Exhibit 10.1
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AMENDED AND RESTATED TRUST AGREEMENT
between
BMW FS SECURITIES LLC
as Depositor,
and
WILMINGTON TRUST COMPANY,
as Owner Trustee
Dated as of May 1, 2004
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THIS AMENDED AND RESTATED TRUST AGREEMENT, dated as of May 1, 2004, is
between BMW FS SECURITIES LLC, a Delaware limited liability company, as
depositor (the "Depositor"), and WILMINGTON TRUST COMPANY, a Delaware banking
corporation, as owner trustee (the "Owner Trustee").
WHEREAS, the Depositor and the Owner Trustee entered into that certain
Trust Agreement dated as of March 30, 2004 (the "Original Trust Agreement"),
pursuant to which BMW Vehicle Owner Trust 2004-A (the "Trust") was created; and
WHEREAS, the Depositor and the Owner Trustee have agreed to amend and
restate the Original Trust Agreement.
NOW, THEREFORE, the Depositor and the Owner Trustee hereby agree that the
Original Trust Agreement is hereby amended and restated to read as follows:
ARTICLE I
DEFINITIONS
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Section 1.01. Capitalized Terms. For all purposes of this Agreement, the
following terms shall have the meanings set forth below:
"Administration Agreement" shall mean the Owner Trust Administration
Agreement dated as of May 1, 2004, among the Trust, BMW Financial Services NA,
LLC, as Owner Trust Administrator and Citibank, N.A., as Indenture Trustee.
"Administrator" shall mean BMW Financial Services NA, LLC.
"Agreement" shall mean this Trust Agreement, as the same may be amended and
supplemented from time to time.
"Benefit Plan" shall have the meaning assigned to such term in Section
3.11.
"Certificate Distribution Account" shall have the meaning assigned to such
term in Section 5.01.
"Certificate of Trust" shall mean the Certificate of Trust substantially in
the form attached hereto as Exhibit D filed for the Trust pursuant to Section
3810(a) of the Statutory Trust Statute.
"Certificate Percentage Interest" shall mean with respect to any Trust
Certificate, the percentage interest of ownership in the Trust represented
thereby as set forth on the face thereof.
"Certificate Register" and "Certificate Registrar" shall mean the register
mentioned in and the registrar appointed pursuant to Section 3.04.
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"Certificateholder" or "Holder" shall mean a Person in whose name a Trust
Certificate is registered.
"Code" shall mean the Internal Revenue Code of 1986, as amended, and the
Treasury Regulations promulgated thereunder.
"Corporate Trust Office" shall mean, with respect to the Owner Trustee, the
principal corporate trust office of the Owner Trustee located at Xxxxxx Square
North, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000-0000, Attention:
Corporate Trust Administration, or at such other address in the State of
Delaware as the Owner Trustee may designate by notice to the Certificateholders
and the Depositor, or the principal corporate trust office of any successor
Owner Trustee at the address (which shall be in the State of Delaware)
designated by such successor Owner Trustee by notice to the Certificateholders
and the Depositor.
"Definitive Trust Certificates" shall have the meaning set forth in Section
3.10.
"Depositor" shall mean BMW FS Securities LLC, and its successors, in its
capacity as depositor hereunder.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended.
"Expenses" shall have the meaning assigned to such term in Section 8.02.
"Indemnified Parties" shall have the meaning assigned to such term in
Section 8.02.
"Indenture" shall mean the Indenture, dated as of May 1, 2004, between the
Trust and Citibank, N.A., as Indenture Trustee.
"Indenture Trustee" shall mean Citibank, N.A., a national banking
association.
"Owner Trustee" shall mean Wilmington Trust Company, a Delaware banking
corporation, not in its individual capacity but solely as owner trustee under
this Agreement, and any successor Owner Trustee hereunder.
"Paying Agent" shall mean any paying agent or co-paying agent appointed
pursuant to Section 3.09 and shall initially be Citibank, N.A.
"Person" shall mean any individual, corporation, estate, partnership,
limited liability company, joint venture, association, joint stock company,
trust or statutory trust (including any beneficiary thereof), unincorporated
organization or government or any agency or political subdivision thereof.
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"Record Date" shall mean, with respect to a Payment Date, the close of
business on the day immediately preceding such Payment Date.
"Sale and Servicing Agreement" shall mean the Sale and Servicing Agreement
dated as of May 1, 2004, among the Depositor, BMW Financial Services NA, LLC, as
Seller, Servicer, Custodian and Administrator, the Trust and the Indenture
Trustee, as the same may be amended or supplemented from time to time.
"Secretary of State" shall mean the Secretary of State of the State of
Delaware.
"Securities Act" means the Securities Act of 1933, as amended.
"Statutory Trust Statute" shall mean Chapter 38 of Title 12 of the Delaware
Code, 12 Del. Code Section 3801 et seq., as the same may be amended from time to
time.
"Treasury Regulations" shall mean 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" shall mean the trust continued by this Agreement.
"Trust Certificate" shall mean a certificate evidencing the beneficial
interest of a Certificateholder in the Trust, substantially in the form attached
hereto as Exhibit A.
"Trust Estate" shall mean all right, title and interest of the Trust in and
to the property and rights assigned to the Trust pursuant to Article II of the
Sale and Servicing Agreement, all funds on deposit from time to time in the
Trust Accounts and the Certificate Distribution Account, and all other property
of the Trust from time to time, including any rights of the Owner Trustee and
the Trust pursuant to the Sale and Servicing Agreement and the Administration
Agreement.
Section 1.02. Other Definitional Provisions.
(a) Capitalized terms used and not otherwise defined herein
have the meanings assigned to them in the Sale and Servicing Agreement or, if
not defined therein, in the Indenture.
(b) All terms defined in this Agreement shall have the
defined meanings when used in any certificate or other document made or
delivered pursuant hereto unless otherwise defined therein.
(c) 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
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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.
(d) The words "hereof," "herein," "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement; Section and Exhibit
references contained in this Agreement are references to Sections and Exhibits
in or to this Agreement unless otherwise specified; and the term "including"
shall mean "including without limitation".
(e) The definitions contained in this Agreement are
applicable to the singular and plural forms of such terms and to the masculine,
feminine and neuter genders of such terms.
(f) Any agreement, instrument or statute defined or
referred to herein or in any instrument or certificate delivered in connection
herewith means such agreement, instrument or statute as from time to time
amended, modified or supplemented and includes (in the case of agreements or
instruments) references to all attachments thereto and instruments incorporated
therein; references to a Person are also to its permitted successors and
assigns.
ARTICLE II
ORGANIZATION
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Section 2.01. Name. The Trust created by the Original Trust Agreement and
continued hereby is known as "BMW Vehicle Owner Trust 2004-A," in which name the
Owner Trustee may conduct the business of the Trust, make and execute contracts
and other instruments on behalf of the Trust and xxx and be sued.
Section 2.02. Office. The office of the Trust shall be in care of the
Owner Trustee at the Corporate Trust Office or at such other address in Delaware
as the Owner Trustee may designate by written notice to the Certificateholders
and the Depositor.
Section 2.03. Purposes and Powers. The purpose of the Trust is to engage
in the following activities and the Trust shall have the power and authority:
(a) to issue the Notes pursuant to the Indenture and the
Trust Certificates pursuant to this Agreement and to sell, transfer and exchange
the Notes and the Trust Certificates and to pay interest on and principal of the
Notes and distributions on the Trust Certificates, all in accordance with the
Basic Documents;
(b) with the proceeds of the sale of the Notes, to purchase
the Receivables, to fund the Reserve Account, to pay the organizational,
start-up and
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transactional expenses of the Trust and to pay the balance of such proceeds to
the Depositor pursuant to the Sale and Servicing Agreement;
(c) to Grant the Trust Estate pursuant to the Indenture and
to hold, manage and distribute to the Certificateholders pursuant to the terms
of this Agreement and the Sale and Servicing Agreement any portion of the Trust
Estate released from the Lien of, and remitted to the Trust pursuant to, the
Indenture;
(d) to enter into and perform its obligations under the
Basic Documents to which it is to be a party;
(e) to engage in those activities, including entering into
agreements, that are necessary, suitable or convenient to accomplish the
foregoing or are incidental thereto or connected therewith; and
(f) subject to compliance with the Basic Documents, to
engage in such other activities as may be required in connection with the
collection and conservation of the Trust Estate and the making of distributions
to the Certificateholders and the Noteholders.
The Trust is hereby authorized to engage in the foregoing activities. The
Trust 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 Basic Documents.
Section 2.04. Appointment of Owner Trustee. The Depositor hereby appoints
the Owner Trustee as trustee of the Trust effective as of the date hereof, to
have all the rights, powers and duties set forth herein.
Section 2.05. Initial Capital Contribution of Trust Estate. Pursuant to
the Original Trust Agreement, the Depositor sold, assigned, transferred conveyed
and set over to the Owner Trustee, as of the date thereof, the sum of $1. The
Owner Trustee hereby acknowledges receipt in trust from the Depositor, as of the
date thereof, of the foregoing contribution, which shall constitute the initial
Trust Estate and shall be deposited in the Certificate Distribution Account. The
Depositor shall pay organizational expenses of the Trust 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 Trust Estate in trust upon and subject to the conditions set
forth herein for the use and benefit of the Certificateholders, subject to the
obligations of the Trust under the Basic Documents. It is the intention of the
parties hereto that the Trust constitute a statutory trust under the Statutory
Trust Statute and that this Agreement constitute the governing instrument of
such statutory trust. It is the intention of the parties hereto that, for income
and franchise tax purposes, until the Trust Certificates are held by other than
the Depositor, the Trust will be disregarded as an entity separate from the
Depositor and the Notes will be characterized as debt. At such time that the
Trust Certificates are held
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by more than one Person, it is the intention of the parties hereto that, for
income and franchise tax purposes, the Trust shall be treated as a partnership,
with the assets of the partnership being the Receivables and other assets held
by the Trust, the partners of the partnership being the Certificateholders, and
the Notes being debt of the partnership. The Depositor and the
Certificateholders by acceptance of a Trust Certificate agree to such treatment
and agree to take no action inconsistent with such treatment. The parties agree
that, unless otherwise required by appropriate tax authorities, until the Trust
Certificates are held by more than one Person the Trust will not file or cause
to be filed annual or other necessary returns, reports and other forms
consistent with the characterization of the Trust as an entity separate from its
owner. Effective as of the date hereof, the Owner Trustee shall have all rights,
powers and duties set forth herein and in the Statutory Trust Statute with
respect to accomplishing the purposes of the Trust as set forth in Section 2.03.
Section 2.07. [Reserved].
Section 2.08. Title to Trust Property. Subject to the Lien of the
Indenture, legal title to all the Trust Estate shall be vested at all times in
the Trust as a separate legal entity except where applicable law in any
jurisdiction requires title to any part of the Trust Estate to be vested in a
trustee or trustees, 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 Trust. The Trust will be located and administered
in the State of Delaware. All bank accounts maintained by the Owner Trustee on
behalf of the Trust shall be located in the State of Delaware or the State of
New York. The Trust shall not have any employees; provided, however, that
nothing herein shall restrict or prohibit the Owner Trustee from having
employees within or without the State of Delaware. Payments will be received by
the Trust only in the State of Delaware or the State of New York, and payments
will be made by the Trust only from the State of Delaware or the State of New
York. The only office of the Trust will be at the Corporate Trust Office in the
State of Delaware.
Section 2.10. Representations, Warranties and Covenants of the Depositor.
The Depositor hereby represents and warrants to the Owner Trustee that:
(a) The Depositor is duly organized and validly existing as
a limited liability company in good standing under the laws of the State of
Delaware, with 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) The Depositor is duly qualified to do business as a
foreign limited liability company in good standing and has obtained all
necessary licenses and approvals in all jurisdictions in which the ownership or
lease of its property or the conduct of its business shall require such
qualifications.
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(c) The Depositor has the power and authority to execute
and deliver this Agreement and to carry out its terms; the Depositor has full
power and authority to sell and assign the property to be sold and assigned to
and deposited with the Trust and the Depositor has duly authorized such sale and
assignment and deposit to the Trust by all necessary action; and the execution,
delivery and performance of this Agreement have been duly authorized by the
Depositor by all necessary corporate action.
