EXHIBIT 10.8
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BMW AUTO LEASING LLC
as Program Lessee,
and
BMW VEHICLE LEASE TRUST 2000-A,
As Program Lessor
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PROGRAM OPERATING LEASE
Dated as of November 1, 2000
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TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS...................................................................................2
Section 1.01. Definitions....................................................................2
Section 1.02. Interpretive Provisions........................................................4
ARTICLE II LEASE OF VEHICLE SUBI CERTIFICATE............................................................4
Section 2.01. Lease of Vehicle SUBI Certificate..............................................4
Section 2.02. Representations, Warranties and Covenants of Program Lessor....................5
Section 2.03. Program Lessee's Rights........................................................5
Section 2.04. Pledge and Grant of Security Interest in 2000-A Lease SUBI Certificate.........6
ARTICLE III LEASE TERM AND PAYMENTS....................................................................6
Section 3.01. Term...........................................................................6
Section 3.02. Payments.......................................................................6
Section 3.03. Form of Payment................................................................6
Section 3.04. Tax Treatment..................................................................7
Section 3.05. No Rights to Sublease or Renewal...............................................7
ARTICLE IV UNCONDITIONAL OBLIGATION; ADDITIONAL COLLATERAL.............................................7
Section 4.01. Unconditional Obligation.......................................................7
Section 4.02. Assignment and Pledge of Certain Other Assets..................................8
ARTICLE V LIENS; LOCATION AND INSPECTION...............................................................8
Section 5.01. Liens..........................................................................8
Section 5.02. Change of Location.............................................................9
Section 5.03. Inspection and Information.....................................................9
ARTICLE VI LEASE DEFAULTS..............................................................................9
Section 6.01. Lease Defaults.................................................................9
ARTICLE VII REMEDIES..................................................................................10
Section 7.01. Remedies......................................................................10
Section 7.02. No Release....................................................................11
Section 7.03. Remedies Cumulative...........................................................12
Section 7.04. Exercise of Other Rights or Remedies..........................................12
ARTICLE VIII ASSIGNMENT OF PROGRAM OPERATING LEASE....................................................12
Section 8.01. Assignment of Program Operating Lease by Program Lessor.......................12
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TABLE OF CONTENTS
(continued)
PAGE
ARTICLE IX MISCELLANEOUS..............................................................................13
Section 9.01.Notices..........................................................................13
Section 9.02. Distribution of Vehicle SUBI Assets...........................................13
Section 9.03. Successors and Assigns........................................................13
Section 9.04. Right to Perform for Program Lessee...........................................13
Section 9.05. Amendments....................................................................14
Section 9.06. No Petition...................................................................14
Section 9.07. Survival......................................................................14
Section 9.08. Severability..................................................................14
Section 9.09. Original......................................................................15
Section 9.10. Single Transaction............................................................15
Section 9.11. Table of Contents and Headings................................................15
Section 9.12. Governing Law.................................................................15
Section 9.13. Counterparts..................................................................15
Section 9.14. Limitation of Liability of Owner Trustee......................................15
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PROGRAM OPERATING LEASE
This Program Operating Lease, dated as of November 1, 2000, is between
BMW Vehicle Lease Trust 2000-A, a Delaware business trust (the "Issuer"), as
lessor (in such capacity, the "Program Lessor"), and BMW Auto Leasing LLC, a
Delaware limited liability company, as lessee (the "Program Lessee").
RECITALS
WHEREAS, BMW Manufacturing LP ("BMW LP"), as grantor and UTI
beneficiary (in such capacities, the "Grantor" and the "UTI Beneficiary",
respectively) and Chase Manhattan Bank USA, N.A. ("Chase"), as trustee, have
entered into that certain amended and restated trust agreement, dated as of
September 27, 1996, as further amended as of May 25, 2000 (the "Vehicle Trust
Agreement"), pursuant to which Financial Services Vehicle Trust, a Delaware
business trust (the "Vehicle Trust") was created to, among other things, take
assignments and conveyances of, and hold in trust and deal in various Trust
