===============================================================================
AMENDED AND RESTATED TRUST AGREEMENT
between
BMW FS SECURITIES LLC
as Depositor,
and
WILMINGTON TRUST COMPANY,
as Owner Trustee
Dated as of April __, 2001
================================================================================
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....................7
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.....................................9
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..........................14
ARTICLE IV ACTIONS BY OWNER TRUSTEE.......................................15
Section 4.01. Prior Notice with Respect to Certain Matters.............15
i
TABLE OF CONTENTS
(continued)
Page
Section 4.02. Action by Certificateholders with Respect to
Certain Matters..........................................17
Section 4.03. Action by Certificateholders with Respect to
Bankruptcy...............................................18
Section 4.04. Restrictions on Certificateholders' Power................18
Section 4.05. Majority Control.........................................18
ARTICLE V APPLICATION OF TRUST FUNDS; CERTAIN DUTIES.....................18
Section 5.01. Establishment of Trust Account...........................18
Section 5.02. Application of Trust Funds...............................19
Section 5.03. Method of Payment........................................20
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..........................21
Section 6.01. General Authority........................................21
Section 6.02. General Duties...........................................21
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.............................................23
Section 6.06. Restrictions.............................................23
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........................26
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
TABLE OF CONTENTS
(continued)
Page
Section 7.09. Paying Agent; Authenticating Agent.......................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 Certificate of Trust....................................A-1
Exhibit B Assignment......................................................B-1
Exhibit C Form of Transferee Certificate..................................D-1
iii
TABLE OF CONTENTS
(continued)
Page
Exhibit D Form of Certificate of Trust of BMW Vehicle
Owner Trust 2001-A..............................................E-1
iv
This AMENDED AND RESTATED TRUST AGREEMENT, dated as of April __, 2001, 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").
NOW, THEREFORE, the Depositor and the Owner Trustee hereby agree as
follows:
ARTICLE 1
DEFINITIONS
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 April __, 2001, among the Trust, BMW Financial Services
NA, LLC, as Owner Trust Administrator and The Chase Manhattan Bank, 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.
"Business Trust Statute" shall mean Chapter 38 of Title 12 of the Delaware
Code, 12 Del. Code ss. 3801 et seq., as the same may be amended from time to
time.
"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 of Exhibit D filed for the Trust pursuant to Section 3810(a) of the
Business 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.
"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 _____ __, 2001 between
the Trust and The Chase Manhattan Bank, as Indenture Trustee.
"Indenture Trustee" shall mean The Chase Manhattan Bank, a New York banking
corporation.
"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 The Chase Manhattan Bank.
"Person" shall mean any individual, corporation, estate, partnership,
limited liability company, joint venture, association, joint stock company,
trust or business trust (including any beneficiary thereof), unincorporated
organization or government or any agency or political subdivision thereof.
"Record Date" shall mean, with respect to a Payment Date, the close of
business on the day immediately preceding such Payment Date.
2
"Sale and Servicing Agreement" shall mean the Sale and Servicing Agreement
dated as of _____ __, 2001, 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.
"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 established 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 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.
3
(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; "or" includes "and/or"; 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
Section 2.01. Name. The Trust created hereby shall be known as "BMW Vehicle
Owner Trust 2001-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 on 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 and the Trust Certificates,
to purchase the Initial Receivables, to fund the Pre-Funding Account, the
Capitalized Interest Account and the Reserve Account, to pay the organizational,
start-up and transactional expenses of the Trust and to pay the balance of such
proceeds to the Depositor pursuant to the Sale and Servicing Agreement;
4
(c) to assign, grant, transfer, pledge, mortgage and convey 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 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. The Depositor
hereby sells, assigns, transfers, conveys and sets over to the Owner Trustee, as
of the date hereof, the sum of $1.00. The Owner Trustee hereby acknowledges
receipt in trust from the Depositor, as of the date hereof, 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 business trust under the Business
Trust Statute and that this Agreement constitute the governing instrument of
such business 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 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
5
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 Business Trust Statute with respect to accomplishing the
purposes of the Trust.
Section 2.07. [Reserved].
Section 2.08. Title to Trust Property. Subject to 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 Delaware or New York, and payments will be made by the Trust
only from Delaware or 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.
(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 corporate action; and the execution,
delivery and performance of
6
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 2.11, if
the Trust Certificates are held solely by the Depositor, the application of this
Section 2.11 shall be disregarded.
7
ARTICLE III
TRUST CERTIFICATES AND TRANSFER OF INTERESTS
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
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 The Chase Manhattan Bank, 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.
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 The Chase Manhattan Bank as
its authenticating agent to authenticate and deliver), in the name of the
designated transferee or transferees, one or more new Trust Certificates in
authorized denominations of a like aggregate amount dated the date of
authentication by the Owner Trustee or any authenticating
8
agent. At the option of a Certificateholder, Trust Certificates may be exchanged
for other Trust Certificates of authorized denominations of a like aggregate
amount 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 The Chase Manhattan Bank, 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 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
9
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 3.07.