(d) The Depositor has duly executed and delivered this
Agreement, and this Agreement constitutes a legal, valid and binding obligation
of the Depositor, enforceable against the Depositor, in accordance with its
terms.
(e) The consummation of the transactions contemplated by
this Agreement and the fulfillment of the terms hereof do not conflict with,
result in any breach of any of the terms and provisions of, or constitute (with
or without notice or lapse of time) a default under, the certificate of
formation or limited liability company agreement of the Depositor, or any
indenture, agreement or other instrument to which the Depositor is a party or by
which it is bound; nor result in the creation or imposition of any Lien upon any
of its properties pursuant to the terms of any such indenture, agreement or
other instrument (other than pursuant to the Basic Documents); nor violate any
law or, to the best of the Depositor's knowledge, any order, rule or regulation
applicable to the Depositor of any court or of any federal or state regulatory
body, administrative agency or other governmental instrumentality having
jurisdiction over the Depositor or its properties.
(f) There are no proceedings or investigations pending or
threatened before any court, regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over the Depositor or its
properties (i) asserting the invalidity of this Agreement, (ii) seeking to
prevent the consummation of any of the transactions contemplated by this
Agreement or (iii) seeking any determination or ruling that might materially and
adversely affect the performance by the Depositor of its obligations under, or
the validity or enforceability of, this Agreement.
(g) The representations and warranties of the Depositor in
Section 3.02 of the Sale and Servicing Agreement are true and correct.
Section 2.11. Federal Income Tax Allocations. If the Trust Certificates
are held by more than one Person, for federal income tax purposes each item of
income, gain, loss, credit and deduction shall be allocated to the
Certificateholders as of the first Record Date following the end of such month
in proportion to their Certificate Percentage Interests on such Record Date. The
Depositor is authorized to modify the allocations in this paragraph if necessary
or appropriate, in its sole discretion, for the allocations to fairly reflect
the economic income, gain or loss to the Certificateholders or otherwise
required by the Code. Notwithstanding anything provided in this Section, if the
Trust Certificates are held solely by the Depositor, the application of this
Section shall be disregarded.
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ARTICLE III
TRUST CERTIFICATES AND TRANSFER OF INTERESTS
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Section 3.01. Initial Ownership. Upon the formation of the Trust by the
contribution by the Depositor pursuant to Section 2.05 and until the issuance of
the Trust Certificates, the Depositor shall be the sole beneficiary of the
Trust.
Section 3.02. The Trust Certificates. The Trust Certificates shall be
substantially in the form of Exhibit A. The Trust Certificates shall be executed
on behalf of the Trust by manual or facsimile signature of an authorized officer
of the Owner Trustee. Trust Certificates 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 Trust, shall be validly issued
and entitled to the benefit of this Agreement and shall be valid and binding
obligations of the Trust, 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 did not hold such offices at the date of
authentication and delivery of such Trust Certificates.
If a transfer of the Trust Certificates is permitted pursuant to Section
3.11, a transferee of a Trust Certificate shall become a Certificateholder and
shall be entitled to the rights and subject to the obligations of a
Certificateholder hereunder upon such transferee's acceptance of a Trust
Certificate duly registered in such transferee's name pursuant to Section 3.04.
Section 3.03. Execution, Authentication and Delivery of Trust
Certificates. On the Closing Date, the Owner Trustee shall cause the Trust
Certificates in an aggregate Certificate Percentage Interest equal to 100% to be
executed on behalf of the Trust, authenticated and delivered to or upon the
written order of the Depositor, signed by the Owner Trustee on behalf of the
Trust, without further action by the Depositor, in authorized denominations. No
Trust Certificate shall entitle its Holder to any benefit under this Agreement
or be valid for any purpose unless there shall appear on such Trust Certificate
a certificate of authentication substantially in the form set forth in Exhibit
A, executed by the Owner Trustee or Citibank, N.A., as the Owner Trustee's
authenticating agent, by manual signature; such authentication shall constitute
conclusive evidence that such Trust Certificate shall have been duly
authenticated and delivered hereunder. All Trust Certificates shall be dated the
date of their authentication.
Section 3.04. Registration of Transfer and Exchange of Trust Certificates.
The Certificate Registrar shall keep or cause to be kept, at the office or
agency maintained pursuant to Section 3.08, a Certificate Register in which,
subject to such reasonable regulations as it may prescribe, the Owner Trustee
shall provide for the registration of Trust Certificates and of transfers and
exchanges of Trust Certificates as herein provided. Wilmington Trust Company
shall be the initial Certificate Registrar.
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Upon surrender for registration of transfer of any Trust Certificate at the
office or agency maintained pursuant to Section 3.08, the Owner Trustee shall
execute, authenticate and deliver (or shall cause Citibank, N.A. as its
authenticating agent to authenticate and deliver), in the name of the designated
transferee or transferees, one or more new Trust Certificates of a like
Certificate Percentage Interest dated the date of authentication by the Owner
Trustee or any authenticating agent. At the option of a Certificateholder, Trust
Certificates may be exchanged for other Trust Certificates of a like aggregate
Certificate Percentage Interest upon surrender of the Trust Certificates to be
exchanged at the office or agency maintained pursuant to Section 3.08.
Every Trust Certificate presented or surrendered for registration of
transfer or exchange shall be accompanied by a written instrument of transfer in
form satisfactory to the Owner Trustee and the Certificate Registrar duly
executed by the related Certificateholder or such Certificateholder's attorney
duly authorized in writing. Each Trust Certificate surrendered for registration
of transfer or exchange shall be cancelled and subsequently disposed of by the
Owner Trustee in accordance with its customary practice.
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 transfer or
exchange of Trust Certificates.
The preceding provisions of this Section notwithstanding, the Owner Trustee
shall not make, and the Certificate Registrar shall not register transfers or
exchanges of, Trust Certificates for a period of 15 days preceding the due date
for any payment with respect to the Trust Certificates.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the transfer of the
Trust Certificates.
Section 3.05. Mutilated, Destroyed, Lost or Stolen Trust Certificates. If
(a) any mutilated Trust Certificate shall be surrendered to the Certificate
Registrar, or if the Certificate Registrar shall receive evidence to its
satisfaction of the destruction, loss or theft of any Trust Certificate and (b)
there shall be 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 in the absence of notice that such Trust Certificate has been acquired by a
bona fide purchaser, the Owner Trustee on behalf of the Trust shall execute and
the Owner Trustee or Citibank, N.A., as the Owner Trustee's authenticating
agent, shall authenticate and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Trust Certificate, a new Trust Certificate
of like tenor and denomination. In connection with the issuance of any new Trust
Certificate 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 pursuant to this Section shall constitute conclusive
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evidence of ownership in the Trust, as if originally issued, whether or not the
lost, stolen or destroyed Trust Certificate shall be found at any time.
Section 3.06. Persons Deemed Owners. Prior to due presentation of a Trust
Certificate for registration of transfer, the Owner Trustee, the Certificate
Registrar or any Paying Agent may treat the Person in whose name any Trust
Certificate is registered in the Certificate Register as the owner of such Trust
Certificate 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 or any Paying Agent shall be bound by any notice to the
contrary.
Section 3.07. Access to List of Certificateholders' Names and Addresses.
The Owner Trustee shall furnish or cause to be furnished to the Servicer, the
Paying Agent and the Depositor, within 15 days after receipt by the Owner
Trustee of a written request therefor from the Servicer, the Paying Agent or the
Depositor, a list, in such form as the Servicer or the Depositor may reasonably
require, of the names and addresses of the Certificateholders as of the most
recent Record Date. The Certificate Registrar shall also furnish to the Owner
Trustee and the Paying Agent a copy of such list at any time there is a change
therein. If (i) three or more Certificateholders or (ii) one or more Holders of
Trust Certificates evidencing not less than 50% of the Certificate Percentage
Interests apply in writing to the Owner Trustee, and such application states
that the applicants desire to communicate with other 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 Certificateholders.
Each Certificateholder, by receiving and holding a Trust Certificate, shall be
deemed to have agreed not to hold any of the Depositor, the Certificate
Registrar or the Owner Trustee accountable by reason of the disclosure of its
name and address, regardless of the source from which such information was
derived. The Certificate Registrar shall upon the request of the Owner Trustee
provide such list, or access to such list, of Certificateholders as contemplated
by this Section.
Section 3.08. Maintenance of Office or Agency. The Owner Trustee shall
designate 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 Basic Documents
may be served. The Owner Trustee initially designates Citibank, N.A. located at
000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 as its office for such
purposes. The Owner Trustee shall give prompt written notice to the Depositor
and the Certificateholders of any change in the location of the Certificate
Register or any such office or agency.
Section 3.09. Appointment of Paying Agent. The Paying Agent shall make
distributions to Certificateholders from the Certificate Distribution Account
pursuant to Section 5.02 and shall report the amounts of such distributions to
the Owner Trustee.
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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 Owner Trustee may revoke such power and remove the Paying
Agent if the Owner Trustee determines in its sole discretion that the Paying
Agent shall have failed to perform its obligations under this Agreement in any
material respect; provided, however, the Owner Trustee shall have no duty to
monitor or oversee the compliance by the Paying Agent of its obligations under
this Agreement or any other Basic Document. The Paying Agent initially shall be
Citibank, N.A., and any co-paying agent chosen by Wilmington Trust Company.
Citibank, N.A. shall be permitted to resign as Paying Agent upon 30 days written
notice to the Owner Trustee. In the event that Citibank, N.A. shall no longer be
the Paying Agent, the Depositor, with the consent of 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 hereunder 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 will hold all sums, if any, held by it
for payment to the Certificateholders in trust for the benefit of the
Certificateholders entitled thereto until such sums shall be paid to such
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.
Any reference in this Agreement to the Paying Agent shall include any co-paying
agent unless the context requires otherwise.
Section 3.10. Form of Trust Certificates. The Trust Certificates, upon
original issuance, will be issued in the form of a typewritten Trust Certificate
or Trust Certificates representing definitive, fully registered Trust
Certificates (the "Definitive Trust Certificates") and shall be registered in
the name of BMW FS Securities LLC as the initial registered owner thereof. The
Owner Trustee shall execute and authenticate, or cause to be authenticated, the
Definitive Trust Certificates in accordance with the instructions of the
Depositor. The Depositor hereby orders the Owner Trustee to execute and
authenticate, or cause to be authenticated, the Definitive Trust Certificates.
Neither the Certificate Registrar nor the Owner Trustee shall be liable for any
delay in delivery of such instructions and may conclusively rely on, and shall
be protected in relying on, such instructions. Upon the issuance of the Trust
Certificates, the Owner Trustee and each Paying Agent shall recognize the
Holders of the Trust Certificates as Certificateholders. The Trust Certificates
shall be printed, lithographed or engraved or may be produced in any other
manner as is reasonably acceptable to the Owner Trustee, as evidenced by its
execution thereof.
Section 3.11. Transfer Restrictions. (a) No Trust Certificate may be
resold, assigned or transferred (including by pledge or hypothecation) unless
such resale, assignment or transfer is (i) pursuant to an effective registration
statement under the
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Securities Act and any applicable state securities or "Blue Sky" laws, (ii)
pursuant to Rule 144A promulgated under the Securities Act ("Rule 144A") or
(iii) pursuant to another exemption from the registration requirements of the
Securities Act and subject to the receipt by the Owner Trustee and the Depositor
of (A) a certification by the prospective transferee of the facts surrounding
such transfer, which certification shall be in form and substance satisfactory
to the Owner Trustee and the Depositor and (B) if requested by the Owner
Trustee, an opinion of counsel (which will not be at the expense of the Owner
Trustee), satisfactory to the Depositor and the Owner Trustee, to the effect
that the transfer is in compliance with the Securities Act, and, in each case,
in compliance with any applicable securities or "Blue Sky" laws of any State of
the United States of America. In addition, each transferee shall provide to the
Owner Trustee its tax identification number, address, nominee name (if
applicable) and wire transfer instructions. Prior to any resale, assignment or
transfer of the Trust Certificates described in clause (ii) above, each
prospective purchaser of the Trust Certificates shall have acknowledged,
represented and agreed as follows:
(1) It is a "qualified institutional buyer" as defined in Rule 144A
("QIB") and is acquiring the Trust Certificates for its own
institutional account (and not for the account of others) or as a
fiduciary or agent for others (which others also are QIBs).