Assets (as such term is defined in the Vehicle Trust Agreement);
WHEREAS, in connection with the 2000-A Supplement to the Vehicle Trust
Agreement, dated as of November 1, 2000 (the "2000-A SUBI Supplement", and,
together with the Vehicle Trust Agreement, the "SUBI Trust Agreement"), two
special units of beneficial interest (each a "2000-A SUBI" and, collectively,
the "2000-A SUBIs") will be created;
WHEREAS, in connection with the 2000-A SUBI Supplement, a separate
portfolio of leases and certain related assets of the Vehicle Trust (the "2000-A
Leases") will be allocated to one 2000-A SUBI (the "2000-A Lease SUBI"), and the
vehicles that are leased under the 2000-A Leases and certain other related
assets of the Vehicle Trust (the "2000-A Vehicles") will be allocated to the
other 2000-A SUBI (the "2000-A Vehicle SUBI");
WHEREAS, the Vehicle Trust has issued to BMW LP certificates
respectively representing interests in each 2000-A SUBI;
WHEREAS, the certificates representing the interest in the 2000-A
Vehicle SUBI (the "2000-A Vehicle SUBI Certificate") and the interest in the
2000-A Lease SUBI (the "2000-A Lease SUBI Certificate", and together with the
2000-A Vehicle SUBI Certificate, the "2000-A SUBI Certificates") evidence
beneficial interests in the 2000-A SUBI Assets, including the right to receive
certain payments relating to the 2000-A SUBI Assets;
WHEREAS, pursuant to that certain transfer agreement, dated as of
November 1, 2000 (the "SUBI Certificate Transfer Agreement"), between BMW LP, as
transferor, and the Program Lessee, as transferee, BMW LP transferred the 2000-A
Vehicle SUBI Certificate and the 2000-A Lease SUBI Certificate to the Program
Lessee;
WHEREAS, the Issuer was formed pursuant to that certain trust
agreement, dated August 3, 2000, as amended and restated as of November 1, 2000
(the "Trust Agreement"), between the Program Lessee and Wilmington Trust
Company, as trustee (the "Owner Trustee");
WHEREAS, pursuant to that certain transfer agreement, dated as of
November 1, 2000 (the "Issuer SUBI Certificate Transfer Agreement"), between the
Program Lessee, as transferor (the "Transferor"), and the Issuer, the Program
Lessee transferred the 2000-A Vehicle SUBI Certificate to the Issuer;
WHEREAS, pursuant to that certain indenture, dated as of November 1,
2000 (the "Indenture"), between the Indenture Trustee and the Program Lessor,
the Program Lessor has granted a security interest in the 2000-A Vehicle SUBI
Certificate to The Chase Manhattan Bank, as trustee (in such capacity, the
"Indenture Trustee");
WHEREAS, the Program Lessee desires to obtain from the Program Lessor
certain rights in and relating to the 2000-A Vehicles evidenced by the 2000-A
Vehicle SUBI Certificate, including all rights to payments on or in respect of
the 2000-A SUBI Certificates during the term hereof, and the Program Lessor is
willing to grant to the Program Lessee such rights for the period specified
herein on the terms and conditions set forth herein; and
WHEREAS, the Program Lessee, as pledgor, has agreed to pledge the
2000-A Lease SUBI Certificate to the Program Lessor pursuant to this Agreement
to secure the performance of its obligations as Program Lessee hereunder;
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 I
DEFINITIONS
Section 1.01. Definitions. Capitalized terms used herein that are not
otherwise defined shall have the meanings ascribed thereto in the Trust
Agreement, the Indenture, the SUBI Trust Agreement or the Servicing Agreement,
as the case may be. Whenever used in this Agreement, unless the context
otherwise requires, the following words and phrases shall have the following
meanings:
"Agreement" means this Program Operating Lease, as amended or
supplemented from time to time.
"Basic Servicing Agreement" means that certain servicing agreement,
dated as of August 30, 1995, among the UTI Beneficiary, the Servicer and the
Vehicle Trustee.
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"Indenture" has the meaning set forth in the Recitals.
"Lease Default" has the meaning set forth in Section 6.01.
"Lease Default Notice" has the meaning set forth in Section 7.01.
"Lease Payment" means the payment made by the Program Lessee on each
Deposit Date, in an amount equal to the payments made on or in respect of the
2000-A Leases and 2000-A Vehicles during the related Collection Period as
comprise (i) the Monthly Payments received from the related Lessees on each
related Lease; (ii) Early Termination Cost payments made by Lessees following an
early termination of a related Lease; (iii) Excess Mileage Payments (iv) Excess
Wear and Use Payments and (v) any other net proceeds received from the sale or
other disposition of the related Vehicles.
"2000-A Leases" has the meaning set forth in the Recitals.
"2000-A Lease SUBI" has the meaning set forth in the Recitals.
"2000-A Lease SUBI Pledge" has the meaning set forth in Section
2.01(b).
"2000-A SUBI" and "2000-A SUBIs" have the meanings set forth in the
Recitals.
"2000-A SUBI Assets" means the 2000-A Vehicles and the 2000-A Leases.
"2000-A Vehicles" has the meaning set forth in the Recitals.
"2000-A Vehicle SUBI" has the meaning set forth in the Recitals.
"2000-A Lease SUBI Certificate" has the meaning set forth in the
Recitals.
"2000-A SUBI Certificates" has the meaning set forth in the Recitals.
"2000-A Vehicle SUBI Certificate" has the meaning set forth in the
Recitals.
"Lease Term" means the term of this Agreement.
"Leased Assets" has the meaning set forth in Section 2.01(a).
"Permitted Liens" means the respective rights and interests of the
Program Lessor and the Indenture Trustee in and to the 2000-A SUBI Certificates
and this Agreement pursuant to the Basic Documents, including the rights of any
permitted assignee of the Program Lessor or the Indenture Trustee.