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 The Chase Manhattan Bank
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. 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
10
Agent of its obligations under this Agreement or any other Basic Document. The
Paying Agent initially shall be The Chase Manhattan Bank, and any co-paying
agent chosen by Wilmington Trust Company. The Chase Manhattan Bank shall be
permitted to resign as Paying Agent upon 30 days' written notice to the Owner
Trustee. In the event that The Chase Manhattan Bank 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 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
11
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. 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) (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) (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) (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 (which will 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.
12
(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 Deposition 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 ___%, (B) it causes its
proposed transferee to provide to the Trust and the Depositor a letter
substantially in the form of Exhibit C 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, 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.
13
(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 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.
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 3.11, 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.
(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
14
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) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OR (C) 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 "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.
15
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 Certificateholders of record as of the preceding Record Date in writing of
the proposed action and such Certificateholders shall not have notified the
Owner Trustee in writing prior to the 30th day after such notice is given that
such Certificateholders have 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 Business 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;
(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 of 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;
16
(i) except as provided in Article IX hereof, 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 hereof;
(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 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 Certificateholders and to the extent otherwise consistent with the Basic
Documents, to (i) remove or replace the Servicer or 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 the writing its inability to pay its debts generally as they become
due, (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
17
take, and shall not take, any Bankruptcy Action with respect to the Trust or
direct the Owner Trust to take any Bankruptcy Action with respect to the Trust.
Section 4.02. Action by Certificateholders with Respect to Certain Matters.
The Owner Trustee shall not have the power, except upon the written direction of
the Certificateholders, 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) of such
document, 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 Certificateholders' Power. The
Certificateholders 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 Certificate Percentage Interests. 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 Certificate Percentage Interests 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
18
Account shall be "BMW Vehicle Owner Trust 2001-A: Certificate Distribution
Account for the benefit of the Certificateholders".
(12) 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.
(c) In the event that any withholding tax is imposed on the Trust's payment
(or allocations of income) to a Certificateholder, such tax shall reduce the
amount otherwise distributable to such Certificateholder in accordance with this
Section. The Owner Trustee or Paying Agent is hereby authorized and directed to
retain from amounts otherwise distributable to the Certificateholders sufficient
funds for the payment of any tax that is legally owed by the Trust (but such
authorization shall not prevent the Owner Trustee or the Paying Agent from
contesting any such tax in appropriate proceedings and withholding payment of
such tax, if permitted by law, pending the outcome of such proceedings). The
amount of any withholding tax imposed with respect to a Certificateholder shall
be treated as cash distributed to such Certificateholder at the time it is
withheld by the Trust and remitted to the appropriate taxing authority. If there
is a possibility that withholding tax is payable with respect to a distribution
(such as a distribution to a non-U.S. Certificateholder, the Owner Trustee or
the Paying Agent may in its sole discretion withhold such amounts in accordance
with this paragraph. Any Holder of a Trust Certificate that is organized under
the laws of a jurisdiction outside the United States shall, on or prior to the
date such Holder becomes a Holder, (a) so notify the Owner Trustee and the
Paying Agent, (b) (i) provide the Owner Trustee and the Paying Agent with the
necessary forms to claim an exemption from United States
19
withholding tax or a reduction in the rate thereof or (ii) notify the Owner
Trustee or the Paying Agent, as applicable, that it is not entitled to such an
exemption or reduction. Any such Holder agrees by its acceptance of a Trust
Certificate, on an ongoing basis, to provide like certification for each taxable
year and to notify the Owner Trustee and the Paying Agent should subsequent
circumstances arise affecting the information provided the Owner Trustee or the
Paying Agent in clauses (a) and (b) above. The Owner Trustee and the Paying
Agent shall be fully protected in relying upon, and each Holder by its
acceptance of a Trust Certificate hereunder agrees to indemnify and hold the
Owner Trustee and the Paying Agent harmless against all claims or liability of
any kind arising in connection with or related to the Owner Trustee's and the
Paying Agent's reliance upon any documents, forms or information provided by any
Holder to the Owner Trustee and the Paying Agent.
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 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 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), (d) cause such tax returns to be
signed in the manner required by law and (e) collect or cause to be collected
any withholding tax as described in and in accordance with Section 5.02(c) with
respect to income or distributions to Certificateholders. The parties to this
Agreement agree and acknowledge that the Administrator shall perform the duties
and obligations of the Owner Trustee under this Section 5.05 in accordance with
the Administration Agreement.
Section 5.05. Signature on Returns; Tax Matters Partner.
20
(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:
(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.
21
(a) Subject to Article IV and in accordance with the terms of the Basic
Documents, the Certificateholders 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 Certificateholders 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.
(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 Certificateholders of
record as of the preceding Record Date 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
22
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 6.04; 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 to
that, to the 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 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;
23
(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
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;
(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; and
(g) The Owner Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Agreement, or to institute, conduct or
defend any litigation under this Agreement or otherwise or in relation to this
Agreement or any Basic Document, at the request, order or direction of any of
the Certificateholders, unless such Certificateholders 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.