(2) It acknowledges that the Trust Certificates have not been and will not
be registered under the Securities Act or the securities laws of any
jurisdiction.
(3) It is familiar with Rule 144A and is aware that the sale is being made
in reliance on Rule 144A and it is not acquiring the Trust
Certificates with a view to, or for resale in connection with, a
distribution that would constitute a public offering within the
meaning of the Securities Act or a violation of the Securities Act,
and that, if in the future it decides to resell, assign, pledge or
otherwise transfer any Trust Certificates, such Trust Certificates may
be resold, assigned, pledged or transferred only (i) to the Depositor
or any Affiliate thereof, (ii) so long as such Trust Certificate is
eligible for resale pursuant to Rule 144A, to a person whom it
reasonably believes after due inquiry is a QIB acting for its own
account (and not for the account of others) or as a fiduciary or agent
for others (which others also are QIBs) to whom notice is given that
the resale, pledge, assignment or transfer is being made in reliance
on Rule 144A, (iii) pursuant to an effective registration statement
under the Securities Act or (iv) in a sale, pledge or other transfer
made in a transaction otherwise exempt from the registration
requirements of the Securities Act, in which case (A) the Owner
Trustee shall require that both the prospective transferor and the
prospective transferee certify to the Owner Trustee and the Depositor
in writing the facts surrounding such transfer, which certification
shall be in form and substance satisfactory to the Owner Trustee and
the Depositor and (B) the Owner Trustee shall require a written
opinion of counsel
12
(which shall not be at the expense of the Depositor or the Owner
Trustee) satisfactory to the Depositor and the Owner Trustee to the
effect that such transfer will not violate the Securities Act, in each
case in accordance with any applicable securities or "Blue Sky" laws
of any State of the United States of America.
(4) It is aware that it (or any account for which it is purchasing) may be
required to bear the economic risk of an investment in the Trust
Certificates for an indefinite period, and it (or such account) is
able to bear such risk for an indefinite period.
(5) It understands that the Trust Certificates will bear legends
substantially as set forth in Section 3.12.
(6) If it is acquiring any Trust Certificates for the account of one or
more qualified institutional buyers, it represents that it has sole
investment discretion with respect to each such account and that it
has full power to make the foregoing acknowledgements, representations
and agreements on behalf of each such account.
(7) It has neither acquired nor will it transfer any Trust Certificate it
purchases (or any interest therein) or cause any such Trust
Certificate (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) 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 Depositor 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.
(9) It understands that no subsequent transfer of the Trust Certificates
is permitted unless (A) such transfer is of a Trust Certificate with a
Certificate Percentage Interest of at least 5%, (B) it causes its
proposed transferee to provide to the Trust and the Depositor a letter
substantially in the form of Exhibit C attached hereto, or such other
written statement as the Depositor shall prescribe and (C) the Trust
consents in writing to the proposed transfer, which consent shall be
granted unless the Depositor determines that such transfer would
create a risk that the 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,
13
however, that any attempted transfer that would either cause the
number of registered holders of Trust Certificates in the aggregate to
exceed 100 shall be a void transfer.
(10) It understands that the Opinion of Counsel to the Trust that the Trust
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) It is a "United States person" within the meaning of Section
7701(a)(30) of the Code.
(12) It acknowledges that the Owner Trustee, the Depositor, and their
Affiliates, and others will rely upon the truth and accuracy of the
foregoing acknowledgments, representations and agreements.
(13) It understands that no Trust Certificate will be acquired or held by
or for the account of (i) an employee benefit plan (as defined in
Section 3(3) of ERISA) that is subject to the provisions of Title I of
ERISA, (ii) a plan described in Section 4975(e)(1) of the Code or
(iii) any entity whose underlying assets include plan assets by reason
of a plan's investment in the entity.
Each Person who acquires any Trust Certificate or interest therein will
certify that the foregoing conditions are satisfied.
Each transferee of the Trust Certificates shall be required to execute or
to have executed a representation letter substantially in the form of Exhibit C,
or may deliver such other representations (or an opinion of counsel) as may be
approved by the Owner Trustee and the Depositor, to the effect that such
transfer may be made pursuant to an exemption from registration under the
Securities Act and any applicable state securities or "Blue Sky" laws.
In addition, such prospective purchaser shall be responsible for providing
additional information or certification, as shall be reasonably requested by the
Owner Trustee or the Depositor, to support the truth and accuracy of the
foregoing acknowledgments, representations and agreements, it being understood
that such additional information is not intended to create additional
restrictions on the transfer of the Trust Certificates. Neither the Depositor,
the Trust nor the Owner Trustee shall be obligated to register the Trust
Certificates under the Securities Act or any state securities or "Blue Sky"
laws.
In determining compliance with the transfer restrictions contained in this
Section, the Owner Trustee may rely upon a written opinion of counsel (which may
include in-house counsel of the transferor), the cost of obtaining which shall
be an expense of the Holder of the Certificate to be transferred.
14
(b) The Trust Certificates may not be acquired by or for the account of
(i) an "employee benefit plan" (as defined in Section 3(3) of ERISA) that is
subject to the provisions of Title I of ERISA, (ii) a "plan" described in
Section 4975(e)(1) of the Code or (iii) any entity whose underlying assets
include plan assets by reason of a plan's investment in the entity (each, a
"Benefit Plan"). By accepting and holding a Trust Certificate, the Holder
thereof shall be deemed to have represented and warranted that it is not a
Benefit Plan.
Section 3.12. Legending of Trust Certificates. Each Trust Certificate
shall bear a legend in substantially the following form, unless the Depositor
determines otherwise in accordance with applicable law:
THIS TRUST CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OR
ANY OTHER APPLICABLE SECURITIES OR "BLUE SKY" LAWS OF ANY STATE OR OTHER
JURISDICTION, AND MAY NOT BE RESOLD, ASSIGNED, PLEDGED OR OTHERWISE TRANSFERRED
EXCEPT IN COMPLIANCE WITH THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OR
ANY OTHER APPLICABLE SECURITIES OR "BLUE SKY" LAWS, PURSUANT TO AN EXEMPTION
THEREFROM OR IN A TRANSACTION NOT SUBJECT THERETO. IT AGREES, ON ITS OWN BEHALF
AND ON BEHALF OF ANY ACCOUNTS FOR WHICH IT IS ACTING AS AGENT, THAT SUCH TRUST
CERTIFICATE MAY BE RESOLD, ASSIGNED, PLEDGED OR TRANSFERRED ONLY (A) SO LONG AS
THE TRUST CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO SUCH PERSON WHOM THE TRANSFEROR REASONABLY BELIEVES AFTER DUE
INQUIRY IS A QIB ACTING FOR ITS OWN ACCOUNT (AND NOT FOR THE ACCOUNT OF OTHERS)
OR AS A FIDUCIARY OR AGENT FOR OTHERS (WHICH OTHERS ALSO ARE QIBS) TO WHOM
NOTICE IS GIVEN THAT THE RESALE, ASSIGNMENT, PLEDGE OR TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (B) TO A UNITED STATES PERSON WITHIN THE MEANING OF
SECTION 7701(a)(30) OF THE CODE, (C) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OR (D) SUCH RESALE, ASSIGNMENT, PLEDGE OR
OTHER TRANSFER IS MADE IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND OTHER SECURITIES OR "BLUE SKY" LAWS, IN
SUCH CASE THE OWNER TRUSTEE SHALL REQUIRE (I) THAT THE PROSPECTIVE TRANSFEREE
CERTIFY TO THE OWNER TRUSTEE AND THE DEPOSITOR IN WRITING THE FACTS SURROUNDING
SUCH TRANSFER, WHICH CERTIFICATION SHALL BE IN FORM AND SUBSTANCE SATISFACTORY
TO THE OWNER TRUSTEE AND (II) IF REQUESTED BY THE OWNER TRUSTEE, A WRITTEN
OPINION OF COUNSEL (WHICH SHALL NOT BE AT THE EXPENSE OF THE OWNER TRUSTEE OR
THE DEPOSITOR) SATISFACTORY TO THE OWNER TRUSTEE AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH TRANSFER WILL NOT VIOLATE THE SECURITIES ACT, IN EACH CASE IN
ACCORDANCE WITH ANY APPLICABLE SECURITIES OR
15
"BLUE SKY" LAWS OF ANY STATE OR JURISDICTION. ANY ATTEMPTED TRANSFER IN
CONTRAVENTION OF THE IMMEDIATELY PRECEDING RESTRICTIONS WILL BE VOID AB INITIO
AND THE PURPORTED TRANSFEROR WILL CONTINUE TO BE TREATED AS THE OWNER OF THE
TRUST CERTIFICATE FOR ALL PURPOSES.
NO TRUST CERTIFICATE OR INTEREST THEREIN MAY BE ACQUIRED BY OR FOR THE
ACCOUNT OF (I) AN "EMPLOYEE BENEFIT PLAN" (AS DEFINED IN SECTION 3(3) OF ERISA)
THAT IS SUBJECT TO THE PROVISIONS OF TITLE I OF ERISA, (II) A "PLAN" DESCRIBED
IN SECTION 4975(E)(1) OF THE CODE OR (III) ANY ENTITY WHOSE UNDERLYING ASSETS
INCLUDE PLAN ASSETS BY REASON OF A PLAN'S INVESTMENT IN THE ENTITY (EACH, A
"BENEFIT PLAN"). BY ACCEPTING AND HOLDING A TRUST CERTIFICATE, THE HOLDER
THEREOF SHALL BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT IT IS NOT A
BENEFIT PLAN.
ARTICLE IV
ACTIONS BY OWNER TRUSTEE
------------------------
Section 4.01. Prior Notice with Respect to Certain Matters. With respect
to the following matters, the Owner Trustee shall not take action unless at
least 30 days before the taking of such action, the Owner Trustee shall have
notified the Servicer of record as of the preceding Record Date in writing of
the proposed action and such Servicer shall have notified the Owner Trustee in
writing prior to the 30th day after such notice is given that such Servicer has
withheld consent or provided alternative direction:
(a) the initiation of any claim or lawsuit by the Trust
(except claims or lawsuits brought in connection with the collection of the
Receivables) and the compromise of any action, claim or lawsuit brought by or
against the Trust (except with respect to the aforementioned claims or lawsuits
for collection of the Receivables);
(b) the election by the Trust to file an amendment to the
Certificate of Trust (unless such amendment is required to be filed under the
Statutory Trust Statute);
(c) the amendment of the Indenture by a supplemental
indenture or any other change to this Agreement or any Basic Document in
circumstances where the consent of any Noteholder is required;
(d) the amendment of the Indenture by a supplemental
indenture or any other change to this Agreement or any Basic Document in
circumstances where the consent of any Noteholder is not required and such
amendment would materially adversely affect the interests of the
Certificateholders;
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(e) the amendment, change or modification of the
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 Certificateholders;
(f) the appointment pursuant to the Indenture of a
successor Note Registrar, Paying Agent or Indenture Trustee or pursuant to this
Agreement of a successor Certificate Registrar, or the consent to the assignment
by the Note Registrar, Paying Agent or Indenture Trustee or Certificate
Registrar of its obligations under the Indenture or this Agreement, as
applicable;
(g) the consent to the calling or waiver of any default
under any Basic Document;
(h) the consent to the assignment by the Indenture Trustee
or Servicer of their respective obligations under any Basic Document, unless
permitted in the Basic Documents;
(i) except as provided in Article IX, dissolve, terminate
or liquidate the Trust in whole or in part;
(j) merge or consolidate the Trust with or into any other
entity, or convey or transfer all or substantially all of the Trust's assets to
any other entity;
(k) cause the Trust to incur, assume or guaranty any
indebtedness other than as set forth in this Agreement or the Basic Documents;
(l) do any act that conflicts with any other Basic
Document;
(m) do any act that would make it impossible to carry on
the ordinary business of the Trust as described in Section 2.03;
(n) confess a judgment against the Trust;
(o) possess Trust assets, or assign the Trust's right to
property, for other than a Trust purpose;
(p) cause the Trust to lend any funds to any entity, unless
permitted in the Basic Documents; or
(q) change the Trust's purpose and powers from those set
forth in this Trust Agreement.