"Servicing Agreement" means the Basic Servicing Agreement as
supplemented by the Servicing Supplement, as amended or supplemented from time
to time.
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"Servicing Supplement" means that certain 2000-A Supplement to the
Basic Servicing Agreement, dated as of November 1, 2000, among the parties to
the Servicing Agreement.
"SUBI Trust Agreement" has the meaning set forth in the Recitals.
"Termination Date" means the date of the termination of this Agreement,
which shall be 60 days after the latest Maturity Date of any 2000-A Lease as of
the Cutoff Date.
"Trust Agreement" has the meaning set forth in the Recitals.
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 or thereto, 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.
ARTICLE II
LEASE OF VEHICLE SUBI CERTIFICATE
Section 2.01. Lease of Vehicle SUBI Certificate.
(a) Subject to the terms and conditions hereof, the Program
Lessor hereby agrees to lease to the Program Lessee, and the Program Lessee
hereby agrees to lease from the Program Lessor, for the Lease Term, the Program
Lessor's undivided beneficial interest in the 2000-A Vehicles and the 2000-A
Vehicle SUBI Certificate representing that interest, including the right to
receive all payments made on or in respect of the 2000-A Vehicles and the 2000-A
Vehicle SUBI Certificate and all proceeds thereof during the Lease Term
(collectively, the "Leased Assets"). Notwithstanding the foregoing, this
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Agreement is subject to the security interest herein granted pursuant to the
Indenture by the Program Lessor to the Indenture Trustee.
(b) The 2000-A Vehicle SUBI Certificate shall be delivered to
the Program Lessor in connection with the execution of the Issuer SUBI
Certificate Transfer Agreement. The 2000-A Lease SUBI Certificate shall be
pledged and delivered to the Program Lessor pursuant to Section 2.04 (the
"2000-A Lease SUBI Pledge"). Possession of the 2000-A SUBI Certificates shall
then immediately be delivered to the Indenture Trustee. Thereafter, until the
Lien of the Indenture is released, the Indenture Trustee will maintain physical
possession of the 2000-A SUBI Certificates for the benefit of the Senior
Noteholders; provided, that the Program Lessee shall continue to have all rights
with respect to the 2000-A Vehicle SUBI Certificate set forth in this Agreement
and, subject to the lien of the 2000-A Lease SUBI Pledge and the Indenture, all
rights with respect to the 2000-A Lease SUBI Certificate. To the extent the
Program Lessee has physical possession of the 2000-A Vehicle SUBI Certificate,
the Program Lessee shall at the end of the Lease Term deliver the 2000-A Vehicle
SUBI Certificate to the Program Lessor. Upon such delivery, the Program Lessee
shall be deemed to transfer, assign, set over and otherwise convey to the
Program Lessor, without recourse, representation or warranty, all right, title
and interest of the Program Lessee in and to the Leased Assets, including the
2000-A Vehicle SUBI Certificate, all monies due or to become due with respect
thereto after the date of such delivery and all proceeds thereof. Such delivery
shall satisfy the Program Lessee's obligations pursuant to this Agreement.
(c) At the time of the return of the Leased Assets by the
Program Lessee to the Program Lessor, the 2000-A Vehicle SUBI Certificate shall,
at the cost and expense of the Program Lessee, be free and clear of all Liens,
other than Permitted Liens.
Section 2.02. Representations, Warranties and Covenants of Program
Lessor. As of the date hereof, the Program Lessor hereby represents and warrants
to the Program Lessee that (i) immediately prior to the lease of the Leased
Assets to the Program Lessee, it had good title to and was the sole legal and
beneficial owner of the 2000-A Vehicle SUBI Certificate and it's interest in the
Leased Assets was free and clear of Liens other than Permitted Liens and (ii)
during the Lease Term, so long as no Lease Default shall have occurred and be
continuing, the Program Lessee's receipt and quiet enjoyment of the benefits of
the payments on or in respect of the 2000-A SUBI Certificates (subject to the
2000-A Lease SUBI Pledge and the Lien of the Indenture) shall not be interrupted
or disturbed by the Program Lessor or any Person claiming by, through or under
the Program Lessor.
Section 2.03. Program Lessee's Rights. So long as no Lease Default
shall have occurred and be continuing, in exchange for the payment of the Lease
Payments, the Program Lessee shall enjoy all of the rights to the Leased Assets
and, except as otherwise provided in the Basic Documents, shall have the
exclusive claim (subject to the Lien of the Indenture) to the Leased Assets,
including the right to receive all distributions and proceeds with respect to
the Leased Assets, including the 2000-A Vehicle SUBI Certificate. Such Lease
Payments shall be applied by the Program Lessor to make any payment required to
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be made by the Program Lessor under the Basic Documents. For purposes of the
SUBI Trust Agreement, the Program Lessee shall be deemed the Holder, but the
Program Lessee and its permitted assigns shall indemnify the Program Lessor
against any Liabilities pursuant to Section 3.07 of the SUBI Trust Agreement.
