in good faith in accordance with any such instruction received from
Transferor, as holder of the Transferor Trust Certificate and in accordance with
Sections 6.04 and 6.05, the Owner Trustee shall not be liable, on account of
such action or inaction, to any Person. If the Owner Trustee shall not have
received appropriate instruction within ten days of such notice (or within such
shorter period of time as reasonably may be specified in such notice or as may
be necessary under the circumstances) it may, but shall be under no duty to,
take or refrain from taking such action, not inconsistent with this Agreement or
the other Basic Documents, as it shall deem to be in the best interests of the
Trust Certificateholders, and shall have no liability to any Person for such
action or inaction.
28
(e) Notwithstanding the foregoing, the right of the Transferor or the
Trust Certificateholders to take any action affecting the Owner Trust Estate
shall be subject to the rights of the Indenture Trustee under the Indenture.
Section 6.04. No Duties Except as Specified. The Owner Trustee shall not
-----------------------------
be required to perform any of the obligations of the Issuer under this Agreement
or the other Basic Documents that are required to be performed by (i) the
Servicer under the Servicing Agreement or the SUBI Supplement, (ii) the
Transferor under this Agreement, the SUBI Certificate Transfer Agreement, the
Back-Up Security Agreement or the Program Operating Lease, (iii) the
Administrator under the Issuer Administration Agreement or (iv) the Indenture
Trustee under the Indenture. The Owner Trustee shall not have any duty or
obligation to manage, make any payment with respect to, register, record, sell,
dispose of or otherwise deal with the Owner Trust Estate, or to otherwise take
or refrain from taking any action under, or in connection with, any document
contemplated hereby to which the Issuer is a party, except as expressly provided
by the terms of this Agreement or in any document or written instruction
received by the Owner Trustee pursuant to Section 6.03; and no implied duties or
obligations shall be read into this Agreement or any other Basic Document
against the Owner Trustee. The Owner Trustee shall have no responsibility for
filing any financing or continuation statement in any public office at any time
or to otherwise perfect or maintain the perfection of any ownership or security
interest in the Owner Trust Estate or to record this Agreement or any other
Basic Document. The Owner Trustee nevertheless agrees that it will, at its own
cost and expense, promptly take all action as may be necessary to discharge any
Liens (other than the Lien of the Indenture) on any part of the Owner Trust
Estate that result from actions by or claims against the Owner Trustee in its
individual capacity that are not related to the ownership or the administration
of the Owner Trust Estate.
Section 6.05. No Action Unless Specifically Authorized. The Owner Trustee
----------------------------------------
shall not manage, control, use, sell, dispose of or otherwise deal with any part
of the Owner Trust Estate except in accordance with (i) the powers granted to
and the authority conferred upon the Owner Trustee pursuant to this Agreement,
(ii) the other Basic Documents to which the Issuer or the Owner Trustee is a
party and (iii) any document or instruction delivered to the Owner Trustee
pursuant to Section 6.03. In particular, the Owner Trustee shall not transfer,
sell, pledge, assign or convey the 2000-A Vehicle SUBI Certificate except as
specifically required or permitted by the Basic Documents.
Section 6.06. Restrictions. The Owner Trustee shall not take any action
------------
(i) that is contrary to the purposes of the Issuer set forth in Section 2.03 or
(ii) that, to the actual knowledge of the Owner Trustee, would (a) affect the
treatment of the Senior Notes or the Certificates (other than the Transferor
Trust Certificate) as debt for federal income tax purposes, (b) be deemed to
cause a taxable exchange of the Senior Notes or the Certificates for federal
income tax purposes or (c) cause the Issuer, the Transferor or the Vehicle Trust
or any portion thereof to be taxable as an association (or a publicly traded
partnership) taxable as a corporation for federal or state income or franchise
tax purposes. The Trust Certificateholders, the Subordinated Noteholder and the
Transferor shall not direct the Owner Trustee to take action that would violate
the provisions of this Section. The Owner Trustee may not (i) initiate or settle
any claim or lawsuit involving the Issuer
29
(unless brought by the Servicer to collect amounts owed under a Specified
Lease), (ii) amend this Agreement where Trust Certificateholder consent is
required, (iii) amend this Agreement where Trust Certificateholder consent is
not required if such amendment materially adversely affects the Trust
Certificateholders or (iv) amend any Basic Document other than this Agreement if
such amendment materially adversely affects the Trust Certificateholders, unless
(a) the Owner Trustee provides 30 days' written notice thereof to the Trust
Certificateholders and each Rating Agency and (b) Trust Certificateholders
holding at least 50% of the Certificate Balance do not object in writing to any
such proposed amendment within 30 days of such notice. Notwithstanding anything
herein to the contrary, the Transferor, the Servicer and their respective
Affiliates may maintain normal commercial banking relationships with the Owner
Trustee and its Affiliates.
Article Seven
CONCERNING THE OWNER TRUSTEE
Section 7.01. Acceptance of Trusts and Duties. The Owner Trustee accepts
-------------------------------
the trusts hereby created and agrees to perform its duties hereunder with
respect to such trusts but only upon the terms of this Agreement. The Owner
Trustee also agrees to disburse all monies actually received by it constituting
part of the Owner Trust Estate upon the terms of the Basic Documents to which
the Issuer or the Owner Trustee is a party. The Owner Trustee shall not be
answerable or accountable hereunder or under any other Basic Document under any
circumstances, except (i) for its own willful misconduct, bad faith or
negligence or (ii) in the case of the inaccuracy of any representation or
warranty contained in Section 7.03 made by the Owner Trustee. In particular, but
not by way of limitation, and subject to the exceptions set forth in the
preceding sentence:
(a) the Owner Trustee shall not be liable for any error in judgment of
a responsible officer of the Owner Trustee;
(b) the Owner Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in accordance with the instructions of
any Trust Certificateholder, the Transferor (as holder of the Subordinated
Notes), the Indenture Trustee, the Transferor, the Administrator or the
Servicer;
(c) no provision of this Agreement or any other Basic Document shall
require the Owner Trustee to expend or risk funds or otherwise incur any
financial liability in the performance of any of its rights or powers
hereunder or under any other Basic Document if the Owner Trustee shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured or
provided to it;
(d) under no circumstances shall the Owner Trustee be liable for
indebtedness evidenced by or arising under any of the Basic Documents,
including the principal of and interest on the Notes or the Trust
Certificates;
30
(e) the Owner Trustee shall not be responsible for or in respect of
the validity or sufficiency of this Agreement or for the due execution
hereof by the Transferor or for the form, character, genuineness,
sufficiency, value or validity of any of the Owner Trust Estate or for or
in respect of the validity or sufficiency of the other Basic Documents,
other than the execution of and the certificate of authentication on the
Trust Certificates and the Subordinated Notes, and the Owner Trustee shall
in no event be deemed to have assumed or incurred any liability, duty or
obligation to any Securityholder or any third party dealing with the Issuer
or the Owner Trust Estate, other than as expressly provided for herein and
in the other Basic Documents;
(f) the Owner Trustee shall not be liable for the misfeasance,
malfeasance or nonfeasance of the Servicer, the Administrator, the
Transferor or the Indenture Trustee under any of the Basic Documents or
otherwise, and the Owner Trustee shall have no obligation or liability to
perform the obligations of the Issuer or the Transferor under this
Agreement or the Basic Documents that are required to be performed by the
Servicer under the Servicing Agreement or the SUBI Trust Agreement, the
Transferor under the Program Operating Lease, the Administrator under the
Issuer Administration Agreement or the Indenture Trustee under the
Indenture; and
(g) the Owner Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Agreement, or to institute,
conduct or defend any litigation under this Agreement or otherwise or in
relation to this Agreement or any other Basic Document, at the request,
order or direction of any of the Trust Certificateholders or the
Subordinated Noteholder unless such Trust Certificateholders or the
Subordinated Noteholder have offered to the Owner Trustee security or
indemnity satisfactory to it against the Expenses that may be incurred by
the Owner Trustee therein or thereby; the right of the Owner Trustee to
perform any discretionary act enumerated in this Agreement or in any other
Basic Document shall not be construed as a duty, and the Owner Trustee
shall not be answerable for other than its bad faith, negligence or willful
misconduct in the performance of any such act.
Section 7.02. Furnishing of Documents. The Owner Trustee shall furnish to
-----------------------
any Trust Certificateholder or the Subordinated Noteholder promptly upon receipt
of a written request by such Trust Certificateholder or the Subordinated
Noteholder (at the expense of the requesting Trust Certificateholder or the
Subordinated Noteholder) therefor, duplicates or copies of all reports, notices,
requests, demands, certificates and any other instruments furnished to the Owner
Trustee under the Basic Documents.
Section 7.03. Representations and Warranties. The Owner Trustee hereby
------------------------------
represents and warrants to the Transferor, the Trust Certificateholders and the
Subordinated Noteholder, that:
(a) It is a banking corporation duly organized and validly existing in
good standing under the laws of the State of Delaware. It has all requisite
31
corporate power and authority to execute, deliver and perform its
obligations under this Agreement.
(b) It has taken all corporate action necessary to authorize the
execution and delivery by it of this Agreement, and this Agreement will be
executed and delivered by one of its officers who is duly authorized to
execute and deliver this Agreement on its behalf.
(c) Neither the execution nor the delivery by it of this Agreement,
nor the consummation by it of the transactions contemplated hereby nor
compliance by it with any of the terms or provisions hereof will contravene
any federal or Delaware law, governmental rule or regulation governing the
banking or trust powers of the Owner Trustee or any judgment or order
binding on it, or constitute any default under its charter documents or
bylaws or any indenture, mortgage, contract, agreement or instrument to
which it is a party or by which any of its properties may be bound or
result in the creation or imposition of any Lien, charge or encumbrance on
the Owner Trust Estate resulting from actions by or claims against the
Owner Trustee individually that are unrelated to this Agreement or the
other Basic Documents.
(d) This Agreement has been duly executed and delivered by it and
constitutes the legal, valid and binding agreement of it, enforceable
against the Owner Trustee in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization or
other similar laws affecting the enforcement of creditors' rights in
general and by general principles of equity, regardless of whether such
enforceability is considered in a proceeding in equity or at law.
Section 7.04. Reliance; Advice of Counsel.
---------------------------
(a) The Owner Trustee may rely upon, shall be protected in relying upon
and shall incur no liability to anyone in acting or refraining from acting upon,
any signature, instrument, notice, resolution, request, consent, order,
certificate, report, opinion, bond or other document or paper believed by it to
be genuine and believed by it to be signed by the proper party or parties. The
Owner Trustee may accept a certified copy of a Board Resolution or documents of
any other governing body of any corporate party as conclusive evidence that such
Board Resolution or other document has been duly adopted by such body and that
the same is in full force and effect. As to any fact or matter the method of the
determination of which is not specifically prescribed herein, the Owner Trustee
may for all purposes hereof rely on a certificate, signed by the president, any
vice president, the treasurer, any assistant treasurer or any other authorized
officers of the relevant party as to such fact or matter, and such certificate
shall constitute full protection to the Owner Trustee for any action taken or
omitted to be taken by it in good faith in reliance thereon.