In addition, the Trust shall not commingle its assets with those of any
other entity. The Trust shall maintain its financial and accounting books and
records separate from those of any other entity. Except as expressly set forth
herein, the Trust shall not pay the indebtedness, operating expenses and
liabilities of any other entity. The Trust shall
17
maintain appropriate minutes or other records of all appropriate actions and
shall maintain its office separate from the offices of the Depositor and the
Servicer.
The Owner Trustee shall not have the power, except upon the direction of
the Servicer and to the extent otherwise consistent with the Basic Documents, to
(i) remove or replace the Indenture Trustee, (ii) institute proceedings to have
the Trust declared or adjudicated a bankruptcy or insolvent, (iii) consent to
the institution of bankruptcy or insolvency proceedings against the Trust, (iv)
file a petition or consent to a petition seeking reorganization or relief on
behalf of the Trust under any applicable federal or state law relating to
bankruptcy, (v) consent to the appointment of a receiver, liquidator, assignee,
trustee, sequestrator (or any similar official) of the Trust or a substantial
portion of the property of the Trust, (vi) make any assignment for the benefit
of the Trust's creditors, (vii) cause the Trust to admit in writing its
inability to pay its debts generally as they become due or (viii) take any
action, or cause the Trust to take any action, in furtherance of any of the
foregoing (any of the above, a "Bankruptcy Action"). So long as the Indenture
remains in effect, no Certificateholder shall have the power to take, and shall
not take, any Bankruptcy Action with respect to the Trust or direct the Owner
Trustee to take any Bankruptcy Action with respect to the Trust.
Section 4.02. Action by Servicer with Respect to Certain Matters. The
Owner Trustee shall not have the power, except upon the written direction of the
Servicer to (a) remove the Administrator under the Administration Agreement
pursuant to Section 8 thereof, (b) appoint a successor Administrator pursuant to
Section 8 of the Administration Agreement, (c) remove the Servicer under the
Sale and Servicing Agreement pursuant to Section 8.02 thereof, (d) amend the
Sale and Servicing Agreement pursuant to Section 10.01(b) thereof, or (e) except
as expressly provided in the Basic Documents, sell the Receivables after the
termination of the Indenture. The Owner Trustee shall take the actions referred
to in the preceding sentence only upon written instructions signed by the
Certificateholders.
Section 4.03. Action by Certificateholders with Respect to Bankruptcy. The
Owner Trustee shall not have the power to commence a voluntary proceeding in
bankruptcy relating to the Trust without the unanimous prior approval of all
Certificateholders and the delivery to the Owner Trustee by each such
Certificateholder of a certification certifying that such Certificateholder
reasonably believes that the Trust is insolvent.
Section 4.04. Restrictions on Servicer's Power. The Servicer shall not
direct the Owner Trustee to take or to refrain from taking any action if such
action or inaction would be contrary to any obligation of the Trust or the Owner
Trustee under this Agreement or any of the Basic Documents or would be contrary
to Section 2.03; 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 Certificateholders under this Agreement may be
taken by the Holders of Trust Certificates evidencing not less than a majority
of the aggregate
18
Certificate Percentage Interest. Except as expressly provided herein, any
written notice of the Certificateholders delivered pursuant to this Agreement
shall be effective if signed by Holders of Trust Certificates evidencing not
less than a majority of the aggregate Certificate Percentage Interest at the
time of the delivery of such notice.
ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
------------------------------------------
Section 5.01. Establishment of Trust Account. The Owner Trustee, for the
benefit of the Certificateholders, shall cause the Paying Agent to establish and
maintain in the name of the Trust an Eligible Deposit Account (the "Certificate
Distribution Account"), bearing a designation clearly indicating that the funds
deposited therein are held for the benefit of the Certificateholders. The title
of the Certificate Distribution Account shall be "BMW Vehicle Owner Trust
2004-A: Certificate Distribution Account for the benefit of the
Certificateholders". The Trust 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 expressly provided herein, the
Certificate Distribution Account shall be under the sole dominion and control of
the Owner Trustee for the benefit of the Certificateholders. If, at any time,
the Certificate Distribution Account ceases to be an Eligible Deposit Account,
the Paying Agent shall within 10 Business Days (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 applicable, as an Eligible Deposit
Account and shall transfer any cash or any investments to such new Certificate
Distribution Account.
Section 5.02. Application of Trust Funds.
(a) On each Payment Date, the Owner Trustee shall cause the
Paying Agent to distribute to Certificateholders all amounts deposited in the
Certificate Distribution Account pursuant to Section 5.06 of the Sale and
Servicing Agreement with respect to such Payment Date based upon each
Certificateholder's Certificate Percentage Interest.
(b) On each Payment Date, the Owner Trustee shall cause the
Paying Agent to send to each Certificateholder the statement or statements
provided to the Owner Trustee by the Servicer pursuant to Section 5.08 of the
Sale and Servicing Agreement with respect to such Payment Date.
Section 5.03. Method of Payment. Subject to Section 9.01(c), distributions
required to be made to Certificateholders on any Payment Date shall be made to
each Certificateholder of record on the preceding Record Date either by wire
transfer, in immediately available funds, to the account of such
Certificateholder at a bank or other entity having appropriate facilities
therefor, if (a) such Certificateholder shall have provided to the Certificate
Registrar and the Paying Agent appropriate written instructions at least five
Business Days prior to such Payment Date and (b) such
19
Certificateholder is the Depositor, or an Affiliate thereof, or, if not, by
check mailed to such Certificateholder at the address of such Certificateholder
appearing in the Certificate Register.
Section 5.04. Accounting and Reports to Certificateholders, the Internal
Revenue Service and Others. At such time as there is more than one
Certificateholder (for tax purposes) the Owner Trustee shall (a) unless
otherwise required under the Code, maintain (or cause to be maintained) the
books of the Trust on a calendar year basis and the accrual method of
accounting, (b) deliver (or cause to be delivered) to each Certificateholder, as
may be required by the Code and applicable Treasury Regulations, such
information as may be required (including Schedule K-1) to enable each
Certificateholder to prepare its federal and state income tax returns, (c) file
(or cause to be filed) such tax returns relating to the Trust (including a
partnership information return, IRS Form 1065), and make such elections as from
time to time may be required or appropriate under any applicable state or
federal statute or any rule or regulation thereunder so as to maintain the
Trust's characterization either a disregarded entity or as a partnership for
federal income tax purposes (as appropriate) and (d) cause such tax returns to
be signed in the manner required by law. The parties to this Agreement agree and
acknowledge that the Administrator shall perform the duties and obligations of
the Owner Trustee under this Section in accordance with the Administration
Agreement.
Section 5.05. Signature on Returns; Tax Matters Partner.
(a) The Owner Trustee shall sign on behalf of the Trust the
tax returns of the Trust, if any, unless applicable law requires a
Certificateholder to sign such documents.
(b) BMW Financial Services NA, LLC shall be designated the
"tax matters partner" of the Trust pursuant to Section 6231(a)(7)(A) of the Code
and applicable Treasury Regulations.
ARTICLE VI
AUTHORITY AND DUTIES OF OWNER TRUSTEE
-------------------------------------
Section 6.01. General Authority. The Owner Trustee is authorized and
directed to execute and deliver the Basic Documents to which the Trust 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 Trust is to be a party, in each
case, in such form as the Depositor shall approve, as evidenced conclusively by
the Owner Trustee's execution thereof. In addition to the foregoing, the Owner
Trustee is authorized, but shall not be obligated, to take all actions required
of the Trust pursuant to the Basic Documents. The Owner Trustee is further
authorized from time to time to take such action as the Administrator recommends
with respect to the Basic Documents.
Section 6.02. General Duties. It shall be the duty of the Owner Trustee:
20
(a) to discharge (or cause to be discharged) all of its
responsibilities pursuant to the terms of this Agreement and the Basic Documents
to which the Trust is a party and to administer the Trust in the interest of the
Certificateholders, subject to the Basic Documents and in accordance with the
provisions of this Agreement; provided, however, that notwithstanding the
foregoing, the Owner Trustee shall be deemed to have discharged its duties and
responsibilities hereunder and under the Basic Documents to the extent the
Administrator has agreed in the Administration Agreement to perform any act or
to discharge any duty of the Owner Trustee hereunder or under any 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
Administration Agreement; and
(b) to cooperate with the Administrator in carrying out the
Administrator's obligation to qualify and preserve the Trust's qualification to
do business in each jurisdiction, if any, in which such qualification is or
shall be necessary to protect the validity and enforceability of the Indenture,
the Notes, the Receivables and any other instrument and agreement included in
the Trust Estate; provided that the Owner Trustee may rely on advice of counsel
with respect to such obligation.
Section 6.03. Action upon Instruction.
(a) Subject to Article IV and in accordance with the terms
of the Basic Documents, the Servicer may by written instruction direct the Owner
Trustee in the management of the Trust. Such direction may be exercised at any
time by written instruction of the Servicer pursuant to Article IV.
(b) The Owner Trustee shall not be required to take any
action hereunder or under any 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 or is contrary
to the terms hereof or of any Basic Document or is otherwise contrary to law.
(c) Whenever the Owner Trustee is unable to decide between
alternative courses of action permitted or required by the terms of this
Agreement or under any Basic Document, the Owner Trustee shall promptly give
notice (in such form as shall be appropriate under the circumstances) to the
Certificateholders of record as of the preceding Record Date 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
such Certificateholders received, 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 10 days of such notice (or within such
shorter period of time as reasonably may be specified in such notice or 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
Basic Documents, as it shall deem to be in the best interests of the
Certificateholders, and shall have no liability to any Person for such action or
inaction.
21
(d) In the event that the Owner Trustee is unsure as to the
application of any provision of this Agreement or any 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 permits any determination by the Owner Trustee or is silent or is
incomplete as to the course of action that 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 Servicer
requesting instruction and, to the extent that the Owner Trustee acts or
refrains from acting in good faith in accordance with any such instruction
received, 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 10 days of such notice (or within such shorter
period of time as reasonably may be specified in such notice or 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 Basic
Documents, as it shall deem to be in the best interests of the
Certificateholders, and shall have no liability to any Person for such action or
inaction.
Section 6.04. No Duties Except as Specified in this Agreement or in
Instructions. 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 Trust Estate, or to otherwise take or refrain from
taking any action under, or in connection with, any document contemplated hereby
to which the Owner Trustee or the Trust 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 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 security interest or Lien
granted to it hereunder or to prepare or file any Securities and Exchange
Commission filing for the Trust or to record this Agreement or any 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
on any part of the 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 Trust Estate.
Section 6.05. No Action Except Under Specified Documents or Instructions.
The Owner Trustee shall not manage, control, use, sell, dispose of or otherwise
deal with any part of the Trust Estate except (i) in accordance with the powers
granted to and the authority conferred upon the Owner Trustee pursuant to this
Agreement, (ii) in accordance with the Basic Documents and (iii) in accordance
with any document or instruction delivered to the Owner Trustee pursuant to
Section 6.03.
Section 6.06. Restrictions. The Owner Trustee shall not take any action
that, to its actual knowledge, (a) is inconsistent with the purposes of the
Trust set forth in Section 2.03 or (b) would result in the Trust's becoming
taxable as a corporation for federal
22
income tax purposes. The Certificateholders shall not direct the Owner Trustee
to take action that would violate the provisions of this Section.