Upon the occurrence and during the continuance of a Lease Default, the Program
Lessee shall no longer have any right to vote or direct actions with respect to
any of the Basic Documents.
Section 2.04. Pledge and Grant of Security Interest in 2000-A Lease
SUBI Certificate. In order to secure payment by the Program Lessee of the Lease
Payments required pursuant to Section 3.02, the Program Lessee hereby pledges
and assigns to the Program Lessor and grants to the Program Lessor a security
interest in, all of Program Lessee's right, title and interest in and to the
2000-A Lease SUBI Certificate, together with all rights appurtenant thereto and
proceeds thereof.
ARTICLE III
LEASE TERM AND PAYMENTS
Section 3.01. Term. The Lease Term shall begin as of the Closing Date
and shall end on the Termination Date. Notwithstanding the foregoing, this
Agreement shall expire with respect to each 2000-A Lease and the related 2000-A
Vehicle on the earliest to occur of (i) the related Maturity Date, (ii) the date
on which the related Lessee terminates the 2000-A Lease; (iii) the date on which
such 2000-A Lease becomes a Default Termination Lease or (iv) the date on which
the Servicer purchases such 2000-A Vehicle pursuant to the Servicing Supplement.
Section 3.02. Payments.
(a) During the Lease Term, (i) the Program Lessee shall pay
the Lease Payment due on each Deposit Date to the Program Lessor and (ii) on any
Deposit Date, a Lease Payment shall be deemed to have been made by the Program
Lessee to the extent an amount equal to such Lease Payment has been deposited in
the SUBI Collection Account during the related Collection Period by the Servicer
with respect to the 2000-A Leases and 2000-A Vehicles as comprise (A) Monthly
Payments received from the related Lessees on each 2000-A Lease; (B) Early
Termination Costs paid by Lessees following an early termination of a 2000-A
Lease; (C) Excess Mileage Payments (D) Excess Wear and Use Payments and (E) any
other net proceeds received from the sale or other disposition of a 2000-A
Vehicle.
(b) Payments in respect of any Other SUBI will not be
available to make Lease Payments or to pay any other amounts payable by the
Program Lessee under this Agreement.
Section 3.03. Form of Payment. All payments due under this Agreement
shall be made to the Program Lessor, or to the Indenture Trustee in lieu of the
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Program Lessor, in immediately available funds prior to 5:00 p.m., New York City
time, on the applicable Deposit Date.
Section 3.04. Tax Treatment. For federal and state income and franchise
tax purposes, the parties hereto agree (i) to treat the 2000-A SUBI Certificates
as being owned by the Program Lessee and (ii) that the Program Lessee is
intended to be the owner of the 2000-A SUBI Certificates.
Section 3.05. No Rights to Sublease or Renewal. Except as set forth in
Section 8.01, the Program Lessee shall not assign, pledge, sell, transfer,
sublease or otherwise dispose of its interest in the 2000-A Vehicle SUBI
Certificate at any time. Except as provided pursuant to the Basic Documents, the
Program Lessee shall not transfer possession or relinquish control of the 2000-A
Vehicle SUBI Certificate. The Program Lessee may not renew the Lease Term.
ARTICLE IV
UNCONDITIONAL OBLIGATION; ADDITIONAL COLLATERAL
Section 4.01. Unconditional Obligation. The Program Lessee hereby
acknowledges and agrees that its obligation to make Lease Payments due
hereunder, and the rights of the Program Lessor in and to such Lease Payments,
shall be absolute and unconditional and shall not be affected by any
circumstance of any character, including:
(a) any set-off, abatement, counterclaim, suspension, recoupment,
reduction, defense or other right or claim that the Program Lessee may
have against the Program Lessor, the Vehicle Trustee, Indenture
Trustee, any Securityholder or any other Person for any reason
whatsoever;
(b) the breach or failure of any warranty or representation made in, or
the failure to perform or comply with any of the terms of, this
Agreement by the Program Lessor, the Vehicle Trustee, the Indenture
Trustee, any Securityholder or any other Person;
(c) any amendment or other change of, or any assignment of rights
under, this Agreement or any other Basic Document, or any waiver,
action or inaction under or in respect of this Agreement, or any
exercise or non-exercise of any right or remedy under this Agreement,
including the exercise of any foreclosure or other remedy under the
Indenture, this Agreement or the sale of any 2000-A SUBI Certificates
or any part thereof or interest therein;
(d) any insolvency, bankruptcy or similar law affecting creditors'
rights generally;
(e) any claims as a result of any other business dealings by the
Program Lessor, the Program Lessee or their respective Affiliates or
the Indenture Trustee or the Vehicle Trustee;
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(f) any defect in or any Lien on the title to any 2000-A SUBI
Certificates or any part thereof;
(g) any change, waiver, extension, indulgence or other act or omission
in respect of any obligation or liability of the Program Lessor or the
Program Lessee;
(h) any alleged failure on the part of the Program Lessor to perform or
comply with any of the terms of any other Basic Document;
(i) any invalidity or unenforceability or disaffirmance of this
Agreement or any provision hereof or any of the other Basic Documents;
(j) any assignment, novation, merger, consolidation, sale or transfer
of assets, leasing or other similar transaction of or affecting the
Program Lessee or the Program Lessor, whether with or without the
approval of the Indenture Trustee, except as expressly provided in this
Agreement; or
(k) any other circumstance or happening whatsoever, whether or not
similar to any of the foregoing.