(b) In the exercise or administration of the trusts hereunder and in the
performance of its duties and obligations under this Agreement and the other
Basic
32
Documents, the Owner Trustee (i) may act directly or through its agents or
attorneys pursuant to agreements entered into with any of them, and the Owner
Trustee shall not be liable for the conduct or misconduct of such agents or
attorneys if such agents or attorneys shall have been selected by the Owner
Trustee with reasonable care and (ii) may consult with counsel, accountants and
other skilled Persons to be selected with reasonable care and employed by it.
The Owner Trustee shall not be liable for anything done, suffered or omitted in
good faith by it in accordance with the opinion or advice of any such counsel,
accountants or other such Persons and not contrary to this Agreement or any
other Basic Document.
Section 7.05. Not Acting in Individual Capacity. Except as provided in
---------------------------------
this Article, in accepting the trusts hereby created, Wilmington Trust Company
acts solely as Owner Trustee hereunder and not in its individual capacity and
all Persons having any claim against the Owner Trustee by reason of the
transactions contemplated by this Agreement or any Basic Document shall look
only to the Owner Trust Estate for payment or satisfaction thereof.
Section 7.06. Owner Trustee Not Liable for Trust Certificates or
--------------------------------------------------
Subordinated Notes. The recitals contained herein and in the Trust Certificates
- ------------------
and the Subordinated Notes (other than the signature of the Owner Trustee and
the certificate of authentication on the Trust Certificates and the Subordinated
Notes and its representations and warranties in Section 7.03) shall be taken as
the statements of the Transferor and the Owner Trustee assumes no responsibility
for the correctness thereof. The Owner Trustee makes no representations as to
the validity or sufficiency of this Agreement, any other Basic Document or the
Trust Certificates or the Subordinated Notes (other than the signature of the
Owner Trustee and the certificate of authentication on the Trust Certificates
and the Subordinated Notes) or the Senior Notes or any offering document
relating to either of them. The Owner Trustee shall at no time have any
responsibility or liability for or with respect to the legality, validity or
enforceability of any Basic Document to which the Owner Trustee is to be a party
(except for enforceability against the Owner Trustee), or the perfection and
priority of any security interest created by or under any Basic Document, or the
maintenance of any such perfection and priority, or for or with respect to the
sufficiency of the Owner Trust Estate or its ability to generate the payments to
be distributed to Trust Certificateholders or to the Subordinated Noteholder
under this Agreement or the Senior Noteholders under the Indenture, the validity
of the transfer of the 2000-A Vehicle SUBI Certificate or the pledge of the
2000-A Lease SUBI Certificate to the Issuer or of the lease by the Issuer of the
2000-A Vehicle SUBI Certificate to the Transferor pursuant to the Program
Operating Lease, or for the compliance by the Transferor, the Administrator or
the Servicer with any warranty or representation made under any Basic Document
or for the accuracy of any such warranty or representation or for any action of
the Administrator, the Servicer or the Indenture Trustee taken in the name of
the Owner Trustee.
Section 7.07. Owner Trustee May Own Trust Certificates and Notes. The
--------------------------------------------------
Owner Trustee in its individual or any other capacity may become the owner or
pledgee of Trust Certificates or Notes and may deal with the Transferor, the
Servicer, the
33
Administrator, the Indenture Trustee and their respective Affiliates, in banking
transactions with the same rights as it would have if it were not the Owner
Trustee.
Article Eight
COMPENSATION OF OWNER TRUSTEE
Section 8.01. Owner Trustee's Compensation and Indemnification.
------------------------------------------------
(a) The Owner Trustee, the Certificate Registrar and any Paying Agent
shall receive as compensation from the Administrator for its services hereunder
such fees as have been separately agreed upon before the date hereof between the
Transferor or the Administrator and the Owner Trustee, the Certificate Registrar
or the Paying Agent. The Transferor, as holder of the Transferor Trust
Certificate, shall be liable as primary obligor for, and shall indemnify the
Owner Trustee, the Certificate Registrar and any Paying Agent and their
respective successors, assigns, agents, servants, officers and employees
(collectively, the "Indemnified Parties") from and against, any Expenses (other
than overhead) that may at any time be imposed on, incurred by or asserted
against the Owner Trustee or any other Indemnified Party in any way relating to
or arising out of the Basic Documents, the Owner Trust Estate, the
administration of the Owner Trust Estate or the action or inaction of the Owner
Trustee hereunder, except only that the Transferor, as holder of the Transferor
Trust Certificate and the Subordinated Notes, shall not be liable for or
required to indemnify any Indemnified Party from and against Expenses arising or
resulting from any of the matters described in items (i) or (ii) of the third
sentence of Section 7.01 or for any income taxes on any fees payable to any
Indemnified Party as set forth in Section 2.07. The indemnities contained in
this Section shall survive the resignation or termination of the Owner Trustee,
the Certificate Registrar or any Paying Agent or the termination of this
Agreement. In any event of any claim, action or proceeding for which indemnity
will be sought pursuant to this Section, the Indemnified Party's choice of legal
counsel shall be subject to the approval of the Transferor, which approval shall
not be unreasonably withheld. Neither the Transferor nor the Administrator shall
make any claim upon the Owner Trust Estate for the payment of such Expenses.
(b) Notwithstanding the foregoing, the Owner Trustee shall not be liable
for (i) any error of judgment made by an officer of the Owner Trustee, (ii) any
action taken or omitted to be taken in accordance with the instructions of any
Trust Certificateholder or the Subordinated Noteholder, the Indenture Trustee,
the Transferor, the Administrator or the Servicer, (iii) the interest on or
principal of the Securities or (iv) the default or misconduct of the
Administrator, the Servicer, the Transferor or the Indenture Trustee.
34
Article Nine
TERMINATION OF TRUST AGREEMENT
Section 9.01. Termination of Trust Agreement.
------------------------------
(a) This Agreement (other than Article Eight) shall terminate and be of no
further force or effect, (i) upon the final distribution by the Owner Trustee of
all funds or other property or proceeds of the Owner Trust Estate in accordance
with the terms of the Indenture and this Agreement and (ii) at the times
provided in Section 9.02. The bankruptcy, liquidation, dissolution, or
termination, death or incapacity of any Trust Certificateholder, shall not (i)
operate to terminate this Agreement or the Issuer, (ii) entitle such Trust
Certificateholder's legal representatives or heirs to claim an accounting or to
take any action or proceeding in any court for a partition or winding up of all
or any part of the Issuer or Owner Trust Estate nor (iii) otherwise affect the
rights, obligations and liabilities of the parties hereto.
(b) Except as provided in Section 9.01(a), neither the Transferor nor any
other Trust Certificateholder shall be entitled to revoke or terminate the
Issuer.
(c) Notice of any termination of this Agreement pursuant to Section
9.01(a) shall be given by the Owner Trustee by letter to Trust
Certificateholders and the Subordinated Noteholder mailed within five Business
Days of receipt of notice of such termination from the Administrator, stating
(i) the Payment Date upon or with respect to which final payment of the Trust
Certificates and the Subordinated Notes shall be made upon presentation and
surrender of the Trust Certificates and the Subordinated Notes at the office of
the Paying Agent therein designated, (ii) the amount of any such final payment
and (iii) that the Record Date otherwise applicable to such Payment Date is not
applicable, payments being made only upon presentation and surrender of the
Trust Certificates and the Subordinated Notes at the office of the Paying Agent
therein specified. The Owner Trustee shall give such notice to the Certificate
Registrar (if other than the Owner Trustee) and the Paying Agent at the time
such notice is given to Trust Certificateholders and the Transferor. Upon
presentation and surrender of the Trust Certificates and the Subordinated Notes,
the Paying Agent shall cause to be distributed to Trust Certificateholders and
the Subordinated Noteholder (which amounts shall be deposited into the Reserve
Fund), amounts distributable on such Payment Date pursuant to Section 5.02. The
Owner Trustee shall promptly notify each Rating Agency upon the final payment of
the Trust Certificates.
(d) In the event that all of the Trust Certificateholders or the
Subordinated Noteholder shall not surrender their Trust Certificates or
Subordinated Notes for cancellation within six months after the date specified
in the above-mentioned written notice, the Owner Trustee shall give a second
written notice to the remaining Trust Certificateholders or the Subordinated
Noteholder to surrender their Trust Certificates or Subordinated Notes for
cancellation and receive the final distribution with respect thereto. If within
one year after the second notice, all of the Trust Certificates or Subordinated
Notes shall not have been surrendered for cancellation, the Owner Trustee
35
may take appropriate steps, or may appoint an agent to take appropriate steps,
to contact the remaining Trust Certificateholders or the Subordinated Noteholder
concerning surrender of their Trust Certificates or Subordinated Notes, and the
cost thereof shall be paid out of the funds and other assets that shall remain
subject to this Agreement. Any funds remaining in the Issuer after exhaustion of
such remedies shall be distributed by the Owner Trustee to the Administrator.
(e) Upon the winding up of the Issuer and its termination, the Owner
Trustee shall cause the Certificate of Trust to be cancelled by filing a
certificate of cancellation with the Secretary of State in accordance with
Section 3810 of the Business Trust Statute.
Section 9.02. Purchase of the 2000-A Vehicle SUBI Certificate; Redemption
-----------------------------------------------------------
of the Subordinated Notes; Repayment of the Trust Certificates.
- --------------------------------------------------------------
(a) The Transferor shall be permitted at its option (the "Optional
Purchase") to purchase the 2000-A Vehicle SUBI Certificate from the Issuer on
any Payment Date if, either before or after giving effect to any payment of
principal required to be made on such Payment Date, the Securities Balance is
less than or equal to 10% of the Initial Securities Balance. The purchase price
for the 2000-A Vehicle SUBI Certificate shall equal the Securities Balance, net
the Subordinated Note Balance, together with accrued interest thereon up to but
not including such related Payment Date (the "Optional Purchase Price"), which
amount shall be deposited by the Transferor into the SUBI Collection Account on
the Deposit Date related to such Payment Date. If the Transferor exercises the
Optional Purchase, the Senior Notes shall be redeemed, the Trust Certificates
shall be repaid and the Subordinated Notes shall be redeemed, in each case in
whole but not in part on the related Payment Date, and thereupon the pledge of
the 2000-A Lease SUBI shall be discharged and released and the 2000-A Lease SUBI
Certificate shall be returned to the Transferor.
(b) Upon deposit of the Subordinated Note Redemption Price in the Reserve
Fund and the Repayment Price in the Certificate Distribution Account, the Trust
Certificates and the Subordinated Notes shall be due and payable on the related
Payment Date, upon furnishing of a notice complying with Section 9.03(c) to each
Trust Certificateholder and the Subordinated Noteholder. The Administrator or
the Owner Trustee shall furnish each Rating Agency notice of such repayment or
redemption.