ARTICLE VII
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 moneys actually received by it constituting
part of the Trust Estate upon the terms of the Basic Documents and this
Agreement. The Owner Trustee shall not be answerable or accountable hereunder or
under any Basic Document under any circumstances, except (i) for its own willful
misconduct or gross negligence or (ii) in the case of the inaccuracy of any
representation or warranty contained in Section 7.03 expressly 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 of
judgment made by a Trust 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 the Servicer, the Administrator or any Certificateholder;
(c) no provision of this Agreement or any 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 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;
(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 Depositor or for the form, character, genuineness,
sufficiency, value or validity of any of the Trust Estate, or for or in respect
of the validity or sufficiency of the Basic Documents, other than the
certificate of authentication on the Trust Certificates, and the Owner Trustee
shall in no event assume or incur any liability, duty or obligation to any
Noteholder or to any Certificateholder, other than as expressly provided for
herein or expressly agreed to in the other Basic Documents;
23
(f) the Owner Trustee shall not be responsible for
monitoring the performance of, and shall not be liable for the default or
misconduct of the Administrator, the Depositor, the Servicer, the Indenture
Trustee or any other Person under any of the Basic Documents or otherwise, and
the Owner Trustee shall have no obligation or liability to perform the
obligations of the Trust under this Agreement or the Basic Documents that are
required to be performed by the Administrator under the Administration
Agreement, the Indenture Trustee under the Indenture or the Depositor or the
Servicer under the Sale and Servicing Agreement;
(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 Basic Document, at the request, order or
direction of the Servicer, unless such Servicer have offered to the Owner
Trustee security or indemnity satisfactory to it against the costs, expenses and
liabilities 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 Basic Document shall not be construed as a duty, and the
Owner Trustee shall not be answerable for other than its gross negligence or
willful misconduct in the performance of any such act; and
(h) the Certificateholders agree that during such time as
the Owner Trustee is acting at the direction of the Servicer any fiduciary
duties or liabilities of the Owner Trustee to the Certificateholders in
connection therewith shall be deemed not to violate any fiduciary duties owed by
the Owner Trustee to the Certificateholders. However, in no event shall the
Owner Trustee be deemed to owe any fiduciary duties to the Servicer.
Section 7.02. Furnishing of Documents. The Owner Trustee shall furnish to
the Certificateholders, promptly upon receipt of a written request therefor,
duplicates or copies of all reports, notices, requests, demands, certificates,
financial statements 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 Depositor, for the benefit of the
Certificateholders, 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 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.
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(c) Neither the execution or 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.
(d) It is a corporation satisfying the provisions of
Section 3807(a) of the Statutory Trust Statute; authorized to exercise corporate
trust powers; having a combined capital and surplus of at least $50,000,000 and
subject to supervision or examination by federal or state authorities; and
having (or having a parent that has) time deposits that are rated at least "A-1"
by Standard & Poor's and "Prime-1" by Moody's or who is otherwise acceptable to
each Rating Agency.
Section 7.04. Reliance; Advice of Counsel.
(a) The Owner Trustee shall incur no liability to anyone in
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 resolution of the
board of directors or other governing body of any corporate party as conclusive
evidence that such resolution 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
determination of which is not specifically prescribed herein, the Owner Trustee
may for all purposes hereof rely on a certificate, signed by the president or
any vice president or by the treasurer or 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 or the Basic 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 reasonably and in good faith by it in accordance with the
opinion or advice of any such counsel, accountants or other such Persons.
Section 7.05. Not Acting in Individual Capacity. Except as provided in
this Article VII, 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
25
by this Agreement or any Basic Document shall look only to the Trust Estate for
payment or satisfaction thereof.
Section 7.06. Owner Trustee Not Liable for Trust Certificates or for
Receivables. The recitals contained herein and in the Trust Certificates (other
than the signature and countersignature of the Owner Trustee on the Trust
Certificates) shall be taken as the statements of the Depositor, and the Owner
Trustee assumes no responsibility for the correctness thereof. Except as set
forth in Section 7.03, the Owner Trustee makes no representations as to the
validity or sufficiency of this Agreement, of any Basic Document or of the Trust
Certificates (other than the signature and countersignature of the Owner Trustee
on the Trust Certificates) or the Notes, or of any Receivable or related
documents. The Owner Trustee shall at no time have any responsibility or
liability for or with respect to the legality, validity and enforceability of
any Receivable or the perfection and priority of any security interest created
by any Receivable in any Financed Vehicle or the maintenance of any such
perfection and priority, or for or with respect to the sufficiency of the Trust
Estate or its ability to generate the payments to be distributed to the
Certificateholders under this Agreement or the Noteholders under the Indenture,
including, without limitation: the existence, condition and ownership of any
Financed Vehicle; the existence and enforceability of any insurance thereon; the
existence and contents of any Receivable on any computer or other record
thereof; the validity of the assignment of any Receivable to the Trust or of any
intervening assignment; the completeness of any Receivable; the performance or
enforcement of any Receivable; the compliance by the Depositor or the Servicer
with any warranty or representation made under any Basic Document or in any
related document or the accuracy of any such warranty or representation, or any
action of the Administrator, the Indenture Trustee or the Servicer or any
subservicer 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 Depositor, the
Administrator, the Indenture Trustee and the Servicer in banking transactions
with the same rights as it would have if it were not Owner Trustee.
Section 7.08. Doing Business in Other Jurisdictions. Notwithstanding
anything contained herein to the contrary, neither Wilmington Trust Company nor
the Owner Trustee shall be required to take any action in any jurisdiction other
than in the State of Delaware if the taking of such action will (i) require the
consent or approval or authorization or order of, or the giving of notice to, or
the registration with, or the taking of any other action in required by, any
state or other governmental authority or agency of any jurisdiction other than
the State of Delaware; (ii) result in any fee, tax or other governmental charge
under the laws of any jurisdiction or any political subdivisions thereof in
existence on the date hereof other than the State of Delaware becoming payable
by Wilmington Trust Company or the Owner Trustee; or (iii) subject Wilmington
Trust Company or the Owner Trustee to personal jurisdiction in any jurisdiction
other than the State of Delaware for causes of action arising from acts
unrelated to the consummation of the transactions by Wilmington Trust Company or
the Owner Trustee, as the case may
26
be, contemplated hereby. The Owner Trustee shall be entitled to obtain advice of
counsel (which advice shall be an expense of the Administrator under Section
8.01 of this Agreement) to determine whether any action required to be taken
pursuant to the Agreement results in the consequences described in clauses (i),
(ii) and (iii) of the preceding sentence. In the event that said counsel advises
the Owner Trustee that such action will result in such consequences, the Owner
Trustee will appoint an additional trustee pursuant to Section 10.05 hereof to
proceed with such action.
Section 7.09. Paying Agent; Authenticating Agent. The rights and
protections afforded to the Owner Trustee pursuant to Article VII and Sections
8.02, 10.02, and 10.03 shall also be afforded to the Paying Agent,
authenticating agent and Certificate Registrar.
Section 7.10. Licenses. The Owner Trustee shall cooperate with and act at
the written direction of the Administrator in assisting the Administrator in
carrying out the Administrator's obligation to cause the Trust to maintain the
effectiveness of all sales finance company licenses required under the Maryland
Code and all licenses required under the Pennsylvania Motor Vehicle Sales
Finance Act (including executing on behalf of the Trust any license applications
required to be signed by the Trust that are presented to the Owner Trustee by
the Administrator in execution form), in connection with this Agreement and the
other Basic Documents and the transactions contemplated hereby and thereby until
such time as the Trust shall terminate in accordance with the terms hereof.
ARTICLE VIII
COMPENSATION OF OWNER TRUSTEE
-----------------------------
Section 8.01. Owner Trustee's Fees and Expenses. The Administrator shall
pay to the Owner Trustee as compensation for its services hereunder such fees as
have been separately agreed upon before the date hereof between the Servicer and
the Owner Trustee, and the Administrator shall reimburse the Owner Trustee for
its other reasonable expenses hereunder, including the reasonable compensation,
expenses and disbursements of such agents, representatives, experts and counsel
as the Owner Trustee may employ in connection with the exercise and performance
of its rights and its duties hereunder and under the Basic Documents.
Section 8.02. Indemnification. The Administrator shall be liable as
primary obligor for, and shall indemnify the Owner Trustee and its successors,
assigns, agents and servants (collectively, the "Indemnified Parties") from and
against, any and 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
(collectively, "Expenses") which may at any time be imposed on, incurred by, or
asserted against the Owner Trustee or any Indemnified Party in any way relating
to or arising out of this Agreement, the Basic Documents, the Trust Estate, the
administration of the Trust Estate or the action or inaction of the Owner
Trustee hereunder, except only that the Administrator shall not be liable for or
required to
27
indemnify an Indemnified Party from and against Expenses arising or resulting
from any of the matters described in the third sentence of Section 7.01. The
indemnities contained in this Section shall survive the resignation or
termination of the Owner Trustee 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 Administrator, which approval shall not be
unreasonably withheld.
Section 8.03. Payments to the Owner Trustee. Any amounts paid pursuant to
this Article VIII shall be payable solely in the priority set forth in Section
5.06(b) of the Sale and Servicing Agreement and shall be deemed not to be a part
of the Trust Estate immediately after such payment.
ARTICLE IX
TERMINATION OF TRUST AGREEMENT
------------------------------
Section 9.01. Termination of Trust Agreement.
(a) This Agreement (other than Section 5.05 and Article
VIII) and the Trust shall terminate and be of no further force or effect upon
the final distribution by the Owner Trustee of all moneys or other property or
proceeds of the Trust Estate in accordance with the terms of the Indenture, the
Sale and Servicing Agreement and Article V. The bankruptcy, liquidation,
dissolution, death or incapacity of any Certificateholder shall not (i) operate
to terminate this Agreement or the Trust, (ii) entitle such 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
Trust or Trust Estate or (iii) otherwise affect the rights, obligations and
liabilities of the parties hereto.
(b) Except as provided in Section 9.01(a), neither the
Depositor nor any Certificateholder shall be entitled to revoke or terminate the
Trust.
(c) Notice of any termination of the Trust, specifying the
Payment Date upon which Certificateholders shall surrender their Trust
Certificates to the Paying Agent for payment of the final distribution and
cancellation, shall be given by the Owner Trustee by letter to the
Certificateholders mailed within five Business Days of receipt of notice of such
termination from the Servicer given pursuant to Section 9.01 of the Sale and
Servicing Agreement, stating (i) the Payment Date upon or with respect to which
final payment of the Trust Certificates shall be made upon presentation and
surrender of the Trust Certificates 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 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
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the Certificateholders. Upon presentation and surrender of the Trust
Certificates, the Paying Agent shall cause to be distributed to the
Certificateholders amounts distributable on such Payment Date pursuant to
Section 5.02.
In the event that all of the Certificateholders shall not surrender their
Trust Certificates 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 Certificateholders to surrender their Trust
Certificates for cancellation and receive the final distribution with respect
thereto. If within one year after the second notice all the Trust Certificates
shall not have been surrendered for cancellation, the Owner Trustee may take
appropriate steps, or may appoint an agent to take appropriate steps, to contact
the remaining Certificateholders concerning surrender of their Trust
Certificates, 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
Trust after exhaustion of such remedies shall be distributed by the Owner
Trustee to the holder of the residual interest in the Trust, subject to
applicable escheat laws.
(d) Upon the winding up of the Trust and the written
instructions of the Depositor, 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 the provisions of Section 3810 of the Statutory
Trust Statute. Thereupon the Trust and this Agreement (other than Article VIII)
shall terminate.
ARTICLE X
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
------------------------------------------------------
Section 10.01. Eligibility Requirements for Owner Trustee. The Owner
Trustee shall at all times be a corporation satisfying the provisions of Section
3807(a) of the Statutory Trust Statute; authorized to exercise corporate trust
powers; having a combined capital and surplus of at least $50,000,000 and
subject to supervision or examination by federal or state authorities; and
having (or having a parent that has) time deposits that are rated at least "A-1"
by Standard & Poor's and "Prime-1" by Moody's, or which is otherwise acceptable
to each Rating Agency. If such corporation 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 such corporation shall be deemed to 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 Indenture Trustee and
the Rating Agencies. Upon receiving such notice of resignation, the
Administrator shall promptly appoint a successor
29
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, 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 Administrator may remove the Owner Trustee. If the
Administrator shall remove the Owner Trustee under the authority of the
immediately preceding sentence, the Administrator 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, and shall pay all fees owed to the outgoing
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 Administrator shall provide notice of such
resignation or removal of the Owner Trustee to each Rating Agency.