Each Lease Payment made by the Program Lessee hereunder shall be final
and, absent manifest error, the Program Lessee shall not seek to have any right
to recover all or any part of such payment from the Program Lessor for any
reason whatsoever. Notwithstanding the foregoing, in the event any Lessee under
a 2000-A Lease continues to make Monthly Payments after this Agreement has
expired with respect to the related 2000-A Vehicle pursuant to Section 3.01, the
Program Lessor shall credit such amounts against subsequent Lease Payments due.
The Program Lessee hereby waives, to the extent permitted by applicable law, any
and all rights it may now have or that at any time hereafter may be conferred
upon it, by statute or otherwise, to terminate, cancel, quit or surrender this
Agreement except in accordance with the express terms hereof.
Section 4.02. Assignment and Pledge of Certain Other Assets. The Program Lessee
acknowledges that its interest in the Leased Assets and the related accounts
under this Agreement is subject to the prior pledge by the Program Lessor to the
Indenture Trustee under the Indenture. Subject to Section 2.4(b) of the 2000-A
Servicing Supplement, the Program Lessee hereby pledges and assigns and grants a
security interest to the Issuer in any and all of its right, title and interest
in the 2000-A SUBI Certificates to secure its obligations under this Agreement.
ARTICLE V
LIENS; LOCATION AND INSPECTION
Section 5.01. Liens. The Program Lessee shall not directly or
indirectly create, assume or suffer to exist any Lien on or with respect to the
Leased Assets, any title thereto or any interest therein (including any rights
to payment), other than Permitted Liens. The Program Lessee shall promptly, at
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its own expense, take such action as may be necessary to duly discharge any such
Lien (other than Permitted Liens).
Section 5.02. Change of Location. If, following the payment in full of
the Senior Notes and the release of the Lien of the Indenture, the Program
Lessee shall have obtained possession of the 2000-A Vehicle SUBI Certificate,
then the Program Lessee shall provide the Program Lessor with written notice of
its intention to relocate the 2000-A Vehicle SUBI Certificate in accordance with
the terms hereof at least one month prior to the date such relocation is
commenced. Notwithstanding the foregoing, no relocation of the 2000-A Vehicle
SUBI Certificate by the Program Lessee shall be commenced or made if a Lease
Default shall have occurred and be continuing.
Section 5.03. Inspection and Information. At reasonable intervals
during the Lease Term and at any time at which a Lease Default has occurred and
is continuing, the Program Lessor and its representatives shall have the right,
but not the duty, to inspect the 2000-A Vehicle SUBI Certificate and all records
relating thereto, including all records relating to the receipt or distribution
of funds with respect to the 2000-A Vehicle SUBI Certificate.
ARTICLE VI
LEASE DEFAULTS
Section 6.01. Lease Defaults. Any of the following acts or occurrences
shall constitute a default hereunder (each, a "Lease Default"):
(a) on any Deposit Date, the Program Lessee shall fail to make, or
cause to be made, to the Program Lessor, or the Indenture Trustee or
Vehicle Trustee, as the case may be, in lieu of the Program Lessor, the
Lease Payment due on such Deposit Date, and such default shall continue
for a period of 15 days or more after written notice thereof shall have
been given to the Program Lessee by the Program Lessor;
(b) the Program Lessee shall fail to perform any covenant contained in
Articles Two or Five;
(c) the Program Lessee shall default in the due performance and
observance of any of its covenants or agreements in this Agreement,
which default materially and adversely affects the rights of the
Program Lessor or its interest in the 2000-A Vehicle SUBI Certificate
or the 2000-A Lease SUBI Certificate, and such default shall continue
for a period of 30 days after written notice thereof shall have been
given to the Program Lessee by the Program Lessor;
(d) any representation, warranty or statement of the Program Lessee
made in this Agreement or any other Basic Document, or any certificate,
report or other writing delivered pursuant to this Agreement or a
Servicing Supplement shall prove to have been incorrect when made,
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which has a material adverse effect on the Program Lessor or its
interest in the 2000-A Vehicle SUBI Certificate or the 2000-A Lease
SUBI Certificate and such material adverse effect shall continue for a
period of 30 days after written notice thereof shall have been given to
the Program Lessee by the Program Lessor or by the Indenture Trustee;
(e) (i) the existence of any proceeding or action involving, or the
entry of a decree or order for relief by a court or regulatory
authority having jurisdiction over the Program Lessee in, an
involuntary case under the federal bankruptcy laws, as now or hereafter
in effect, or the appointment of a receiver, liquidator, assignee,
trustee, custodian, sequestrator or other similar official of the
Program Lessee or of any substantial part of its property, or the
ordering of the winding up or the liquidation of the affairs of the
Program Lessee and the continuance of any such action, proceeding,
decree or order unstayed and, in the case of any such order or decree,
in effect for a period of 60 consecutive days or (ii) the commencement
by the Program Lessee of a voluntary case under the federal bankruptcy
laws, as now or hereafter in effect, or the consent by the Program
Lessee to the appointment of or taking of possession by a receiver,
liquidator, assignee, trustee, custodian, sequestrator or other similar
official of the Program Lessee or of any substantial part of its
property or the making by the Program Lessee of an assignment for the
benefit of creditors or the failure by the Program Lessee generally to
pay its debts as such debts become due or the taking of action by the
Program Lessee in furtherance of any of the foregoing; or
(f) there shall occur an Indenture Default.