(c) Notice of repayment or redemption under Section 9.03(b) shall be given
by the Owner Trustee by facsimile or by first-class mail, postage prepaid,
transmitted or mailed at least 30 days prior to the related Payment Date to each
Trust Certificateholder or the Subordinated Noteholder, respectively as of such
date, at such Trust Certificateholder's or the Transferor's address appearing in
the Certificate Register.
All notices of redemption or repayment shall state:
(i) the related Payment Date for the repayment or redemption, as the
case may be;
36
(ii) the Repayment Price or Subordinated Note Redemption Price, as
the case may be;
(iii) the place where the Subordinated Notes to be redeemed or the
Trust Certificates to be repaid, as the case may be, are to be surrendered
for payment of the Subordinated Note Redemption Price or the Repayment
Price, respectively (which shall be the office or agency of the Owner
Trustee to be maintained as provided in Section 3.08); and
(iv) that on the related Payment Date, the Repayment Price or the
Subordinated Note Redemption Price, as the case maybe, will become due and
payable upon each such Trust Certificate or Subordinated Note, as the case
may be, and that interest thereon shall cease to accrue from and after the
related Payment Date.
Notice of redemption of the Subordinated Notes and of repayment of the
Trust Certificates shall be given by the Owner Trustee in the name and at the
expense of the Issuer. Failure to give notice of redemption or repayment, as
the case may be, or any defect therein, to the Subordinated Noteholder or any
Trust Certificateholder shall not impair or affect the validity of the repayment
of any Trust Certificate or redemption of the Subordinated Notes.
(d) The Subordinated Notes to be redeemed shall, following notice of
redemption as required by Section 9.03(c), on the related Payment Date become
due and payable at the Subordinated Note Redemption Price and (unless the Issuer
shall default in the payment of the Subordinated Note Redemption Price) no
interest shall accrue on the Subordinated Note Redemption Price for any period
from and including the related Payment Date. The Trust Certificates to be repaid
shall, following notice of repayment as required by Section 9.03(c) on the
related Payment Date, become due and payable at the Repayment Price and (unless
the Issuer shall default in the payment of the Repayment Price) no interest
shall accrue on the Repayment Price for any period from and including the
related Payment Date.
Article Ten
SUCCESSOR OWNER TRUSTEES AND
ADDITIONAL OWNER TRUSTEES
Section 10.01. Eligibility Requirements for Owner Trustee. The Owner
------------------------------------------
Trustee shall (i) be a corporation satisfying the provisions of Section 3807(a)
of the Business Trust Statute; (ii) at all times be able and authorized to
exercise corporate trust powers; (iii) have a long-term debt rating of "A" or
higher or be otherwise acceptable to each Rating Agency; (iv) have combined
capital and surplus of at least $50,000,000; and (v) be subject to supervision
or examination by federal or state authorities. If the Owner Trustee shall
publish reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purpose of this Section, the combined capital and surplus of the Owner Trustee
shall be deemed to
37
be its combined capital and surplus as set forth in its most recent report of
condition so published. In case at any time the Owner Trustee shall cease to be
eligible in accordance with the provisions of this Section, the Owner Trustee
shall resign immediately in the manner and with the effect specified in Section
10.02.
Section 10.02. Resignation or Removal of Owner Trustee. The Owner Trustee
---------------------------------------
may at any time resign and be discharged from the trusts hereby created by
giving written notice thereof to the Administrator, the Servicer, each Rating
Agency, the Transferor, the Indenture Trustee and the Trust Certificateholders.
Upon receiving such notice of resignation, the Transferor shall promptly appoint
a successor Owner Trustee by written instrument, in duplicate, one copy of which
instrument shall be delivered to the resigning Owner Trustee and one copy to the
successor Owner Trustee. If no successor Owner Trustee shall have been so
appointed and have accepted appointment within 30 days after the giving of such
notice of resignation, the resigning Owner Trustee may petition any court of
competent jurisdiction for the appointment of a successor Owner Trustee.
If at any time the Owner Trustee shall cease to be eligible in accordance
with the provisions of Section 10.01 and shall fail to resign after written
request therefor by the Administrator, the Transferor or Trust
Certificateholders holding not less than a majority of the Certificate Balance,
or if at any time the Owner Trustee shall be legally unable to act, or shall be
adjudged bankrupt or insolvent, or a receiver of the Owner Trustee or of its
property shall be appointed, or any public officer shall take charge or control
of the Owner Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation, then the Transferor or such Trust
Certificateholders may remove the Owner Trustee. If the Owner Trustee shall be
removed pursuant to the preceding sentence, the Transferor shall promptly
appoint a successor Owner Trustee by written instrument, in duplicate, one copy
of which instrument shall be delivered to the outgoing Owner Trustee so removed
and one copy to the successor Owner Trustee.
Any resignation or removal of the Owner Trustee and appointment of a
successor Owner Trustee pursuant to any of the provisions of this Section shall
not become effective until acceptance of appointment by the successor Owner
Trustee pursuant to Section 10.03 and payment of all fees and expenses owed to
the outgoing Owner Trustee. The Transferor shall provide written notice of such
resignation or removal of the Owner Trustee to each Rating Agency. Any
appointment of a successor Owner Trustee is subject to satisfaction of the
Rating Agency Condition.
Section 10.03. Successor Owner Trustee. Any successor Owner Trustee
-----------------------
appointed pursuant to Section 10.02 shall execute, acknowledge and deliver to
the Administrator and to its predecessor Owner Trustee an instrument accepting
such appointment under this Agreement, and thereupon the resignation or removal
of the predecessor Owner Trustee shall become effective and such successor Owner
Trustee, without any further act, deed or conveyance, shall become fully vested
with all the rights, powers, duties and obligations of its predecessor under
this Agreement, with like effect as if originally named as Owner Trustee. The
predecessor Owner Trustee shall, upon payment of its fees and expenses, deliver
to the successor Owner Trustee all documents and statements and monies held by
it under this Agreement; and the Transferor, the
38
Administrator and the predecessor Owner Trustee shall execute and deliver such
instruments and do such other things as may reasonably be required for fully and
certainly vesting and confirming in the successor Owner Trustee all such rights,
powers, duties and obligations.
No successor Owner Trustee shall accept appointment as provided in this
Section unless at the time of such acceptance such successor Owner Trustee shall
be eligible pursuant to Section 10.01.
Upon acceptance of appointment by a successor Owner Trustee pursuant to
this Section, the Transferor shall mail notice of the successor of such Owner
Trustee to all Trust Certificateholders, the Indenture Trustee and each Rating
Agency. If the Transferor shall fail to mail such notice within ten days after
acceptance of appointment by the successor Owner Trustee, the successor Owner
Trustee shall cause such notice to be mailed at the expense of the Transferor.
Section 10.04. Merger or Consolidation of Owner Trustee. Any Person (i)
----------------------------------------
into which the Owner Trustee may be merged or converted or with which it may be
consolidated, (ii) resulting from any merger, conversion or consolidation to
which the Owner Trustee shall be a party or (iii) succeeding to all or
substantially all of the corporate trust business of the Owner Trustee, shall be
the successor of the Owner Trustee hereunder, without the execution or filing of
any instrument or any further act on the part of any of the parties hereto,
provided, that such Person shall be eligible pursuant to Section 10.01 anything
herein to the contrary notwithstanding. The Owner Trustee shall mail notice of
such merger, conversion, or consolidation to each Rating Agency, the Indenture
Trustee and the Trust Certificateholders.
Section 10.05. Appointment of Co-Trustee or Separate Trustee.
---------------------------------------------
Notwithstanding any other provision of this Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Owner Trust Estate may at the time be located, the Transferor and the
Owner Trustee acting jointly shall have the power and shall execute and deliver
all instruments to appoint one or more Persons to act as co-trustee, jointly
with the Owner Trustee, or separate trustee or separate trustees, of all or any
part of the Owner Trust Estate, and to vest in such Person, in such capacity,
such title to the Issuer, or any part thereof, and, subject to the other
provisions of this Section, such powers, duties, obligations, rights and trusts
as the Transferor and the Owner Trustee may consider necessary or desirable. If
the Transferor shall not have joined in such appointment within 15 days after
the receipt by it of a request so to do, the Owner Trustee alone shall have the
power to make such appointment. No co-trustee or separate trustee under this
Agreement shall be required to meet the terms of eligibility as a trustee
pursuant to Section 10.01 and no notice of the appointment of any co-trustee or
separate trustee shall be required pursuant to Section 10.03.
Each separate trustee and co-trustee shall, to the extent permitted by law,
be appointed and act subject to the following provisions and conditions:
39
(a) all rights, powers, duties and obligations conferred or imposed
upon the Owner Trustee shall be conferred upon and exercised or performed
by the Owner Trustee and such separate trustee or co-trustee jointly (it
being understood that such separate trustee or co-trustee is not authorized
to act separately without the Owner Trustee joining in such act), except to
the extent that under any law of any jurisdiction in which any particular
act or acts are to be performed, the Owner Trustee shall be incompetent or
unqualified to perform such act or acts, in which event such rights,
powers, duties and obligations (including the holding of title to the Trust
Estate or any portion thereof in any such jurisdiction) shall be exercised
and performed singly by such separate trustee or co-trustee, but solely at
the direction of the Owner Trustee;
(b) no trustee under this Agreement shall be personally liable by
reason of any act or omission of any other trustee under this Agreement;
and
(c) the Transferor and the Owner Trustee acting jointly may at any
time accept the resignation of or remove any separate trustee or co-
trustee.
Any notice, request or other writing given to the Owner Trustee shall be
deemed to have been given to each of the then separate trustees and co-trustees
as effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article. Each separate trustee and co-trustee, upon its acceptance of
the trusts conferred, shall be vested with the estates or property specified in
its instrument of appointment, either jointly with the Owner Trustee or
separately, as may be provided therein, subject to all the provisions of this
Agreement, specifically including every provision of this Agreement relating to
the conduct of, affecting the liability of, or affording protection to the Owner
Trustee. Each such instrument shall be filed with the Owner Trustee and a copy
thereof given to the Administrator, the Servicer and the Transferor.
Any separate trustee or co-trustee may at any time appoint the Owner
Trustee, its agent or attorney-in-fact with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Owner Trustee, to the extent permitted by law, without the appointment of a new
or successor trustee.
Article Eleven
TAX MATTERS
Section 11.01. Tax and Accounting Characterization.