Section 7.02. Furnishing of Documents. The Owner Trustee shall furnish to
the Certificateholders, promptly upon receipt of a written request therefor,
duplicates or
24
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.
(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
Business 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 P-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.
25
(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 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
26
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 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.
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
27
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 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
28
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 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 Business 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 Business 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 P-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
29
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 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
30
other things as may reasonably be required for fully and certainly vesting and
confirming in the successor Owner Trustee all such rights, powers, duties and
obligations.
No successor Owner Trustee shall accept appointment as provided in this
Section unless at the time of such acceptance such successor Owner Trustee shall
be eligible pursuant to Section 10.01.
Upon acceptance of appointment by a successor Owner Trustee pursuant to
this Section, the 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 corporate trust business of the
Owner Trustee, shall be the successor of the Owner Trustee hereunder, without
the execution or filing of any instrument or any further act on the part of any
of the parties hereto, 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
31
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 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.
32
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 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 downgrading 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 Certificate Percentage Interests, 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.
33
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.
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 Risk & Finance, 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
34
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 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
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
35
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.
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:
-------------------------------------
Name:
Title:
By:
-------------------------------------
Name:
Title:
WILMINGTON TRUST COMPANY, as
Owner Trustee
By:
-------------------------------------
Name:
Title:
37
EXHIBIT A
FORM OF TRUST CERTIFICATE
BMW VEHICLE OWNER TRUST 2001-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, PLEDED OR TRANSFERRED ONLY (A) SO LONG AS
THE CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, SUCH TO A 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) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OR (C) 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
WHICH CASE THE OWNER TRUSTEE SHALL REQUIRE (I) THAT 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 (II) IF REQUESTED BY THE OWNER TRUSTEE, A
WRITTEN OPINION OF COUNSEL (WHICH SHALL NOT BE AT THE EXPENSE OF THE OWNER
TRUSTEE) SATISFACTORY TO THE OWNER TRUSTEE AND THE DEPOSITOR, TO THE EFFECT THAT
SUCH TRANSFER WILL NOT
A-1
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 2001-A
(the "Trust") formed by BMW FS Securities LLC, a Delaware limited liability
company (the "Depositor").
The Trust was created pursuant to an Amended and Restated Trust Agreement
dated as of April __, 2001 (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 The Chase
Manhattan Bank , as Indenture Trustee ("Indenture Trustee"), dated as of April [
], 2001, 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 2001-A Asset Backed Trust Certificates
(herein called the "Trust Certificates"). Also issued under the Indenture dated
as of April [ ], 2001, between the Trust, as issuer and Indenture Trustee, are
five classes of Notes designated as Class A-1 Asset Backed Notes (the "Class A-1
Notes"), ___% Class A-2 Asset Backed Notes (the "Class A-2 Notes"), ___% Class
A-3 Asset Backed Notes (the "Class A-3 Notes"), ___% 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 ___% Class B Asset
Backed Notes (the "Class B Notes" and, together with the Class 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
A-2
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 April __, 2001, 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 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
A-3
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.
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
A-4
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 2001-A
By: WILMINGTON TRUST COMPANY,
not in its individual capacity,
but solely as Owner Trustee
Dated:____________ By:________________________________
Authorized Signatory
WILMINGTON TRUST COMPANY,
not in its individual
capacity, but solely as
Owner Trustee
By:_____________________
Authenticating Agent
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, as
owner trustee
By:________________________________
Name:
Title:
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 CERTIFICATE
[Date]
BMW Vehicle Owner Trust 2001-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 $____ Asset Backed Trust
Certificates (the "Trust Certificates") of BMW Vehicle Owner Trust 2001-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 its own institutional account (and
not for the account of others) or as a fiduciary or agent for others (which
others also are QIBs);We are a "qualified institutional buyer" as defined in
Rule 144A ("QIB") and are acquiring the Trust Certificate 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);
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,
C-1
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 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 will 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 Deposition 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 ___%, (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. 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
C-2
investment in the entity. Each Person who acquires any Trust Certificate or
interest therein will certify that the foregoing conditions are satisfied.
i. 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.
j. We understand that the Trust Certificates will bear legends
substantially as set forth in Section 3.12 of the Trust Agreement;
k. If we are acquiring any Trust Certificates for the account of one or
more qualified institutional buyers, 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; and
l. 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:
C-3
EXHIBIT D
FORM OF CERTIFICATE OF TRUST OF BMW VEHICLE OWNER TRUST 2001-A
This CERTIFICATE OF TRUST of BMW VEHICLE OWNER TRUST 2001-A (the "Trust"),
dated April ___, 2001, is being duly executed and filed by [Wilmington Trust
Company], a Delaware banking corporation, as trustee, to form a business trust
under the Delaware Business Trust Act (12 Del. Code, ss. 3801 et seq.).
1. Name. The name of the business trust formed hereby is BMW VEHICLE OWNER
TRUST 2001-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