Section 10.03. Successor Owner Trustee. Any successor Owner Trustee
appointed pursuant to Section 10.01 or 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 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.
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Upon acceptance of appointment by a successor Owner Trustee pursuant to
this Section, the Administrator shall mail notice thereof to all
Certificateholders, the Servicer, the Indenture Trustee, the Noteholders and the
Rating Agencies. If the Administrator shall fail to mail such notice within 10
days after acceptance of such appointment by the successor Owner Trustee, the
successor Owner Trustee shall cause such notice to be mailed at the expense of
the Administrator.
Any successor Owner Trustee appointed pursuant to this Section 10.03 shall
promptly file an amendment to the Certificate of Trust with the Secretary of
State identifying the name and principal place of business of such successor
Owner Trustee in the State of Delaware.
Section 10.04. Merger or Consolidation of Owner Trustee. Any Person into
which the Owner Trustee may be merged or converted or with which it may be
consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Owner Trustee shall be a party, or any Person
succeeding to all or substantially all of the statutory 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, anything herein to the contrary notwithstanding;
provided, that such Person shall be eligible pursuant to Section 10.01; and
provided further, that the Owner Trustee shall mail notice of such merger or
consolidation to each Rating Agency; and provided further, that such successor
Owner Trustee shall file an amendment to the Certificate of Trust as described
in Section 10.03.
Section 10.05. Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Trust Estate or any Financed Vehicle may at the time be located, the
Administrator and the Owner Trustee acting jointly shall have the power and
shall execute and deliver all instruments to appoint one or more Persons
approved by the Administrator and Owner Trustee to act as co-trustee, jointly
with the Owner Trustee, or as separate trustee or separate trustees, of all or
any part of the Trust Estate, and to vest in such Person, in such capacity, such
title to the Trust Estate or any part thereof and, subject to the other
provisions of this Section, such powers, duties, obligations, rights and trusts
as the Administrator and the Owner Trustee may consider necessary or desirable.
If the Administrator 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 successor
Owner 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:
(a) all rights, powers, duties and obligations conferred or
imposed upon the Owner Trustee shall be conferred upon and exercised or
performed by
31
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 Administrator 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.
Any separate trustee or co-trustee may at any time appoint the Owner
Trustee as 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 co-trustee or separate trustee.
ARTICLE XI
MISCELLANEOUS
-------------
Section 11.01. Supplements and Amendments. This Agreement may be amended by
the Depositor and the Owner Trustee, with prior written notice to each Rating
Agency, without the consent of any of the Noteholders or the Certificateholders,
to cure any ambiguity, to correct or supplement any provisions in this Agreement
or for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions in this Agreement or of modifying in any
manner the rights of the Noteholders or the Certificateholders; provided,
however, that such action shall not, as evidenced by
32
the satisfaction of the Rating Agency Condition with respect to such amendment,
adversely affect in any material respect the interests of any Noteholder or
Certificateholder; provided, further, that such amendment shall not be deemed to
adversely affect in any material respect the interest of any Noteholder or
Certificateholder if the person requesting such amendment obtains a letter from
the Rating Agencies stating that the amendment would not result in the downgrade
or withdrawal of the ratings then assigned to the Notes and Trust Certificates.
This Agreement may also be amended from time to time by the Depositor and
the Owner Trustee, with prior written notice to each Rating Agency, with the
consent of the Holders (as defined in the Indenture) of the Controlling Class of
Notes evidencing not less than a majority of the Outstanding Amount of the Notes
and the consent of the Holders of Trust Certificates evidencing not less than a
majority of the aggregate Certificate Percentage Interest, for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Agreement or of modifying in any manner the rights of the
Noteholders or the Certificateholders; provided, however, that no such amendment
shall (a) increase or reduce in any manner the amount of, or accelerate or delay
the timing of, collections of payments on Receivables or distributions that
shall be required to be made for the benefit of the Noteholders or the
Certificateholders or (b) reduce the aforesaid percentage of the Outstanding
Amount of the Notes and the Certificate Percentage Interest required to consent
to any such amendment, without the consent of the Holders of all
then-outstanding Notes and Trust Certificates.
Promptly after the execution of any such amendment or consent, the Owner
Trustee shall furnish written notification of the substance of such amendment or
consent to each Certificateholder, the Indenture Trustee and each Rating Agency.
It shall not be necessary for the consent of Certificateholders or
Noteholders pursuant to this Section to approve the particular form of any
proposed amendment or consent, but it shall be sufficient if such consent shall
approve the substance thereof. The manner of obtaining such consents (and any
other consents of Certificateholders provided for in this Agreement or in any
other Basic Document) and of evidencing the authorization of the execution
thereof by Certificateholders shall be subject to such reasonable requirements
as the Owner Trustee may prescribe.
Promptly after the execution of any amendment to the Certificate of Trust,
the Owner Trustee shall cause the filing of such amendment with the Secretary of
State.
Prior to the execution of any amendment to this Agreement or the
Certificate of Trust, 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. The Owner Trustee may, but shall not
be obligated to, enter into any such amendment that affects the Owner Trustee's
own rights, duties or immunities under this Agreement or otherwise.
33
In connection with the execution of any amendment to this Trust Agreement
or any amendment of any other agreement to which the Trust is a party, the Owner
Trustee shall be entitled to receive and conclusively rely upon an Opinion of
Counsel to the effect that such amendment is authorized or permitted by the
Basic Documents and that all conditions precedent in the Basic Documents for the
execution and delivery thereof by the Trust or the Owner Trustee, as the case
may be, have been satisfied.
Section 11.02. No Legal Title to Trust Estate in Certificateholders.
Neither the Depositor nor the Certificateholders shall have legal title to any
part of the Trust Estate. The Certificateholders shall be entitled to receive
distributions with respect to their undivided ownership interest therein only in
accordance with Articles V and IX. No transfer, by operation of law or
otherwise, of any right, title or interest of the Certificateholders to and in
their ownership interest in the Trust Estate 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 Trust Estate.
Section 11.03. Limitations on Rights of Others. The provisions of this
Agreement are solely for the benefit of the Owner Trustee, the Depositor, the
Certificateholders, the Administrator and, to the extent expressly provided
herein, the Indenture Trustee and the Noteholders, and nothing in this
Agreement, whether express or implied, shall be construed to give to any other
Person any legal or equitable right, remedy or claim in the Trust Estate or
under or in respect of this Agreement or any covenants, conditions or provisions
contained herein.
Section 11.04. Notices.
(a) Unless otherwise expressly specified or permitted by
the terms hereof, all notices shall be in writing and shall be deemed given upon
receipt by the intended recipient or three Business Days after mailing if mailed
by certified mail, postage prepaid (except that notice to the Owner Trustee
shall be deemed given only upon actual receipt by the Owner Trustee), if to the
Owner Trustee, addressed to the Corporate Trust Office; if to the Depositor,
addressed to 000 Xxxxxxxx Xxxxx Xxxx, Xxxxxxxxx Xxxx, XX 00000; or, as to each
party, at such other address as shall be designated by such party in a written
notice to each other party. A copy of any such notice shall also be mailed to
the Servicer, addressed to the attention of Vice President - Finance & Risk, 000
Xxxxxxxx Xxxxx Xxxx, Xxxxxxxxx Xxxx, XX 00000.
(b) Any notice required or permitted to be given to a
Certificateholder shall be given by first class mail, postage prepaid, at the
address of such Certificateholder 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
Certificateholder receives such notice.
Section 11.05. 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
34
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
Section 11.06. Separate Counterparts. This Agreement may be executed by the
parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
Section 11.07. Successors and Assigns. All covenants and agreements
contained herein shall be binding upon, and inure to the benefit of, each of the
Depositor and its permitted assignees, the Owner Trustee and its successors and
each Certificateholder and its successors and permitted assigns, all as herein
provided. Any request, notice, direction, consent, waiver or other instrument or
action by a Certificateholder shall bind the successors and assigns of such
Certificateholder.
Section 11.08. Covenants of the Depositor. The Depositor will not at any
time institute against the Trust any bankruptcy proceedings under any United
States federal or state bankruptcy or similar law in connection with any
obligations relating to the Trust Certificates, the Notes, this Agreement or any
of the other Basic Documents.
Section 11.09. No Petition. The Owner Trustee, by entering into this
Agreement, each Certificateholder, by accepting a Trust Certificate, and the
Indenture Trustee and each Noteholder, by accepting the benefits of this
Agreement, hereby covenant and agree that they will not at any time institute
against the Depositor or the Trust or join in any institution against the
Depositor or the Trust of, any bankruptcy proceedings under any United States of
America federal or State bankruptcy or similar law in connection with any
obligations relating to the Trust Certificates, the Notes, this Agreement or any
of the Basic Documents.
Section 11.10. No Recourse. (a) Each Certificateholder by accepting a Trust
Certificate acknowledges that such Trust Certificate represents a beneficial
interest in the Trust only and does not represent an interest in or an
obligation of the Depositor, the Servicer, the Administrator, the Owner Trustee,
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 or the Basic Documents.
(b) In furtherance of and not in derogation of the foregoing, to the
extent the Depositor enters into other securitization transactions, each
Certificateholder, by accepting a Trust Certificate, acknowledges and agrees
that it shall have no right, title or interest in or to any assets or interests
therein of the Depositor (other than the Trust Estate and Reserve Account
relating to this transaction) conveyed or purported to be conveyed by the
Depositor to another securitization trust or other Person or Persons in
connection therewith (whether by way of a sale, capital contribution or by
virtue of the granting of a lien) ("Other Assets"). To the extent that,
notwithstanding the agreements and provisions contained herein, a
Certificateholder either (i) asserts an interest or claim to, or benefit
35
from, Other Assets, whether asserted against or through the Depositor or any
other Person owned by the Depositor, or (ii) is deemed to have any such
interest, claim or benefit in or from Other Assets, whether by operation of law,
legal process, pursuant to applicable provisions of insolvency laws or otherwise
(including by virtue of Section 1111(b) of the Federal Bankruptcy Code or any
successor provision having similar effect under the Bankruptcy Code), and
whether deemed asserted against or through the Depositor or any other Person
owned by the Depositor, then each Certificateholder, by accepting a Trust
Certificate, further acknowledges and agrees that any such interest, claim or
benefit in or from Other Assets is and shall be expressly subordinated to the
indefeasible payment in full of all obligations and liabilities of the Depositor
which, under the terms of the relevant documents relating to the securitization
of such Other Assets, are entitled to be paid from, entitled to the benefits of,
or otherwise secured by such Other Assets (whether or not any such entitlement
or security interest is legally perfected or otherwise entitled to priority of
distribution or application under applicable law, including insolvency laws, and
whether asserted against Depositor or any other Person owned by the Depositor),
including the payment of post-petition interest on such other obligations and
liabilities. This subordination agreement shall be deemed a subordination
agreement within the meaning of Section 510(a) of the Bankruptcy Code. Each
Certificateholder, by acceptance of a Trust Certificate, further acknowledges
and agrees that no adequate remedy at law exists for a breach of this paragraph
and the terms of this paragraph may be enforced by an action for specific
performance. The provisions of this paragraph shall be for the third party
benefit of those entitled to rely thereon and shall survive the termination of
the Trust Agreement.
Section 11.11. 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 11.12. Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
36
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to
be duly executed by their respective officers hereunto duly authorized, as of
the day and year first above written.
BMW FS SECURITIES LLC,
as Depositor
By: /s/ Xxxxxx Xxxxxx
------------------------------------
Name: Xxxxxx Xxxxxx
Title: Treasurer
By: /s/ Xxxxxx Xxxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Vice President - Finance
WILMINGTON TRUST COMPANY,
as Owner Trustee
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Financial Services Officer
EXHIBIT A
FORM OF TRUST CERTIFICATE
BMW VEHICLE OWNER TRUST 2004-A
ASSET BACKED TRUST CERTIFICATE
(This Trust Certificate does not represent an interest in or obligation of
BMW FS Securities LLC or any of its Affiliates, except to the extent described
below.)