-----------------------------------
(a) It is the intent of the parties hereto that the Issuer not constitute
a separate entity for federal income tax or state income or franchise tax
purposes. It is the intent of the Transferor, the Senior Noteholders and Trust
Certificateholders that the Senior Notes
40
and the Trust Certificates (other than the Transferor Trust Certificate) be
treated as indebtedness of the Transferor secured by the Specified Vehicles and
the payments on the Specified Leases for federal income tax and state income and
franchise tax purposes. If, however, the Trust Certificates are characterized as
equity in the Issuer and the Issuer is characterized as a separate entity for
federal income tax purposes, it is the intention of the parties that it qualify
as a partnership, with the assets of the partnership being the Owner Trust
Estate and the partners of the partnership being the Trust Certificateholders
(including the Transferor as owner of the Subordinated Notes and the Transferor
Trust Certificate) and the Notes (other than the Subordinated Notes) being debt
of the partnership. The parties agree that, unless otherwise required by
appropriate tax authorities, the Issuer shall not file or cause to be filed
annual returns, reports or other forms and will treat the Issuer in a manner
consistent with the characterization that the Issuer is not a separate entity
for tax purposes.
The Transferor and the Trust Certificateholders, by acceptance of a Trust
Certificate, agree to take no action inconsistent with the tax treatment of the
Trust Certificates (other than the Transferor Trust Certificate) as
indebtedness.
(b) It is the intent of the parties hereto that the Subordinated Notes and
the Transferor Trust Certificate be treated as a direct ownership interest in
the assets of the Issuer for purposes of federal income tax and state income and
franchise tax purposes. If, however, the Issuer is characterized as a separate
entity for federal income tax purposes, it is the intention of the parties that
the Issuer qualify as a partnership for such purposes and the Transferor, as the
holder of the Subordinated Notes and the Transferor Trust Certificate, will be
treated as a partner in such partnership. The Transferor, as Subordinated
Noteholder, agrees to take no action inconsistent with the tax characterization
of the Subordinated Notes and Transferor Trust Certificate as a direct ownership
interest in the assets of the Issuer for all tax purposes.
Section 11.02. Signature on Returns; Tax Matters Partner.
-----------------------------------------
(a) In the event that the Issuer shall be required to file federal or
other income tax returns as a partnership, such returns shall be signed by an
authorized signatory for the Transferor, as holder of the Subordinated Notes and
Transferor Trust Certificate, or such other Person as shall be required by law
to sign such returns of the Issuer.
(b) By acceptance of its beneficial interest in a Trust Certificate, each
Trust Certificateholder agrees that in the event that the Issuer is classified
as a partnership for federal income tax purposes, the Transferor, as holder of
the Transferor Trust Certificate and the Subordinated Notes, shall be the "tax
matters partner" of the Issuer pursuant to the Code.
Section 11.03. Tax Reporting. Unless otherwise required by appropriate
-------------
tax authorities, the Issuer shall not file or cause to be filed annual or other
income or franchise tax returns and shall not be required to obtain any taxpayer
identification number.
41
Article Twelve
MISCELLANEOUS
Section 12.01. Amendments.
----------
(a) This Agreement may be amended by the Transferor and the Owner
Trustee without the consent of any of the Securityholders to cure any ambiguity,
correct or supplement any provision herein that may be inconsistent with any
other provision herein, add any other provisions with respect to matters or
questions arising under this Agreement that are not inconsistent with the
provisions of this Agreement or add or amend any provision herein in connection
with permitting transfers of the Subordinated Notes or the Trust Certificates or
otherwise; provided, however, that such action shall not materially adversely
affect the interests of any Holder of a 2000-A SUBI Certificate (which, so long
as any Senior Notes are outstanding, shall include the Indenture Trustee) or any
Securityholder.
(b) This Agreement may also be amended from time to time by the
Transferor and the Owner Trustee, with prior written notice to the Rating
Agencies and confirmation from each Rating Agency that such amendment would not
cause a Ratings Event, with the consent of the Senior Noteholders holding a
majority of the Outstanding Amount (as such term is defined in the Indenture) of
the Senior Notes and, to the extent affected thereby, the consent of (i) the
Subordinated Noteholder and (ii) Trust Certificateholders holding 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 Senior Noteholders,
the Trust Certificateholders or the Subordinated Noteholder. No such amendment
shall, however, (i) increase or reduce in any manner the amount of, or
accelerate or delay the timing of, distributions that are required to be made on
the Notes or the Trust Certificates or (ii) reduce the percentage of the
Certificate Balance, the Outstanding Amount or the Senior Note Outstanding
Amount required to consent to any such amendment, without the consent of the
holders of 100% of all outstanding Trust Certificates (other than the Transferor
Trust Certificate), and provided, further that an Opinion of Counsel shall be
furnished to the Indenture Trustee and the Owner Trustee to the effect that such
amendment shall not (A) affect the treatment of the Senior Notes or Certificates
(other than the Transferor Trust Certificate) as debt for federal income tax
purposes, (B) be deemed to cause a taxable exchange of the Senior Notes for
federal income tax purposes or (C) cause the Issuer or the 2000-A SUBI
Certificates to be classified as an association (or a publicly traded
partnership) taxable as a corporation for federal income tax purposes. This
Agreement may also be amended or supplemented from time to time, at the request
of Trust Certificateholders holding not less than 75% of the Certificate
Balance, to approve any trust purpose with respect to the Issuer in addition to
the purpose authorized pursuant to Section 2.03(b), upon not less that 90 days
notice to each Rating Agency and each Noteholder and subject to each of (1) the
prior written confirmation by each Rating Agency that such action will not
result in a Rating Event, and (2) the consent of Senior Noteholders holding at
least 75% of the Outstanding Amount (as such term is defined in the Indenture)
of the Senior Notes, or, if the Senior Notes have been paid in
42
full and are no longer outstanding, by the Subordinated Noteholder, and
provided, further that an Opinion of Counsel shall be furnished to the Indenture
Trustee and the Owner Trustee to the effect that such amendment or supplement
shall not affect the treatment of any outstanding Senior Notes or Subordinated
Notes for federal income tax purposes, or cause the Issuer or the 2000-A SUBI
Certificates to be classified as an association (or a publicly traded
partnership) taxable as a corporation for federal income tax purposes.
It shall not be necessary for the consent of Trust Certificateholders, the
Senior Noteholders or the Indenture Trustee 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. The manner of
obtaining such consents (and any other consents of Trust Certificateholders
provided for in this Agreement or in any other Basic Document) and of evidencing
the authorization of the execution thereof by Trust Certificateholders shall be
subject to such reasonable requirements as the Owner Trustee may prescribe.
(c) Notwithstanding Section 12.01(b), this Agreement may be amended at
any time by the parties hereto to the extent reasonably necessary to assure that
none of the Vehicle Trust, the Issuer or the Transferor will be classified as an
association (or a publicly traded partnership) taxable as a corporation for
federal income tax purposes.
(d) Prior to the execution of any amendment to this Agreement or any
other Basic Document, the Owner Trustee shall be entitled to receive and rely
upon an Opinion of Counsel stating that the execution of such amendment is
authorized or permitted by this Agreement and the other Basic Documents and that
all conditions precedent herein and in the other Basic Documents to the
execution and delivery of such amendment have been satisfied. The Owner Trustee
may, but shall not be obligated to, enter into any such amendment which affects
the Owner Trustee's own rights, duties or immunities under this Agreement or
otherwise.
(e) The Owner Trustee shall give the Trust Certificateholders 30 days'
written notice of any proposed amendment or supplement hereto, unless such
amendment or supplement does not materially adversely affect the Trust
Certificateholders or if Senior Noteholder consent is required and this
Agreement provides that the Owner Trustee shall not enter into such amendment
unless a majority of the Certificate Balance of Trust Certificateholders consent
in writing.
Section 12.02. No Legal Title to Owner Trust Estate. Neither the Trust
------------------------------------
Certificateholders nor the Subordinated Noteholder shall have legal title to any
part of the Owner Trust Estate. The Trust Certificateholders and the
Subordinated Noteholder shall be entitled to receive distributions with respect
to their Trust Certificates or Subordinated Notes, as the case may be, only in
accordance with Articles Five and Nine. No transfer, by operation of law or
otherwise, of any right, title or interest of (i) the Trust Certificateholders
to and in their ownership interest in the Owner Trust Estate or (ii) the
Subordinated Noteholder to and in the Subordinated Notes shall operate to
terminate this Agreement or the trusts hereunder or entitle any transferee to an
accounting or to the transfer to it of legal title to any part of the Owner
Trust Estate.
43
Section 12.03. Limitations on Rights of Others. Except for Section 2.07,
-------------------------------
the provisions of this Agreement are solely for the benefit of the Owner
Trustee, the Transferor, the Trust Certificateholders, the Administrator, the
Servicer, the Indenture Trustee and the Noteholders, and nothing in this
Agreement (other than Section 2.07), 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 12.04. Notices. All demands, notices and communications hereunder
-------
shall be in writing and shall be delivered or mailed by registered or certified
first-class United States mail, postage prepaid, hand delivery, prepaid courier
service, or by telecopier, and addressed in each case as follows: (i) if to the
Owner Trustee, at 1100 North Market Street, Wilmington, Delaware 19890
(telecopier no. (302) [ ]), Attention: Corporate Trust Department; (ii)
if to the Transferor, 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, New York 10153 (telecopier no. (212)
310-8007); (iii) if to Moody's, to 99 Church Street, New York, New York 10007,
Attention: ABS Monitoring Group (telecopier no. (212) 553-4600 or (212) 553-
0344); (iv) if to S&P, to Standard & Poor's Ratings Services, 55 Water Street,
New York, New York 10041 (telecopier no. (212) [ ]), Attention: Asset
Backed Monitoring Group; (v) if to Fitch, to Fitch IBCA, One State Street Plaza,
New York, New York 10004, (telecopier no. (212) [ ]), or (vi) at such
other address as shall be designated by any of the foregoing in a written notice
to the other parties hereto. Delivery shall occur only upon receipt or reported
tender of such communication by an officer of the recipient entitled to receive
such notices located at the address of such recipient for notices hereunder.
Any notice required or permitted to be given to a Trust Certificateholder
or the Subordinated Noteholder shall be given by first-class mail, confirmed,
facsimile or overnight courier, postage prepaid, at the address of such Trust
Certificateholder or the Subordinated Noteholder as shown in the Certificate
Register. Any notice so mailed within the time prescribed in this Agreement
shall be conclusively presumed to have been duly given, whether or not such
Trust Certificateholder or the Subordinated Noteholder receives such notice.
Section 12.05. 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 invalidate or render
unenforceable such provision in any other jurisdiction.
Section 12.06. 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.
44
Section 12.07. Successors and Assigns. All covenants and agreements
----------------------
contained herein shall be binding upon, and inure to the benefit of, the
Transferor, the Owner Trustee, each Trust Certificateholder and the Subordinated
Noteholder and their respective successors and permitted assigns, all to the
extent as herein provided. Any request, notice, direction, consent, waiver or
other instrument or action by the Subordinated Noteholder or a Trust
Certificateholder shall bind the successors and assigns of the Transferor or
such Trust Certificateholder.