ARTICLE VII
REMEDIES
Section 7.01. Remedies. Upon the occurrence and during the continuance
of a Lease Default, the Program Lessor (or, if the Lien of the Indenture is
outstanding, the Indenture Trustee as assignee of the Issuer) may, with respect
to any Lease Default described in Section 6.01(a), (b), (c), (d) and (f), at its
option, declare this Agreement to be in default by written notice to such effect
given to the Program Lessee (a "Lease Default Notice"), and upon the occurrence
of a Lease Default described in Section 6.01(e), this Agreement shall
automatically be in default, and at any time thereafter the Program Lessor may,
to the extent permitted by law, exercise one or more of the following remedies
as the Program Lessor in its sole discretion shall elect:
(a) by notice to the Program Lessee, rescind or terminate this
Agreement;
(b) demand, if the Program Lessee has possession of the 2000-A Vehicle
SUBI Certificate (or the 2000-A Lease SUBI Certificate) that the
Program Lessee, and the Program Lessee shall upon such demand,
redeliver the 2000-A Vehicle SUBI Certificate (or the 2000-A Lease SUBI
Certificate) to the Program Lessor;
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(c) subject to the terms of the Trust Agreement and the Indenture, sell
(which action may be taken by the Indenture Trustee, subject to Section
5.04(a) of the Indenture) the 2000-A Vehicle SUBI Certificate or the
2000-A Lease SUBI Certificate at public or private sale, as the Program
Lessor may determine, in its sole discretion free and clear of any
rights of the Program Lessee in the 2000-A Vehicle SUBI Certificate or
the 2000-A Lease SUBI Certificate and without any duty to account to
the Program Lessee with respect to such action or inaction or any
proceeds with respect thereto; provided, that the Program Lessee shall
be entitled to receive any proceeds of such sale remaining after
payment in full of the expenses of such sale and any expenses of the
Program Lessee, the Program Lessor, the Indenture Trustee or the
Vehicle Trustee that have not been otherwise paid; or
(d) whether or not the Program Lessor shall have exercised or shall
thereafter at any time exercise its rights under Section 7.01(b),
demand, by written notice to the Program Lessee, that the Program
Lessee, and the Program Lessee shall upon such demand, pay to the
Program Lessor, or, if the Lien of the Indenture is outstanding, the
Indenture Trustee as assignee of the Issuer, on the Payment Date next
succeeding such notice, any unpaid Lease Payments due through such
Payment Date; provided, however, that the Program Lessor may exercise
the remedy set forth in this paragraph only in the event the Senior
Notes have been declared immediately due and payable pursuant to
Section 5.02 of the Indenture, and such declaration has not been
rescinded or annulled.
Upon any termination of this Agreement, the Program Lessor shall
directly receive all distributions with respect to, or shall have the right to
sell, the 2000-A Vehicle SUBI Certificate or the 2000-A Lease SUBI Certificate
and to apply the funds received in respect thereof to pay interest on and
principal of the Securities, subject to the provisions of the other Basic
Documents.
If the maturity of the Senior Notes has been accelerated following a
Lease Default, the Indenture Trustee, as assignee of the Issuer, shall be
entitled to demand that the Program Lessee pay all previously due but as yet
unpaid Lease Payments plus, as liquidated damages, an amount equal to the sum of
(i) any interest due and unpaid on the Securities, (ii) the unpaid principal
balance of the Securities and (iii) any other amounts payable by the Program
Lessee under the Basic Documents. Upon payment of such amounts, the Program
Lessee shall be entitled to receive the 2000-A Vehicle SUBI Certificate and the
release of the pledged 2000-A Lease SUBI Certificate.