(This Trust Certificate is subordinate to the Notes, as set forth in the
Sale and Servicing Agreement)
THIS TRUST CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OR
ANY OTHER APPLICABLE SECURITIES OR "BLUE SKY" LAWS OF ANY STATE OR OTHER
JURISDICTION, AND MAY NOT BE RESOLD, ASSIGNED, PLEDGED OR OTHERWISE TRANSFERRED
EXCEPT IN COMPLIANCE WITH THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OR
ANY OTHER APPLICABLE SECURITIES OR "BLUE SKY" LAWS, PURSUANT TO AN EXEMPTION
THEREFROM OR IN A TRANSACTION NOT SUBJECT THERETO. IT AGREES, ON ITS OWN BEHALF
AND ON BEHALF OF ANY ACCOUNTS FOR WHICH IT IS ACTING AS AGENT, THAT SUCH TRUST
CERTIFICATE MAY BE RESOLD, ASSIGNED, PLEDGED OR TRANSFERRED ONLY (A) SO LONG AS
THE TRUST CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO SUCH PERSON WHOM THE TRANSFEROR REASONABLY BELIEVES AFTER DUE
INQUIRY IS A QIB ACTING FOR ITS OWN ACCOUNT (AND NOT FOR THE ACCOUNT OF OTHERS)
OR AS A FIDUCIARY OR AGENT FOR OTHERS (WHICH OTHERS ALSO ARE QIBS) TO WHOM
NOTICE IS GIVEN THAT THE RESALE, ASSIGNMENT, PLEDGE OR TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (B) TO A UNITED STATES PERSON WITHIN THE MEANING OF
SECTION 7701(a)(30) OF THE CODE, (C) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OR (D) SUCH RESALE, ASSIGNMENT, PLEDGE OR
OTHER TRANSFER IS MADE IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND OTHER SECURITIES OR "BLUE SKY" LAWS, IN
SUCH CASE THE OWNER TRUSTEE SHALL REQUIRE (I) THAT THE PROSPECTIVE TRANSFEREE
CERTIFY TO THE OWNER TRUSTEE AND THE DEPOSITOR IN WRITING THE FACTS SURROUNDING
SUCH TRANSFER, WHICH CERTIFICATION SHALL BE IN FORM AND SUBSTANCE SATISFACTORY
TO THE OWNER TRUSTEE AND (II) IF REQUESTED BY THE OWNER TRUSTEE, A WRITTEN
OPINION OF COUNSEL (WHICH SHALL NOT BE AT THE EXPENSE OF THE OWNER TRUSTEE OR
THE DEPOSITOR)
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SATISFACTORY TO THE OWNER TRUSTEE AND THE DEPOSITOR, TO THE EFFECT THAT SUCH
TRANSFER WILL NOT VIOLATE THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH
ANY APPLICABLE SECURITIES OR "BLUE SKY" LAWS OF ANY STATE OR JURISDICTION. ANY
ATTEMPTED TRANSFER IN CONTRAVENTION OF THE IMMEDIATELY PRECEDING RESTRICTIONS
WILL BE VOID AB INITIO AND THE PURPORTED TRANSFEROR WILL CONTINUE TO BE TREATED
AS THE OWNER OF THE TRUST CERTIFICATE FOR ALL PURPOSES.
NO TRUST CERTIFICATE OR INTEREST THEREIN MAY BE ACQUIRED BY OR FOR THE ACCOUNT
OF (I) AN "EMPLOYEE BENEFIT PLAN" (AS DEFINED IN SECTION 3(3) OF ERISA) THAT IS
SUBJECT TO THE PROVISIONS OF TITLE I OF ERISA, (II) A "PLAN" DESCRIBED IN
SECTION 4975(E)(1) OF THE CODE OR (III) ANY ENTITY WHOSE UNDERLYING ASSETS
INCLUDE PLAN ASSETS BY REASON OF A PLAN'S INVESTMENT IN THE ENTITY (EACH, A
"BENEFIT PLAN"). BY ACCEPTING AND HOLDING A TRUST CERTIFICATE, THE HOLDER
THEREOF SHALL BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT IT IS NOT A
BENEFIT PLAN.
THIS CERTIFIES THAT BMW FS SECURITIES LLC is the registered owner of a 100%
Certificate Percentage Interest that is nonassessable, fully-paid, beneficial
ownership interest in certain distributions of BMW Vehicle Owner Trust 2004-A
(the "Trust") formed by BMW FS Securities LLC, a Delaware limited liability
company (the "Depositor").
The Trust was created pursuant to a Trust Agreement dated March 30, 2004 as
amended and restated as of May 1, 2004 (the "Trust Agreement"), between the
Depositor and Wilmington Trust Company, as owner trustee (the "Owner Trustee"),
a summary of certain of the pertinent provisions of which is set forth below. To
the extent not otherwise defined herein, the capitalized terms used herein have
the meanings assigned to them in the Sale and Servicing Agreement among the
Trust, the Depositor, as Seller, BMW Financial Services, NA, LLC, as Seller,
Servicer, Administrator and Custodian (the "Servicer"), the Depositor and
Citibank, N.A., as Indenture Trustee ("Indenture Trustee"), dated as of May 1,
2004, as the same may be amended or supplemented from time to time.
This Certificate is one of the duly authorized Trust Certificates
designated as BMW Vehicle Owner Trust 2004-A Asset Backed Trust Certificates
(herein called the "Trust Certificates"). Also issued under the Indenture dated
as of May 1, 2004, between the Trust, as issuer and Indenture Trustee, are five
classes of Notes designated as 1.18% Class A-1 Asset Backed Notes (the "Class
A-1 Notes"), 1.88% Class A-2 Asset Backed Notes (the "Class A-2 Notes"), 2.67%
Class A-3 Asset Backed Notes (the "Class A-3 Notes"), 3.32% Class A-4 Asset
Backed Notes (the "Class A-4 Notes" and, together with the Class A-1 Notes, the
Class A-2 Notes and the Class A-3 Notes, the "Class A Notes"), and 3.52% Class B
Asset Backed Notes (the "Class B Notes" and, together with the Class
A-2
A Notes, the "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 holder is bound.
Under the Trust Agreement, there will be distributed on the 25th day of
each month (or, if such 25th day is not a Business Day, the next Business Day),
commencing on June 25, 2004, to the Person in whose name this Trust Certificate
is registered at the close of business on the last day of the preceding month,
such Certificateholder's Certificate Percentage Interest in the amount to be
distributed to Certificateholders on such date.
The holder of this Trust Certificate acknowledges and agrees that its
rights to receive distributions in respect of this Trust Certificate are
subordinated to the rights of the Noteholders as described in the Sale and
Servicing Agreement, the Indenture and the Trust Agreement, as applicable.
It is the intent of the Depositor, the Servicer and the Certificateholders
that, for purposes of federal income, state and local income and franchise tax,
until the Trust Certificates are held by other than the Depositor, the Trust
will be disregarded as an entity separate from its owner. At such time that the
Trust Certificates are held by more than one person, it is the intent of the
Seller, the Servicer and the Certificateholders that, for purposes of federal
income, state and local income and franchise tax, the Trust will be treated as a
partnership, the assets of which are the assets held by the Trust, and the
Certificateholders will be treated as partners in that partnership. The Seller
and the other Certificateholders, by acceptance of a Trust Certificate, agree to
treat, and to take no action inconsistent with the treatment of, the Trust
Certificates as such for tax purposes.
Each Certificateholder, by its acceptance of a Trust Certificate, covenants
and agrees that such Certificateholder will not at any time institute against
the Depositor, or join in or encourage any institution against the Depositor of,
any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or other proceedings under any United States federal or state
bankruptcy or similar law in connection with any obligations relating to the
Trust Certificates, the Notes, the Trust Agreement or any of the Basic
Documents.
Each Certificateholder by accepting a Trust Certificate acknowledges that
such Certificateholder's Trust Certificates represent beneficial interests in
the Trust only and do not represent interests in or obligations of Depositor,
the Servicer, Administrator, Seller, Owner Trustee, Indenture Trustee or any
Affiliate thereof and no recourse may be had against such parties or their
assets, except as expressly set forth or contemplated in the Trust Agreement,
the Trust Certificates or the Basic Documents.
In furtherance of and not in derogation of the foregoing, to the extent the
Depositor enters into other securitization transactions, each Certificateholder,
by
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accepting a Trust Certificate, acknowledges and agrees that it shall have no
right, title or interest in or to any assets or interests therein of the
Depositor (other than the Trust Estate and Reserve Account relating to this
transaction) conveyed or purported to be conveyed by the Depositor to another
securitization trust or other Person or Persons in connection therewith (whether
by way of a sale, capital contribution or by virtue of the granting of a lien)
("Other Assets"). To the extent that, notwithstanding the agreements and
provisions contained herein, a Certificateholder either (i) asserts an interest
or claim to, or benefit from, Other Assets, whether asserted against or through
the Depositor or any other Person owned by the Depositor, or (ii) is deemed to
have any such interest, claim or benefit in or from Other Assets, whether by
operation of law, legal process, pursuant to applicable provisions of insolvency
laws or otherwise (including by virtue of Section 1111(b) of the Federal
Bankruptcy Code or any successor provision having similar effect under the
Bankruptcy Code), and whether deemed asserted against or through the Depositor
or any other Person owned by the Depositor, then each Certificateholder, by
accepting a Trust Certificate, further acknowledges and agrees that any such
interest, claim or benefit in or from Other Assets is and shall be expressly
subordinated to the indefeasible payment in full of all obligations and
liabilities of the Depositor which, under the terms of the relevant documents
relating to the securitization of such Other Assets, are entitled to be paid
from, entitled to the benefits of, or otherwise secured by such Other Assets
(whether or not any such entitlement or security interest is legally perfected
or otherwise entitled to priority of distribution or application under
applicable law, including insolvency laws, and whether asserted against
Depositor or any other Person owned by the Depositor), including the payment of
post-petition interest on such other obligations and liabilities. This
subordination agreement shall be deemed a subordination agreement within the
meaning of Section 510(a) of the Bankruptcy Code. Each Certificateholder, by
acceptance of a Trust Certificate, further acknowledges and agrees that no
adequate remedy at law exists for a breach of this paragraph and the terms of
this paragraph may be enforced by an action for specific performance. The
provisions of this paragraph shall be for the third party benefit of those
entitled to rely thereon and shall survive the termination of the Trust
Agreement.
The Trust Certificates may not be acquired by or for the account of (i) an
"employee benefit plan" (as defined in Section 3(3) of ERISA) that is subject to
the provisions of Title I of ERISA, (ii) a "plan" described in Section
4975(e)(1) of the Code or (iii) any entity whose underlying assets include plan
assets by reason of a plan's investment in the entity (each, a "Benefit Plan").
By accepting and holding a Trust Certificate, the Holder thereof shall be deemed
to have represented and warranted that it is not a Benefit Plan.
Unless the certificate of authentication hereon shall have been executed by
an authorized officer of Owner Trustee, by manual signature, this Trust
Certificate shall not entitle the holder hereof to any benefit under the Trust
Agreement or the Sale and Servicing Agreement or be valid for any purpose.
A-4
THIS TRUST CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND
THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS.
IN WITNESS WHEREOF, Owner Trustee, on behalf of the Trust and not in its
individual capacity, has caused this Trust Certificate to be duly executed.
BMW VEHICLE OWNER TRUST 2004-A
By: WILMINGTON TRUST COMPANY,
not in its individual capacity,
but solely as Owner Trustee
Dated: By:
----------------------------- -------------------------------------
Authorized Signatory
OWNER TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Trust Certificates referred to in the within-mentioned
Trust Agreement.