Section 12.08. No Petition. The Owner Trustee, any Paying Agent, the
-----------
Transferor, each Trust Certificateholder by accepting a Trust Certificate and
the Subordinated Noteholder by accepting the Subordinated Notes, covenant that
they will not institute, or join in instituting, any bankruptcy, reorganization,
arrangement, insolvency or liquidation Proceeding, or other Proceeding under
federal or State bankruptcy or similar laws, against the Transferor or the
Issuer, for a period of one year and a day after:
(a) payment in full of all amounts due to each Holder in respect of
the UTI, the SUBI or any Other SUBI, against any UTI Beneficiary (or any
general partner of a UTI Beneficiary which is a partnership, the Vehicle
Trust and the Vehicle Trustee, without the consent of 100% of the Holders
of the 2000-A Vehicle SUBI, the 2000-A Lease SUBI and each Other SUBI
(excluding the UTI Beneficiaries, the Transferor or any of their respective
Affiliates); and
(b) payment in full of the Offered Securities;
provided, however, that 100% of the Senior Noteholders, or, if no Senior Notes
are then outstanding, the Subordinated Noteholder, or if no Subordinated Notes
are then outstanding, 100% of the Trust Certificateholders (in each case
excluding the Transferor and any of its Affiliates) may at any time institute or
join in instituting any bankruptcy, reorganization, insolvency or liquidation
proceeding against the Transferor or the Issuer.
Section 12.09. No Recourse. Each Trust Certificate and each Subordinated
-----------
Note entitles the holder thereof to the respective rights and benefits set forth
in this Agreement and in the Trust Certificates or the Subordinated Notes, as
applicable. The Trust Certificates and the Subordinated Notes do not represent
interests in or obligations of the Servicer, the Transferor, the Owner Trustee,
any Paying Agent, the Indenture Trustee or any Affiliate thereof and no recourse
may be had against such parties or their assets, except as may be expressly set
forth or contemplated in this Agreement, the Trust Certificates, the
Subordinated Notes or the other Basic Documents.
Section 12.10. 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 12.11. Governing Law. This Agreement shall be construed in
-------------
accordance with the laws of the State of Delaware, without reference to its
conflicts of law
45
provisions, and the obligations, rights and remedies of the parties hereunder
shall be determined in accordance with such laws.
Section 12.12. Certificates Nonassessable and Fully Paid. Subject to
-----------------------------------------
Section 2.07, Trust Certificateholders shall not be personally liable for
obligations of the Issuer. The interests represented by the Trust Certificates
shall be nonassessable for any losses or expenses of the Issuer or for any
reason whatsoever, and, upon authentication thereof pursuant to Section 3.03,
3.04 and 3.05, the Trust Certificates shall be deemed fully paid.
46
IN WITNESS WHEREOF, the parties hereto have caused this Amended and
Restated Trust Agreement to be duly executed by their respective officers
hereunto duly authorized, as of the day and year first above written.
BMW AUTO LEASING LLC,
as Transferor
By: BMW FINANCIAL SERVICES NA, LLC,
as Managing Member
By:
--------------------------------
Name:
Title:
By:
--------------------------------
Name:
Title:
WILMINGTON TRUST COMPANY,
as Owner Trustee
By:
------------------------------------
Name:
Title:
47
EXHIBIT A
FORM OF TRUST CERTIFICATE
SEE REVERSE FOR CERTAIN DEFINITIONS
[TO BE INSERTED ON TRUST CERTIFICATES OTHER THAN THE TRANSFEROR TRUST
CERTIFICATE:
THIS TRUST CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR UNDER ANY STATE
SECURITIES OR BLUE SKY LAW. THE HOLDER HEREOF, BY PURCHASING THIS TRUST
CERTIFICATE, AGREES THAT THIS TRUST CERTIFICATE MAY BE REOFFERED, RESOLD,
PLEDGED OR OTHERWISE TRANSFERRED ONLY IN COMPLIANCE WITH THE SECURITIES ACT AND
OTHER APPLICABLE LAWS AND ONLY PURSUANT TO RULE 144A UNDER THE SECURITIES ACT
("RULE 144A") TO AN INSTITUTIONAL INVESTOR THAT THE HOLDER REASONABLY BELIEVES
IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A (A "QIB"),
PURCHASING FOR ITS OWN ACCOUNT OR A QIB PURCHASING FOR THE ACCOUNT OF A QIB, IN
EACH CASE WHOM THE HOLDER HAS INFORMED THAT THE REOFFER, RESALE, PLEDGE OR OTHER
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A SUBJECT TO THE RECEIPT BY THE
OWNER TRUSTEE AND THE TRANSFEROR OF A LETTER SUBSTANTIALLY IN THE FORM PROVIDED
IN THE TRUST AGREEMENT AND THE RECEIPT BY THE OWNER TRUSTEE AND THE TRANSFEROR
OF SUCH OTHER EVIDENCE ACCEPTABLE TO THE OWNER TRUSTEE AND THE TRANSFEROR THAT
SUCH REOFFER, RESALE, PLEDGE OR TRANSFER IS IN COMPLIANCE WITH THE SECURITIES
ACT AND OTHER APPLICABLE LAWS OR IN EACH CASE IN ACCORDANCE WITH ALL APPLICABLE
SECURITIES LAWS OF THE UNITED STATES AND SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES AND ANY OTHER APPLICABLE JURISDICTION. THIS TRUST CERTIFICATE MAY
NOT BE PURCHASED OR HELD WITH PLAN ASSETS OF ANY "EMPLOYEE BENEFIT PLAN" WHICH
IS SUBJECT TO THE REQUIREMENTS OF TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED, OR ANY PLAN COVERED BY SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (EACH A "BENEFIT PLAN"). BY
ACCEPTANCE OF THIS TRUST CERTIFICATE OR AN INTEREST THEREIN, THE HOLDER HEREOF
SHALL BE DEEMED TO REPRESENT AND WARRANT THAT ITS ACQUISITION AND HOLDING IS IN
COMPLIANCE WITH THE FOREGOING RESTRICTION ON BENEFIT PLAN ASSETS.
THIS TRUST CERTIFICATE IS NOT TRANSFERABLE UNLESS THE PARTY TRANSFERRING
THIS TRUST CERTIFICATE (EXCEPTING TRANSFERS BY THE INITIAL PURCHASER) DELIVERS
TO THE OWNER TRUSTEE, THE TRANSFEROR, AND CHASE MANHATTAN BANK DELAWARE., AS
TRUSTEE
A-1
OF FINANCIAL SERVICES VEHICLE TRUST (THE "VEHICLE TRUST"), AN OPINION OF
COUNSEL STATING THE CIRCUMSTANCES AND CONDITIONS UPON WHICH THIS TRUST
CERTIFICATE MAY BE TRANSFERRED AND THAT SUCH TRANSFER AS DESCRIBED THEREIN WILL
NOT CAUSE EITHER THE ISSUER OR THE VEHICLE TRUST TO BE CLASSIFIED AS AN
ASSOCIATION (OR A PUBLICLY TRADED PARTNERSHIP) TAXABLE AS A CORPORATION FOR
FEDERAL INCOME TAX PURPOSES.
[TO BE INSERTED ON THE TRANSFEROR TRUST CERTIFICATE:
THIS TRUST CERTIFICATE IS NOT TRANSFERABLE EXCEPT IN THE EVENT OF THE
DISSOLUTION, TERMINATION OR BANKRUPTCY OF BMW AUTO LEASING LLC WHEN IT IS HOLDER
HEREOF AND CANNOT BE TRANSFERRED UNLESS SIMULTANEOUSLY THE TRANSFEREE IS
ACQUIRING ALL OF THE TRUST'S SUBORDINATED NOTES, AND ANY TRANSFER IN VIOLATION
OF THIS PROVISION SHALL BE NULL AND VOID.]
THE PRINCIPAL OF THIS TRUST CERTIFICATE IS DISTRIBUTABLE AS SET FORTH IN
THE TRUST AGREEMENT. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS
TRUST CERTIFICATE AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE
HEREOF.
BMW VEHICLE LEASE TRUST 2000-A
[ ]% ASSET BACKED CERTIFICATE
evidencing a beneficial interest in the Issuer, as defined below, the property
of which includes, among other things, the 2000-A Vehicle SUBI Certificate
(transferred pursuant to the Issuer SUBI Certificate Transfer Agreement),
evidencing a beneficial interest in the 2000-A Vehicle SUBI Assets. The
property of the Issuer has been pledged to the Indenture Trustee pursuant to the
Indenture to secure the payment of the Senior Notes issued thereunder.
This Trust Certificate does not represent an interest in or obligation of
the Transferor, BMW Financial Services NA, LLC, the Owner Trustee or any of
their respective Affiliates, except to the extent described below.
A-2
NUMBER $__________
R-_____ CUSIP NO. ______
This certifies that ____________________ is the registered owner of a
____________________ dollar nonassessable, fully-paid, beneficial ownership
interest in the BMW Vehicle Lease Trust 2000-A (the "Issuer") formed by BMW Auto
Leasing LLC, a Delaware limited liability company (the "Transferor").
The Issuer was created pursuant to a trust agreement, as amended and
restated as of November 1, 2000 (the "Trust Agreement"), between the Transferor
and Wilmington Trust Company, as trustee (the "Owner Trustee"), a summary of
certain of the pertinent provisions of which is set forth below. Capitalized
terms used herein that are not otherwise defined shall have the meanings
assigned thereto in the Trust Agreement.
This Trust Certificate is one of the duly authorized Trust Certificates
designated as "[ ]% Asset Backed Certificates" (the "Trust Certificates"). Also
issued under the Trust Agreement are the [ ]% Asset Backed Subordinated Notes
(the "Subordinated Notes"). Also issued under an indenture, dated as of November
1, 2000 (the "Indenture"), between the Issuer and The Chase Manhattan Bank, as
trustee (the "Indenture Trustee"), are the [ ]% Senior Notes. This Trust
Certificate is issued under and is subject to the terms, provisions and
conditions of the Trust Agreement, to which Trust Agreement the holder of this
Trust Certificate by virtue of the acceptance hereof assents and by which such
Trust Certificateholder is bound. The property of the Issuer primarily includes,
among other things, (i) the [ ]% 2000-A Vehicle SUBI Certificate (transferred
pursuant to the Issuer SUBI Certificate Transfer Agreement), evidencing a [ ]%
beneficial interest in the 2000-A Vehicle SUBI Assets, (ii) the rights of the
Issuer under the Program Operating Lease, (iii) the security interest of the
Issuer in the 2000-A Lease SUBI, the Subordinated Notes and the Reserve Fund
Property and (iv) all proceeds of the foregoing. The rights of the Issuer in the
foregoing property have been pledged by the Issuer to the Indenture Trustee to
secure the payment of the Senior Notes.
The Trust Certificates represent obligations of the Issuer only and do not
represent interests in, recourse to or obligations of the Transferor, the UTI
Beneficiaries or any of their respective Affiliates.