Section 7.02. No Release. No (i) rescission or termination of this
Agreement in whole or in part, (ii) repossession of the 2000-A Vehicle SUBI
Certificate or foreclosure of the lien on the 2000-A Lease SUBI Certificate or
(iii) exercise of any remedy under Section 7.01 shall, except as specifically
provided therein, relieve the Program Lessee of any of its liabilities or
obligations hereunder. In addition, the Program Lessee shall be liable, except
as otherwise provided herein, for any and all unpaid Lease Payments, if any, due
hereunder before, after or during the exercise of the foregoing remedies,
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including all reasonable legal fees and other costs and expenses incurred by the
Program Lessor.
Section 7.03. Remedies Cumulative. No remedy under Section 7.01 is
intended to be exclusive, but each shall, to the fullest extent permitted by,
but subject to any mandatory requirements of, any applicable law or government
regulation, be cumulative and in addition to any other remedy provided under
Section 7.01 or otherwise available to the Program Lessor at law or in equity.
No express or implied waiver by the Program Lessor of any Lease Default shall in
any way be, or be construed to be, a waiver of any future or subsequent Lease
Default. The failure or delay of the Program Lessor in exercising any rights
granted to it hereunder or under any other Basic Document upon any occurrence of
any of the contingencies set forth herein shall not constitute a waiver of any
such right upon the continuation or recurrence of any such contingency or
similar contingency, and any single or partial exercise of any particular right
by the Program Lessor shall not exhaust the same or constitute a waiver of any
other right provided herein.
Section 7.04. Exercise of Other Rights or Remedies. In addition to all
other rights and remedies provided in this Article, the Program Lessor may
exercise any other rights or remedies that may be available to it under
applicable law or proceed by appropriate court action to enforce the terms
hereof or to recover damages for the breach hereof.
ARTICLE VIII
ASSIGNMENT OF PROGRAM OPERATING LEASE
Section 8.01. Assignment of Program Operating Lease by Program Lessor.
(a) The Program Lessee hereby acknowledges, and consents in
all respects to, the assignment of the interest of the Program Lessor in this
Agreement by the Program Lessor to the Indenture Trustee under and pursuant to
the Indenture, and agrees:
(i) to make each Lease Payment due or to become due hereunder
directly to the Indenture Trustee or Vehicle Trustee, as the case may
be, to the account specified by the Indenture Trustee, so long as any
Securities shall be outstanding and unpaid; and
(ii) not to seek to recover any payment (other than a payment
made in error) made to the Indenture Trustee or Vehicle Trustee, as the
case may be, in accordance with the Indenture once such payment is
made.
(b) The Program Lessee hereby consents to and acknowledges the
retention of possession by the Indenture Trustee of the 2000-A SUBI Certificates
until such time as the Senior Notes are paid in full and the Lien of the
Indenture is released.
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ARTICLE IX
MISCELLANEOUS
Section 9.01. 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 Program Lessor, c/o Wilmington Trust Company, at 0000 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000 (telecopier no. (000) 000-0000), Attention:
Corporate Trust Department; (ii) if to the Program Lessee, at 000 Xxxxxxxx Xxxxx
Xxxx, Xxxxxxxxx Xxxx, Xxx Xxxxxx 00000 (telecopier no. (201) [ ]), Attention:
General Counsel, with a copy (which shall not constitute notice) to Xxxxxx X.
Xxxxx, Esq., Weil, Gotshal & Xxxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000 (telecopier no. (000) 000-0000); or (iii) 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. All demands,
notices and communications hereunder shall, so long as the 2000-A Vehicle SUBI
Certificate or the 2000-A Lease SUBI Certificate is subject to the Lien of the
Indenture, be given to the Indenture Trustee as well as to the appropriate party
hereunder.
Section 9.02. Distribution of Vehicle SUBI Assets. The Program Lessee
shall be a Holder of the 2000-A Vehicle SUBI Certificate and the 2000-A Lease
SUBI Certificate for purposes of the SUBI Trust Agreement and, for so long as
this Agreement is in effect, it shall exercise the rights of a Holder provided
for in the SUBI Trust Agreement.
Section 9.03. Successors and Assigns. Neither the Program Lessor nor
the Program Lessee may assign its interest in this Agreement except as permitted
by Section 8.01. This Agreement, including all agreements, covenants,
representations and warranties, shall be binding upon and inure to the benefit
of the Program Lessor and its successors and permitted assigns and the Program
Lessee and its successors and permitted assigns.
Section 9.04. Right to Perform for Program Lessee. If the Program
Lessee shall fail to make any Lease Payment required to be made hereunder, or
shall fail to perform or comply with any of its other agreements contained
herein or in any other Basic Document or any other agreement entered into in
connection therewith, the Program Lessor may, but shall not be obligated to,
make such payment or perform or comply with such agreement, and the amount of
such payment and the amount of all costs and expenses (including, without
limitation, reasonable attorneys' and other professionals' fees and expenses) of
the Program Lessor incurred in connection with such payment or the performance
of or compliance with such agreement, as the case may be, together with interest
thereon, at the Class A-1 Interest Rate, shall be due and payable by the Program
Lessee upon demand.