WILMINGTON TRUST COMPANY, WILMINGTON TRUST COMPANY,
not in its individual capacity, not in its individual capacity,
but solely as Owner Trustee but solely as Owner Trustee
or
By: Citibank, N.A.,
as authenticating agent
By: By:
-------------------------------- -------------------------------------
Authorized Signatory Authorized Signatory
A-5
EXHIBIT B
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, and hereby irrevocably
constitutes and appoints ____________, 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 signature to this assignment must correspond with the name of
the registered owner as it appears on the face of the within Trust Certificate
in every particular, without alteration, enlargement or any change whatever.
Such signature must be guaranteed by an "eligible guarantor institution" meeting
the requirements of the Certificate Registrar, which requirements include
membership or participation in STAMP or such other "signature guarantee program"
as may be determined by the Certificate Registrar in addition to, or in
substitution for, STAMP, all in accordance with the Securities Exchange Act of
1934, as amended.
B-1
EXHIBIT C
FORM OF TRANSFEREE LETTER
[Date]
BMW Vehicle Owner Trust 2004-A,
as Issuer
c/o Wilmington Trust Company,
as Owner Trustee
Wilmington Trust Company,
as Owner Trustee
Ladies and Gentlemen:
In connection with our proposed purchase of the ____% Certificate
Percentage Interest Asset Backed Trust Certificates (the "Trust Certificates")
of BMW Vehicle Owner Trust 2004-A (the "Issuer"), a trust formed by BMW FS
Securities LLC (the "Depositor" or "Seller"), we confirm that:
a. We are a "qualified institutional buyer" as defined in Rule 144A
("QIB") and are acquiring the Trust Certificate for our own institutional
account (and not for the account of others) or as a fiduciary or agent for
others (which others also are QIBs).
b. We acknowledge that the Trust Certificates have not been and will not
be registered under the Securities Act or the securities laws of any
jurisdiction.
c. We are familiar with Rule 144A and are aware that the sale is being
made in reliance on Rule 144A and we are not acquiring the Trust Certificates
with a view to, or for resale in connection with, a distribution that would
constitute a public offering within the meaning of the Securities Act or a
violation of the Securities Act, and that, if in the future we decide to resell,
assign, pledge or otherwise transfer any Trust Certificates, such Trust
Certificates may be resold, assigned, pledged or transferred only (i) to the
Depositor or any Affiliate thereof, (ii) so long as such Trust Certificate is
eligible for resale pursuant to Rule 144A, to a person whom we reasonably
believe after due inquiry is a QIB acting for its own account (and not for the
account of others) or as a fiduciary or agent for others (which others also are
QIBs) to whom notice is given that the resale, pledge, assignment or transfer is
being made in reliance on Rule 144A, (iii) pursuant to an effective registration
statement under the Securities Act or (iv) in a sale, pledge or other transfer
made in a transaction otherwise exempt from the registration requirements of the
Securities Act, in which case (A) the Owner Trustee will require that
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both the prospective transferor and the prospective transferee certify to the
Owner Trustee and the Depositor in writing the facts surrounding such transfer,
which certification shall be in form and substance satisfactory to the Owner
Trustee and the Depositor and (B) the Owner Trustee will require a written
opinion of counsel (which shall not be at the expense of the Depositor or the
Owner Trustee) satisfactory to the Depositor and the Owner Trustee to the effect
that such transfer will not violate the Securities Act, in each case in
accordance with any applicable securities or "Blue Sky" laws of any state of the
United States.
d. We have neither acquired nor will we transfer any Trust Certificate we
purchase (or any interest therein) or cause any such Trust Certificate (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.
e. We either (A) are not, and will not become, a partnership, Subchapter S
corporation or grantor trust for U.S. federal income tax purposes or (B) are
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 Depositor 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.
f. We understand that no subsequent transfer of the Trust Certificates is
permitted unless (A) such transfer is of a Trust Certificate with a Certificate
Percentage Interest of at least 5%, (B) we cause the proposed transferee to
provide to the Trust and the Depositor a letter substantially in the form of
Exhibit C to the Trust Agreement, as applicable, or such other written statement
as the Depositor shall prescribe and (C) the Trust consents in writing to the
proposed transfer, which consent shall be granted unless the Depositor
determines that such transfer would create a risk that the 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 the number of registered
holders of Trust Certificates in the aggregate to exceed 100 shall be a void
transfer.
g. We understand that the Opinion of Counsel to the Trust that the Trust
is not a publicly traded partnership taxable as a corporation is dependent in
part on the accuracy of the representations in paragraphs (d), (e) and (f)
above.
h. We are a "United States person" within the meaning of Section
7701(a)(30) of the Code.
i. No Trust Certificate will be acquired or held by or for the account of
(i) an employee benefit plan (as defined in Section 3(3) of ERISA) that is
subject to the provisions of Title I of ERISA, (ii) a plan described in Section
4975(e)(1) of the Code
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or (iii) any entity whose underlying assets include plan assets by reason of a
plan's investment in the entity. Each Person who acquires any Trust Certificate
or interest therein will certify that the foregoing conditions are satisfied.
j. We are aware that we (or any account for which we are purchasing) may
be required to bear the economic risk of an investment in the Trust Certificates
for an indefinite period, and we (or such account) are able to bear such risk
for an indefinite period.
k. We understand that the Trust Certificates will bear legends
substantially as set forth in Section 3.12 of the Trust Agreement.
l. If we are acquiring any Trust Certificates for the account of one or
more QIBs, we represent that we have sole investment direction with respect to
each such account and that we have full power to make the foregoing
acknowledgments, representations and agreements on behalf of each such account.
m. We acknowledge that the Owner Trustee, the Depositor, and their
Affiliates, and others will rely upon the truth and accuracy of the foregoing
acknowledgments, representations and agreements.
You 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 proceedings or official inquiry with respect to the
matters covered hereby.
Very truly yours,
By:
------------------------------------
Name:
Title:
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EXHIBIT D
FORM OF CERTIFICATE OF TRUST OF BMW VEHICLE OWNER TRUST 2004-A
This CERTIFICATE OF TRUST of BMW VEHICLE OWNER TRUST 2004-A (the "Trust"),
dated March 30, 2004, is being duly executed and filed by Wilmington Trust
Company, a Delaware banking corporation, as trustee, to form a statutory trust
under the Delaware Statutory Trust Act (12 Del. Code, Section 3801 et seq.).
1. Name. The name of the statutory trust formed hereby is BMW VEHICLE
OWNER TRUST 2004-A.
2. Delaware Trustee. The name and business address of the trustee of the
Trust in the State of Delaware is Wilmington Trust Company, Xxxxxx Square North,
0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000-0000, Attention: Corporate
Trust Administration.
3. Effective Date. This Certificate of Trust shall be effective upon
filing with the Secretary of State.
IN WITNESS WHEREOF, the undersigned, being the sole trustee of the Trust,
has executed this Certificate of Trust as of the date first above written.
WILMINGTON TRUST COMPANY,
as trustee
By:
------------------------------------
Name:
Title:
D-1
TABLE OF CONTENTS PAGE
ARTICLE I DEFINITIONS.....................................................1
Section 1.01. Capitalized Terms..........................................1
Section 1.02. Other Definitional Provisions..............................3
ARTICLE II ORGANIZATION....................................................4
Section 2.01. Name.......................................................4
Section 2.02. Office.....................................................4
Section 2.03. Purposes and Powers........................................4
Section 2.04. Appointment of Owner Trustee...............................5
Section 2.05. Initial Capital Contribution of Trust Estate...............5
Section 2.06. Declaration of Trust.......................................5
Section 2.07. [Reserved].................................................6
Section 2.08. Title to Trust Property....................................6
Section 2.09. Situs of Trust.............................................6
Section 2.10. Representations, Warranties and Covenants of the
Depositor..................................................6
Section 2.11. Federal Income Tax Allocations.............................7
ARTICLE III TRUST CERTIFICATES AND TRANSFER OF INTERESTS....................8
Section 3.01. Initial Ownership..........................................8
Section 3.02. The Trust Certificates.....................................8
Section 3.03. Execution, Authentication and Delivery of Trust
Certificates...............................................8
Section 3.04. Registration of Transfer and Exchange of Trust
Certificates...............................................8
Section 3.05. Mutilated, Destroyed, Lost or Stolen Trust
Certificates...............................................9
Section 3.06. Persons Deemed Owners.....................................10
Section 3.07. Access to List of Certificateholders' Names and
Addresses.................................................10
Section 3.08. Maintenance of Office or Agency...........................10
Section 3.09. Appointment of Paying Agent...............................10
Section 3.10. Form of Trust Certificates................................11
Section 3.11. Transfer Restrictions.....................................11
Section 3.12. Legending of Trust Certificates...........................15
i
ARTICLE IV ACTIONS BY OWNER TRUSTEE.......................................16
Section 4.01. Prior Notice with Respect to Certain Matters..............16
Section 4.02. Action by Servicer with Respect to Certain Matters........18
Section 4.03. Action by Certificateholders with Respect to
Bankruptcy................................................18
Section 4.04. Restrictions on Servicer's Power..........................18
Section 4.05. Majority Control..........................................18
ARTICLE V APPLICATION OF TRUST FUNDS; CERTAIN DUTIES.....................19
Section 5.01. Establishment of Trust Account............................19
Section 5.02. Application of Trust Funds................................19
Section 5.03. Method of Payment.........................................19
Section 5.04. Accounting and Reports to Certificateholders,
the Internal Revenue Service and Others...................20
Section 5.05. Signature on Returns; Tax Matters Partner.................20
ARTICLE VI AUTHORITY AND DUTIES OF OWNER TRUSTEE..........................20
Section 6.01. General Authority.........................................20
Section 6.02. General Duties............................................20
Section 6.03. Action upon Instruction...................................21
Section 6.04. No Duties Except as Specified in this Agreement
or in Instructions........................................22
Section 6.05. No Action Except Under Specified Documents
or Instructions...........................................22
Section 6.06. Restrictions..............................................22
ARTICLE VII CONCERNING THE OWNER TRUSTEE...................................23
Section 7.01. Acceptance of Trusts and Duties...........................23
Section 7.02. Furnishing of Documents...................................24
Section 7.03. Representations and Warranties............................24
Section 7.04. Reliance; Advice of Counsel...............................25
Section 7.05. Not Acting in Individual Capacity.........................25
Section 7.06. Owner Trustee Not Liable for Trust Certificates
or for Receivables........................................26
Section 7.07. Owner Trustee May Own Trust Certificates and Notes........26
Section 7.08. Doing Business in Other Jurisdictions.....................26
ii
Section 7.09. Paying Agent; Authenticating Agent........................27
Section 7.10. Licenses..................................................27
ARTICLE VIII COMPENSATION OF OWNER TRUSTEE..................................27
Section 8.01. Owner Trustee's Fees and Expenses.........................27
Section 8.02. Indemnification...........................................27
Section 8.03. Payments to the Owner Trustee.............................28
ARTICLE IX TERMINATION OF TRUST AGREEMENT.................................28
Section 9.01. Termination of Trust Agreement............................28
ARTICLE X SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES.........29
Section 10.01. Eligibility Requirements for Owner Trustee................29
Section 10.02. Resignation or Removal of Owner Trustee...................29
Section 10.03. Successor Owner Trustee...................................30
Section 10.04. Merger or Consolidation of Owner Trustee..................31
Section 10.05. Appointment of Co-Trustee or Separate Trustee.............31
ARTICLE XI MISCELLANEOUS..................................................32
Section 11.01. Supplements and Amendments................................32
Section 11.02. No Legal Title to Trust Estate in Certificateholders......34
Section 11.03. Limitations on Rights of Others...........................34
Section 11.04. Notices...................................................34
Section 11.05. Severability..............................................34
Section 11.06. Separate Counterparts.....................................35
Section 11.07. Successors and Assigns....................................35
Section 11.08. Covenants of the Depositor................................35
Section 11.09. No Petition...............................................35
Section 11.10. No Recourse...............................................35
Section 11.11. Headings..................................................36
Section 11.12. Governing Law.............................................36
Exhibit A Form of Trust Certificate A-1
Exhibit B Form of Assignment B-1
Exhibit C Form of Transferee Letter C-1
Exhibit D Form of Certificate of Trust of BMW Vehicle
Owner Trust 2004-A E-1
iii