Under the Trust Agreement, there will be distributed on the 25th of each
month (or, if such day is not a Business Day, the next Business Day), commencing
December 26, 2000 (each, a "Payment Date"), and ending no later than [ ],
to the Person in whose name this Trust Certificate is registered at the close of
business on the day preceding each Payment Date (each, a "Record Date") such
Trust Certificateholder's percentage interest in the amount to be distributed
with respect to the Trust Certificates on such Payment Date and any remaining
amounts shall be distributed to the Transferor as holder of the Transferor Trust
Certificate pursuant to the terms of the Basic Documents.
The holder of this Trust Certificate acknowledges and agrees that its
rights to receive payments in respect of this Trust Certificate are subordinated
to the rights of the
A-3
Senior Noteholders as described in the Indenture and the Subordinated Noteholder
as described in the Trust Agreement, as applicable.
It is the intent of the Transferor and Trust Certificateholders that the
Trust Certificates be treated as indebtedness of the Transferor for purposes of
federal income tax or State income and franchise taxes. If, however, the Issuer
is characterized as a separate entity for federal income tax purposes, it is the
intention of the parties to the Trust Agreement that it qualify as a partnership
for such purposes and the Trust Certificateholders will be treated as partners
in that partnership. The Transferor and the other Trust Certificateholders, by
acceptance of a Trust Certificate, agree to take no action inconsistent with
such tax treatment of the Trust Certificates.
Each Trust Certificateholder by accepting a Trust Certificate, covenants
and agrees that they will not institute, or join in instituting, any bankruptcy,
reorganization, arrangement, insolvency or liquidation Proceeding, or other
Proceeding under federal or State bankruptcy or similar laws for a period of one
year and a day after:
(a) payment in full of all amounts due to each Holder in respect of
the UTI, the SUBI or any Other SUBI, against any UTI Beneficiary (or any
general partner of a UTI Beneficiary which is a partnership, the Vehicle
Trust and the Vehicle Trustee, without the consent of 100% of the Holders
of the 2000-A Vehicle SUBI, the 2000-A Lease SUBI and each Other SUBI
(excluding the UTI Beneficiaries, the Transferor or any of their respective
Affiliates); and
(b) payment in full of the Offered Securities, against the Transferor
or the Issuer; provided, however, that 100% of the Senior Noteholders, or,
if no Senior Notes are then outstanding, or, if no Senior Notes are then
outstanding, the Subordinated Noteholder, or if no Subordinated Notes are
outstanding, 100% of the Trust Certificateholders (in each case excluding
the Transferor and any of its Affiliates) may at any time institute or join
in instituting any bankruptcy, reorganization, insolvency or liquidation
proceeding against the Transferor or the Issuer.
Distributions on this Trust Certificate will be made as provided in the
Trust Agreement by the Owner Trustee by check mailed to the Trust
Certificateholder of record in the Certificate Register without the presentation
or surrender of this Trust Certificate or the making of any notation hereon.
Except as otherwise provided in the Trust Agreement and notwithstanding the
above, the final payment on this Trust Certificate will be made after due notice
by the Owner Trustee of the pendency of such payment and only upon presentation
and surrender of this Trust Certificate at the office or agency maintained for
the purpose by the Owner Trustee in The City of New York.
Reference is hereby made to the further provisions of this Trust
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
A-4
Unless the certificate of authentication hereon shall have been executed by
an authorized officer of the Owner Trustee, by manual signature, this Trust
Certificate shall not entitle the holder hereof to any benefit under the Trust
Agreement or be valid for any purpose.
THIS TRUST CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS CONFLICTS OF LAW PROVISIONS, AND
THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS.
IN WITNESS WHEREOF, the Owner Trustee, on behalf of the Issuer and not in
its individual capacity, has caused this Trust Certificate to be duly executed.
Dated: ________________________ BMW VEHICLE LEASE TRUST 2000-A
By: WILMINGTON TRUST COMPANY,
as Owner Trustee
By:___________________________
Name:
Title:
OWNER TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Trust Certificates referred to in the within-mentioned Trust
Agreement.
WILMINGTON TRUST COMPANY, or WILMINGTON TRUST COMPANY,
as Owner Trustee as Owner Trustee
By:________________________ By: THE CHASE MANHATTAN BANK,
Authenticating Agent
By:___________________________
A-5
[Reverse of Trust Certificate]
The Trust Certificates do not represent an obligation of or an interest in
the Transferor, the Servicer, the Owner Trustee or any of their respective
Affiliates, and no recourse may be had against such parties or their assets,
except as may be expressly set forth or contemplated herein or in the Trust
Agreement or the other Basic Documents. In addition, this Trust Certificate is
not guaranteed by any governmental agency or instrumentality and is limited in
right of payment to certain collections and recoveries and certain other amounts
respecting the assets of the Issuer, all as more specifically set forth in the
Indenture. The Transferor will furnish, upon the request of any holder of a
Trust Certificate, such information as is specified in paragraph (d)(4) of Rule
144A of the Securities Act of 1933, as amended, with respect to the Issuer.
The Trust Agreement may be amended by the Transferor and the Owner Trustee,
in some cases without the consent of any of the Securityholders in the manner
set forth therein, and any such amendment will bind each holder and transferee
of the certificates.
As provided in the Trust Agreement, and if the Transferor delivers an
Opinion of Counsel that the Trust Certificates are transferable in accordance
with the terms set forth therein, which opinion the Transferor has not
determined can be given under the Internal Revenue Code and existing and
proposed regulations thereunder, the transfer of this Trust Certificate is
registerable in the Certificate Register upon surrender of this Trust
Certificate for registration of transfer at the offices or agencies of the
Certificate Registrar maintained by the Owner Trustee in the Borough of
Manhattan, The City of New York, accompanied by a written instrument of transfer
in form satisfactory to the Owner Trustee and the Certificate Registrar duly
executed by the Trust Certificateholder hereof or such Trust Certificateholder's
attorney duly authorized in writing, and thereupon one or more new Trust
Certificates of the same class and in authorized denominations evidencing the
same aggregate interest in the Issuer will be issued to the designated
transferee. The initial Certificate Registrar appointed under the Trust
Agreement is The Chase Manhattan Bank.
The Trust Certificates are issuable only as registered Trust Certificates
without coupons in minimum denominations of $1,000,000 or integral multiples of
$1,000 in excess thereof. As provided in the Trust Agreement and subject to
certain limitations therein set forth, Trust Certificates are exchangeable for
new Trust Certificates of authorized denominations evidencing the same aggregate
denomination, as requested by the Holder surrendering the same. No service
charge will be made for any such registration of transfer or exchange, but the
Owner Trustee or the Certificate Registrar may require payment of a sum
sufficient to cover any tax or governmental charge payable in connection
therewith.
The Owner Trustee, the Certificate Registrar and any agent of the Owner
Trustee or the Certificate Registrar may treat the Person in whose name this
Trust Certificate is registered as the owner hereof for all purposes, and none
of the Owner Trustee, the Certificate Registrar or any such agent shall be
affected by any notice to the contrary.
A-6
The obligations and responsibilities created by the Trust Agreement and the
trust created thereby shall terminate upon the payment to Trust
Certificateholders of all amounts required to be paid to them pursuant to the
Trust Agreement and the Indenture and the disposition of all property held as
part of the Owner Trust Estate.
Any prospective transferee of a Trust Certificate will be required to
deliver a letter to the Transferor, the Certificate Registrar and the Initial
Purchaser substantially in the form of Exhibit D to the Trust Agreement, which
letter includes a representation that such prospective transferee is not a
Benefit Plan Investor. The Trust Certificates may not be transferred, sold,
pledged or otherwise disposed to or for the account of a Benefit Plan Investor.
The Trust Certificates may not be acquired by a Benefit Plan. By accepting
and holding this Trust Certificate, the holder hereof shall be deemed to have
represented and warranted that it is not a Benefit Plan and is not acquiring
this Trust Certificate or an interest therein for the account of a Benefit Plan.
A-7
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or type name and address, including postal zip code, of assignee)
the within Trust Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing ______________________________ attorney to transfer
said Trust Certificate on the books of the Certificate Registrar, with full
power of substitution in the premises.
Dated: _________________________
______________________________________*
Signature Guaranteed:
______________________________________*
* NOTICE: The signatures(s) on this Assignment must correspond with the name(s)
as written on the face of the within Trust Certificate in every particular
without alteration, enlargement or any change whatsoever. Such signature must
be guaranteed by a member firm of the New York Stock Exchange or a commercial
bank or trust company.
A-8
EXHIBIT B
FORM OF SUBORDINATED NOTE
THIS SUBORDINATED NOTE MAY NOT BE TRANSFERRED
BMW VEHICLE LEASE TRUST 2000-A
[ ]% ASSET BACKED SUBORDINATED NOTE
BMW Vehicle Lease Trust 2000-A (the "Issuer"), a trust created pursuant to
a trust agreement, as amended and restated as of November 1, 2000 (the "Trust
Agreement") between BMW Auto Leasing LLC, as Transferor (the "Transferor"), and
Wilmington Trust Company, as trustee (the "Owner Trustee"), for value received,
hereby promises to pay to the Transferor, upon presentation and surrender of
this Subordinated Note the principal sum of $[ ] Dollars on
[ ], or earlier, all in accordance with the Trust Agreement. The
Issuer will pay interest on this Subordinated Note at the rate per annum shown
above on each Payment Date until the principal of this Subordinated Note is paid
or made available for payment, on the principal amount of this Subordinated Note
outstanding on the preceding Payment Date (after giving effect to all payments
of principal made on such preceding Payment Date) in accordance with the Trust
Agreement. To the extent that interest on this Subordinated Note is accrued but
not paid in full on any Payment Date, such overdue interest will be due on the
next Payment Date together with interest on such amount (to the extent lawful)
at the Subordinated Note Rate.
The holder of this Subordinated Note acknowledges and agrees that its
rights to receive payments in respect of this Subordinated Note are subordinated
to the rights of the Senior Noteholders to the extent described in the Indenture
and the Trust Agreement.
Unless the certificate of authentication hereon has been executed by the
Owner Trustee whose name appears below by manual signature, this Subordinated
Note shall not be entitled to any benefit under the Trust Agreement or be valid
or obligatory for any purpose.
THIS SUBORDINATED NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS CONFLICTS OF LAW PROVISIONS, AND
THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS.
B-1
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed,
manually or in facsimile, by its Authorized Officer as of the date set forth
below.
Dated: ________________________
BMW VEHICLE LEASE TRUST 2000-A
By: WILMINGTON TRUST COMPANY,
as Owner Trustee
By:______________________________
Name:
Title:
OWNER TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Subordinated Notes referred to in the within-mentioned Trust
Agreement.