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Section 9.05. Amendments. This Agreement may be amended without the
consent of the Securityholders; provided, however, (i) that such amendment may
not materially adversely affect the interests of the Senior Noteholders or the
Trust Certificateholders (unless 100% of the Senior Noteholders and the Trust
Certificateholders materially adversely affected consent thereto), (ii) each
Rating Agency has confirmed in writing that such amendment would not result in a
Rating Event and (iii) an Opinion of Counsel is delivered to the effect that
after such amendment the Vehicle Trust will not be classified as an association
(or a publicly traded partnership) taxable as a corporation for federal income
tax purposes. Notwithstanding the foregoing, this Agreement may be amended at
any time by the parties hereto to the extent reasonably necessary to ensure that
none of the Vehicle Trust, the Issuer or the Program Lessee will be classified
as an association (or a publicly traded partnership) taxable as a corporation
for federal income tax purposes.
Section 9.06. No Petition. Each of the parties hereto covenant and
agree 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 2000-A SUBIs or any Other SUBI, against any UTI
Beneficiary (or any general partner of any UTI Beneficiary which is a
partnership or any member of a UTI Beneficiary which is a limited liability
company), the Vehicle Trust and the Vehicle Trustee, without the consent of 100%
of the Holders of the 2000-A SUBIs and any Other SUBIs (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, the Subordinated
Noteholder and 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 9.07. Survival. All agreements, indemnities, representations
and warranties contained in this Agreement and the other Basic Documents or any
agreement, document or certificate delivered pursuant hereto or thereto or in
connection herewith or therewith shall survive the execution and delivery of
this Agreement and the expiration or other termination thereof.
Section 9.08. Severability. If any one or more of the covenants,
agreements, provisions or terms of this Agreement shall be for any reason
whatsoever held invalid, then such covenants, agreements, provisions or terms
shall be deemed severable from the remaining covenants, agreements, provisions
or terms of this Agreement, and shall in no way affect the validity or
enforceability of the other covenants, agreements, provisions or terms of this
Agreement.
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Section 9.09. Original. The single executed original of this Agreement
marked "Original" and containing the receipt of the Indenture Trustee thereon
shall be the "Original" of this Agreement. To the extent this Agreement
constitutes "chattel paper" as such term is defined in the UCC as in effect in
any applicable jurisdiction, no security interest in this Agreement may be
created through the transfer or possession of any counterpart other than the
"Original".
Section 9.10. Single Transaction. The parties hereto acknowledge and
agree that the Basic Documents and any other agreements of the Program Lessee
entered into by the Program Lessee in connection with the transactions
contemplated by the Basic Documents are intended to be construed and treated for
all purposes as integral and constitutive elements of a single transaction that
cannot be separately assigned, assumed or rejected under the United States
bankruptcy code (Title 11 of the United States Code) or any other applicable
bankruptcy, insolvency or receivership laws.
Section 9.11. Table of Contents and Headings. The Table of Contents and
Article and Section headings herein are for convenience of reference only and
shall not define or limit any of the terms or provisions hereof.
Section 9.12. Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York without
regard to any otherwise applicable principles of conflicts of laws (other than
Section 5-1401 of the New York General Obligations Law).
Section 9.13. Counterparts. This Agreement may be executed in any
number of counterparts, each of which so executed and delivered shall be deemed
to be an original, but all of which counterparts shall together constitute but
one and the same instrument.
Section 9.14. Limitation of Liability of Owner Trustee. Notwithstanding
anything contained herein to the contrary, this instrument has been executed by
Wilmington Trust Company not in its individual capacity but solely in its
capacity as Owner Trustee of the Issuer and in no event shall Wilmington Trust
Company in its individual capacity or any beneficial owner of the Issuer have
any liability for the representations, warranties, covenants, agreements or
other obligations of the Issuer hereunder, as to all of which recourse shall be
had solely to the assets of the Issuer. For all purposes of this Agreement, in
the performance of any duties or obligations of the Issuer hereunder, the Owner
Trustee shall be subject to, and entitled to the benefits of, the terms and
provisions of Articles Six, Seven and Ten of the Trust Agreement.
Notwithstanding anything herein to the contrary, Section 2.07 of the Trust
Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this Program
Operating Lease to be duly executed by their respective officers hereunto duly
authorized, as of the day and year first above written.
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BMW AUTO LEASING LLC,
as Program Lessee
By: BMW FINANCIAL SERVICES NA, LLC, as Managing
Member
By:
--------------------------------------------
Name:
Title:
By:
--------------------------------------------
Name:
Title:
BMW VEHICLE LEASE TRUST 2000-A,
as Program Lessor
By: WILMINGTON TRUST COMPANY, not in its individual
capacity but solely as Owner Trustee
By:
--------------------------------------------
Name:
Title:
Receipt of this original counterpart of this Agreement is hereby
acknowledged on this [ ]th day of November, 2000.
THE CHASE MANHATTAN BANK,
as Indenture Trustee
By:
--------------------------------------------
Name:
Title:
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