WILMINGTON TRUST COMPANY, or WILMINGTON TRUST COMPANY,
as Owner Trustee as Owner Trustee
By: THE CHASE MANHATTAN BANK,
Authenticating Agent
By:__________________________
By:____________________________
B-2
EXHIBIT C
FORM OF RULE 144A CERTIFICATE
Dated:
BMW Auto Leasing LLC
c/o BMW Financial Services NA, LLC
its Managing Member
300 Chestnut Ridge Road
Woodcliff Lake, New Jersey 07675
Wilmington Trust Company,
as Owner Trustee
1100 North Market Street
Wilmington, Delaware 19890
[The Chase Manhattan Bank,
as Certificate Registrar
55 Water Street
New York, New York]
Ladies and Gentlemen:
This is to notify you as to the transfer of $____________ initial principal
balance of ____% Asset Backed Certificates (the "Trust Certificates") of BMW
Vehicle Lease Trust 2000-A (the "Issuer").
The undersigned is the holder of the Trust Certificates and with this
notice hereby deposits with the Owner Trustee $____________ initial principal
balance of Trust Certificates and requests that Trust Certificates in the same
initial principal balance be issued, executed and authenticated and registered
to the purchaser on ____________, 2000 as specified in the Trust Agreement, as
follows:
Name: Denominations:
Address:
Taxpayer I.D. No:
The undersigned represents and warrants that the undersigned (a) reasonably
believes the purchaser is a "qualified institutional buyer," as defined in Rule
144A under the Securities Act of 1933, as amended (the "Act"), (b) such
purchaser has acquired the Trust Certificates in a transaction effected in
accordance with the exemption from the registration requirements of the Act
provided by Rule 144A and (c) if the purchaser has purchased the Trust
Certificates for one or more accounts for which it is acting as fiduciary or
agent, (i) each such account is a qualified institutional buyer and (ii) the
purchaser is acquiring Trust Certificates for its own account or for one or more
C-1
institutional accounts for which it is acting as fiduciary or agent in a minimum
amount equivalent to not less than $1,000,000 for each such account.
Very truly yours,
______________________________________________
By:______________________________
Name:
Title:
C-2
EXHIBIT D
FORM OF INVESTMENT LETTER
QUALIFIED INSTITUTIONAL BUYER
Dated:
The Chase Manhattan Bank,
as Indenture Trustee
[ ]
[ ]
[ ]
Wilmington Trust Company,
as Owner Trustee
1100 North Market Street
Wilmington, Delaware 19890
[ ]
[ ]
as Initial Purchaser
[ ]
[ ]
BMW Auto Leasing LLC
c/o BMW Financial Services NA, LLC
its Managing Member
300 Chestnut Ridge Road
Woodcliff Lake, New Jersey 07675
Ladies and Gentlemen:
In connection with our proposed purchase of $__________________ aggregate
principal amount of Certificates (the "Certificates") representing an undivided
interest in the BMW Vehicle Lease Trust 2000-A (the "Trust"), the investor on
whose behalf the undersigned is executing this letter (the "Purchaser") confirms
that:
1. Reference is made to the Offering Circular, dated [ ] (the
"Offering Circular"), relating to the Certificates. Capitalized terms used
herein that are not otherwise defined shall have the meanings ascribed thereto
in the Offering Circular. The Purchaser has received a copy of the Offering
Circular and such other information as the Purchaser deems necessary in order to
make its investment decision and the Purchaser has been provided the opportunity
to ask questions of, and receive answers from, the Servicer and BMW Auto Leasing
LLC, as the Transferor, concerning the Servicer, the UTI Beneficiary and the
Transferor and the terms and conditions of the offering described in the
Offering Circular. The Purchaser has received and understands the above, and
understands that substantial risks are involved in an investment in the
D-1
Certificates. The Purchaser represents that in making its investment decision to
acquire the Certificates, the Purchaser has not relied on representations,
warranties, opinions, projections, financial or other information or analysis,
if any, supplied to it by any person, including you, the Servicer, the
Transferor or the Owner Trustee or any of your or their affiliates, except as
expressly contained in the Offering Circular and in the other written
information, if any, discussed above. The Purchaser acknowledges that it has
read and agreed to the matters stated on pages (i) to (v) of such Offering
Circular and the information under the heading "Notice to Investors", including
the restrictions on duplication and circulation of such Offering Circular. The
Purchaser has such knowledge and experience in financial and business matters as
to be capable of evaluating the merits and risks of an investment in the
Certificates, and the Purchaser is able to bear the substantial economic risks
of such an investment. The Purchaser has relied upon its own tax, legal and
financial advisors in connection with its decision to purchase the Certificates.
2. The Purchaser is (A) a "Qualified Institutional Buyer" (as defined in
Rule 144A under the Securities Act of 1933, as amended (the "1933 Act")) and has
delivered to you a certificate substantially in the form attached hereto as
Annex I or Annex 2, as applicable and (B) acquiring the Certificates for its own
account or for the account of an investor of the type described in clause (A)
above as to each of which the Purchaser exercises sole investment discretion.
The Purchaser is purchasing the Certificates for investment purposes and not
with a view to, or for, the offer or sale in connection with, a public
distribution or in any other manner that would violate the 1933 Act or the
securities or blue sky laws of any state.
3. The Purchaser understands that the Certificates have not been and will
not be registered under the 1933 Act or under the securities or blue sky laws of
any state, and that (i) if it decides to resell, pledge or otherwise transfer
any Certificate, such Certificate may be resold, pledged or transferred without
registration only to an entity that has delivered to the Transferor and the
Owner Trustee a certification that it is a Qualified Institutional Buyer that
purchases (1) for its own account or (2) for the account of such a Qualified
Institutional Buyer, that is, in either case, aware that the resale, pledge or
transfer is being made in reliance on said Rule 144A and (ii) it will, and each
subsequent holder will be required to, notify any purchaser of any Certificate
from it of the resale restrictions referred to in clause (i) above.
4. The Purchaser understands that each of Certificate will bear a legend
to the following effect, unless otherwise agreed by the Transferor and the Owner
Trustee:
"THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), OR UNDER ANY STATE SECURITIES OR BLUE SKY LAW. THE
HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT
THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR
OTHERWISE TRANSFERRED ONLY IN
(99-A)
D-2
COMPLIANCE WITH THE SECURITIES ACT AND OTHER APPLICABLE
LAWS AND ONLY PURSUANT TO RULE 144A UNDER THE SECURITIES
ACT ("RULE 144A") TO AN INSTITUTIONAL INVESTOR THAT THE
HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL
BUYER WITHIN THE MEANING OF RULE 144A (A "QIB"), PURCHASING
FOR ITS OWN ACCOUNT OR A QIB PURCHASING FOR THE ACCOUNT OF
A QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE, THAT THE
REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A SUBJECT TO THE RECEIPT BY THE
TRANSFEROR AND THE OWNER TRUSTEE OF A LETTER SUBSTANTIALLY
IN THE FORM PROVIDED IN THE TRUST AGREEMENT AND THE RECEIPT
BY THE OWNER TRUSTEE AND THE TRANSFEROR OF SUCH OTHER
EVIDENCE ACCEPTABLE TO THE OWNER TRUSTEE AND THE TRANSFEROR
THAT SUCH REOFFER, RESALE, PLEDGE OR TRANSFER IS IN
COMPLIANCE WITH THE SECURITIES ACT AND OTHER APPLICABLE LAWS
OR IN EACH CASE IN ACCORDANCE WITH ALL APPLICABLE SECURITIES
LAWS OF THE UNITED STATES AND SECURITIES LAWS OF ANY STATE
OF THE UNITED STATES AND ANY OTHER APPLICABLE JURISDICTION.
THIS CERTIFICATE MAY NOT BE PURCHASED OR HELD WITH PLAN
ASSETS OF ANY "EMPLOYEE BENEFIT PLAN" WHICH IS SUBJECT TO
THE REQUIREMENTS OF TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED, OR ANY PLAN COVERED BY
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED
(EACH, A "BENEFIT PLAN"). BY ACCEPTANCE OF THIS CERTIFICATE
OR AN INTEREST THEREIN, THE HOLDER HEREOF SHALL BE DEEMED TO
REPRESENT AND WARRANT THAT ITS ACQUISITION AND HOLDING IS IN
COMPLIANCE WITH THE FOREGOING RESTRICTION ON BENEFIT PLAN
ASSETS."
5. If the Purchaser is acquiring any Certificate as a fiduciary or agent
for one or more investor accounts, it has sole investment discretion with
respect to each such account and that it has full power to make the
acknowledgements, representations and agreements contained herein on behalf of
such account.
(99-A)
D-3
6. The purchaser is not (a) an employee benefit plan (as defined in
Section 3(3) of ERISA) that is subject to the provisions of Title I of ERISA,
(b) a plan described in Section 4975(e)(1) of the Code or (c) any entity whose
underlying assets include plan assets by reason of a plan's investment in such
entity (each, a "Benefit Plan").
7. The Purchaser has neither acquired nor will it transfer any Certificate
it purchases (or any interest therein) or cause any such Certificates (or any
interest therein) to be marketed on or through an "established securities
market" within the meaning of Section 7704(b)(1) of the Code, including, without
limitation, an over-the-counter-market or an interdealer quotation system that
regularly disseminates firm buy or sell quotations.
8. The Purchaser either (A) is not, and will not become, a partnership,
Subchapter S corporation or grantor trust for U.S. federal income tax purposes
or (B) is such an entity, but none of the direct or indirect beneficial owners
of any of the interests in such transferee have allowed or caused, or will allow
or cause, 50% or more (or such other percentage as the Transferor may establish
prior to the time of such proposed transfer) of the value of such interests to
be attributable to such transferee's ownership of Certificates.
9. The Purchaser understands that no subsequent transfer of the
Certificates is permitted unless (A) such transfer is of a Certificate with a
denomination of at least $1,000,000, (B) it causes its proposed transferee to
provide to the Transferor, the Certificate Registrar and the Initial Purchaser a
letter substantially in the form of Exhibit D to the Trust Agreement, as
applicable, or such other written statement as the Transferor shall prescribe
and (C) the Transferor consents in writing to the proposed transfer, which
consent shall be granted unless the Transferor determines that such transfer
would create a risk that the Issuer or the Vehicle Trust would be classified for
federal or any applicable state tax purposes as an association (or a publicly
traded partnership) taxable as a corporation; provided, however, that any
attempted transfer that would either cause (1) the number of registered holders
of Certificates and Subordinated Notes to exceed 100 or (2) the number of
holders of direct or indirect interests in the Vehicle Trust to exceed 50, shall
be a void transfer.
10. The Purchaser understands that the opinion of counsel to the Issuer
that the Issuer is not a publicly traded partnership taxable as a corporation is
dependent in part on the accuracy of the representations in paragraphs 7, 8 and
9 above.
11. The Purchaser is a Person who is either (A)(1) a citizen or resident
of the United States, (2) a corporation, partnership or other entity organized
in or under the laws of the United States or any political subdivision thereof
or (3) a Person not described in (A)(1) or (2) whose ownership of the
Certificates is effectively connected with such Person's conduct of a trade or
business within the United States (within the meaning of the Code) and its
ownership of any interest in a Certificate will not result in any withholding
obligation with respect to any payments with respect to the Certificates by any
Person (other than withholding, if any, under Section 1446 of the Code) or (B)
an estate the income of which is includible in gross income for federal income
tax purposes regardless of source or a trust if the court within the United
States is able to exercise
(99-A)
D-4
primary supervision of the administration of the trust and one or more United
States persons have the authority to control all substantial decisions of the
Issuer. It agrees that it will provide a certification of non-foreign status
signed under penalty of perjury and, alternatively, that if it is a Person
described in clause (A)(3) above, it will furnish to the Transferor and the
Owner Trustee a properly executed IRS Form W-8ECI and a new IRS Form W-8ECI upon
the expiration or obsolescence of any previously delivered form (and such other
certifications, representations or Opinions of Counsel as may be requested by
the Transferor and the Owner Trustee).
12. The Purchaser agrees that if at some time in the future it wishes to
transfer or exchange any of the Certificates, it will not transfer or exchange
any of the Certificates unless such transfer or exchange is in accordance with
Section 3.04 of the Trust Agreement. The Purchaser understands that any
purported transfer of the Certificates (or any interest therein) in
contravention of any of the restrictions and conditions in the Trust Agreement,
as applicable, shall be a void, and the purported transferee in such transfer
shall not be recognized by the Issuer or any other Person as a
Certificateholder, as the case may, be for any purpose.
13. The Purchaser hereby irrevocably requests you to arrange for
definitive Certificates representing the Certificates purchased by the Purchaser
to be registered and delivered promptly after the Closing Date as follows:
Principal Amount Registered in Deliver Definitive
of Definitive Certificate: Name of: Certificate to:
- -------------------------- ------------- ------------------
- -------------------------- ------------- ------------------
- -------------------------- ------------- ------------------
- -------------------------- ------------- ------------------
(99-A)
D-5
You and the Owner Trustee are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceeding or official inquiry with respect
to the matters covered hereby.
Very truly yours,
By:_______________________________
Name:
Title:
(99-A)
D-6
ANNEX 1 TO EXHIBIT D
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees Other Than Registered Investment Companies]
The undersigned (the "Purchaser") hereby certifies as follows to the
addressees of the Rule 144A Representation Letter to which this certification is
attached with respect to the Certificate described therein:
(i) As indicated below, the undersigned is the President, Chief
Financial Officer, Senior Vice President or other executive officer of the
Purchaser.
(ii) In connection with purchases by the Purchaser, the Purchaser is
a "qualified institutional buyer" as that term is defined in Rule 144A
("Rule 144A") under the Securities Act of 1933, as amended, because (i) the
Purchaser owned and/or invested on a discretionary basis $__________/1/ in
securities (except for the excluded securities referred to below) as of the
end of the Purchaser's most recent fiscal year (such amount being
calculated in accordance with Rule 144A) and (ii) the Purchaser satisfies
the criteria in the category marked below.
___ Corporation, etc. The Purchaser is a corporation (other
than a bank, savings and loan association or similar
institution), Massachusetts or similar business trust,
partnership, or charitable organization described in
Section 501(c)(3) of the Internal Revenue Code of 1986, as
amended.
___ Bank. The Purchaser (a) is a national bank or banking
institution organized under the laws of any state,
territory or the District of Columbia, the business of
which is substantially confined to banking and is
supervised by the state or territorial banking commission
or similar official or is a foreign bank or equivalent
institution, and (b) has an audited net worth of at least
$25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached hereto.
___ Savings and Loan. The Purchaser (a) is a savings and loan
association, building and loan association, cooperative
bank, homestead association or similar institution, which
is supervised and examined by a state or federal authority
having supervision over any such institutions or is a
foreign
- ---------------------
/1/ Purchaser must own and/or invest on a discretionary basis at least
$100,000,000 in securities unless Purchaser is a dealer, and, in that case,
Purchaser must own and/or invest on a discretionary basis at least $10,000,000
in securities.
D-7
savings and loan association or equivalent institution and
(b) has an audited net worth of at least $25,000,000 as
demonstrated in its latest annual financial statements, a
copy of which is attached hereto.
___ Broker-dealer. The Purchaser is a dealer registered
pursuant to Section 15 of the Securities Exchange Act of
1934, as amended (the "Exchange Act").
___ Insurance Company. The Purchaser is an insurance company
whose primary and predominant business activity is the
writing of insurance or the reinsuring of risks
underwritten by insurance companies and which is subject
to supervision by the insurance commissioner or a similar
official or agency of a state, territory or the District
of Columbia.
___ State or Local Plan. The Purchaser is a plan established
and maintained by a state, its political subdivisions, or
any agency or instrumentality of the state or its
political subdivisions, for the benefit of its employees.
___ ERISA Plan. The Purchaser is an employee benefit plan
within the meaning of Title I of the Employee Retirement
Income Security Act of 1974.
___ Investment Advisor. The Purchaser is an investment
advisor registered under the Investment Advisors Act of
1940.
___ Small Business Investment Company. The Purchaser is a
small business investment company licensed by the U.S.
Small Business Administration under Section 301(c) or (d)
of the Small Business Investment Act of 1958.
___ Business Development Company. The Purchaser is a business
development company as defined in Section 202(a)(22) of
the Investment Advisors Act of 1940.
___ Trust Fund. The Purchaser is a trust fund whose trustee
is a bank or trust company and whose participants are
exclusively state or local Plans or ERISA Plans as defined
above, and no participant of the Purchaser is an
individual retirement account or an H.R. 10 (Keogh) plan.
(iii) The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Purchaser, (ii)
securities that are part of an unsold allotment to or subscription by the
Purchaser, if the Purchaser is a dealer, (iii) bank deposit notes and
certificates of deposit, (iv) loan participations, (v) repurchase
agreements, (vi) securities owned but subject to a repurchase agreement and
(vii) currency, interest rate and commodity swaps.
D-8
(iv) For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Purchaser, the
Purchaser used the cost of such securities to the Purchaser and did not
include any of the securities referred to in the preceding paragraph,
except (i) where the Purchaser reports its securities holdings in its
financial statements on the basis of their market value, and (ii) no
current information with respect to the cost of those securities has been
published. If clause (ii) in the preceding sentence applies, the securities
may be valued at their market value. Further, in determining such aggregate
amount, the Purchaser may have included securities owned by subsidiaries of
the Purchaser, but only if such subsidiaries are consolidated with the
Purchaser in its financial statements prepared in accordance with generally
accepted accounting principles and if the investments of such subsidiaries
are managed under the Purchaser's direction. However, such securities were
not included if the Purchaser is a majority-owned, consolidated subsidiary
of another enterprise and the Purchaser is not itself a reporting company
under the Exchange Act.
(v) The Purchaser acknowledges that it is familiar with Rule 144A
and understands that the seller to it and other parties related to the
Certificates are relying and will continue to rely on the statements made
herein because one or more sales to the Purchaser may be in reliance on
Rule 144A.
(vi) Until the date of purchase of the Certificates, the Purchaser
will notify each of the parties to which this certification is made of any
changes in the information and conclusions herein. Until such notice is
given, the Purchaser's purchase of the Certificates will constitute a
reaffirmation of this certification as of the date of such purchase. In
addition, if the Purchaser is a bank or savings and loan is provided above,
the Purchaser agrees that it will furnish to such parties updated annual
financial statements promptly after they become available.
_________________________
Name of Purchaser
By:______________________
Name:
Title:
Dated:___________________
D-9
ANNEX 2 TO EXHIBIT D
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees That are Registered Investment Companies]
The undersigned (the "Purchaser") hereby certifies as follows to the
addressees of the Rule 144A Representation Letter to which this certification is
attached with respect to the Certificate described therein:
(i) As indicated below, the undersigned is the President, Chief
Financial Officer or Senior Vice President of the Purchaser or, if the
Purchaser is a "qualified institutional buyer" as that term is defined in
Rule 144A ("Rule 144A") under the Securities Act of 1933, as amended,
because the Purchaser is part of a Family of Investment Companies (as
defined below), is such an officer of the Adviser.
(ii) In connection with purchases by the Purchaser, the Purchaser
is a "qualified institutional buyer" as defined in Rule 144A because (i)
the Purchaser is an investment company registered under the Investment
Company Act of 1940, as amended, and (ii) as marked below, the Purchaser
alone, or the Purchaser's Family of Investment Companies, owned at least
$100,000,000 in securities (other than the excluded securities referred to
below) as of the end of the Purchaser's most recent fiscal year. For
purposes of determining the amount of securities owned by the Purchaser or
the Purchaser's Family of Investment Companies, the cost of such securities
was used, except (i) where the Purchaser or the Purchaser's Family of
Investment Companies reports its securities holdings in its financial
statements on the basis of their market value, and (ii) no current
information with respect to the cost of those securities has been
published. If clause (ii) in the preceding sentence applies, the securities
may be valued at market.
___ The Purchaser owned $__________ in securities (other than
the excluded securities referred to below) as of the end
of the Purchaser's most recent fiscal year (such amount
being calculated in accordance with Rule 144A).
___ The Purchaser is part of a Family of Investment Companies
which owned in the aggregate $__________ in securities
(other than the excluded securities referred to below) as
of the end of the Purchaser's most recent fiscal year
(such amount being calculated in accordance with Rule
144A).
(iii) The term "Family of Investment Companies" as used herein
means two or more registered investment companies (or series thereof) that
have the same investment adviser or investment advisers that are affiliated
(by virtue of being majority owned subsidiaries of the same parent or
because one investment adviser is a majority owned subsidiary of the
other).
D-10
(iv) The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Purchaser or are part of
the Purchaser's Family of Investment Companies, (ii) bank deposit notes and
certificates of deposit, (iii) loan participations, (iv) repurchase
agreements, (v) securities owned but subject to a repurchase agreement and
(vi) currency, interest rate and commodity swaps.
(v) The Purchaser is familiar with Rule 144A and understands that
the parties listed in the Rule 144A Representation Letter to which this
certification relates are relying and will continue to rely on the
statements made herein because one or more sales to the Purchaser will be
in reliance on Rule 144A. In addition, the Purchaser will only purchase for
the Purchaser's own account.
(vi) Until the date of purchase of the Transferor Certificate, the
undersigned will notify the parties listed in the Rule 144A Transferee
Certificate to which this certification relates of any changes in the
information and conclusions herein. Until such notice is given, the
Purchaser's purchase of the Certificates will constitute a reaffirmation of
this certification by the undersigned as of the date of such purchase.
__________________________________
Name of Purchaser or Advisor
By:_______________________________
Name:
Title:
IF AN ADVISOR:
__________________________________
Name of Purchaser or Advisor
Dated:____________________________
D-11