BMW AUTO LEASING LLC, as Transferor, and WILMINGTON TRUST, NATIONAL ASSOCIATION, as Owner Trustee
Exhibit 10.7
and
WILMINGTON TRUST, NATIONAL ASSOCIATION,
as Owner Trustee
as Owner Trustee
|
FORM OF AMENDED AND RESTATED TRUST
AGREEMENT Dated as of February 14, 2024 |
TABLE OF CONTENTS
Page
|
1
|
||
|
Section 1.01.
|
Capitalized Terms
|
1
|
|
Section 1.02.
|
Interpretive Provisions.
|
5
|
|
ARTICLE TWO ORGANIZATION
|
6
|
|
|
Section 2.01.
|
Name and Status
|
6
|
|
Section 2.02.
|
Office
|
6
|
|
Section 2.03.
|
Purposes and Powers.
|
6
|
|
Section 2.04.
|
Appointment of Owner Trustee
|
7
|
|
Section 2.05.
|
Initial Capital Contribution of Owner Trust Estate
|
7
|
|
Section 2.06.
|
Declaration of Trust
|
8
|
|
Section 2.07.
|
Liability of the Transferor.
|
8
|
|
Section 2.08.
|
Title to Trust Property
|
8
|
|
Section 2.09.
|
Situs of Issuer
|
8
|
|
Section 2.10.
|
Representations and Warranties of the Transferor
|
8
|
|
ARTICLE THREE TRUST CERTIFICATES AND TRANSFER OF INTERESTS
|
10
|
|
|
Section 3.01.
|
Initial Ownership
|
10
|
|
Section 3.02.
|
The Trust Certificates
|
10
|
|
Section 3.03.
|
Authentication and Delivery of Trust Certificates
|
10
|
|
Section 3.04.
|
Registration of Transfer and Exchange.
|
11
|
|
Section 3.05.
|
Mutilated, Destroyed, Lost or Stolen Trust Certificates
|
14
|
|
Section 3.06.
|
Persons Deemed Trust Certificateholders
|
14
|
|
Section 3.07.
|
Access to List of Trust Certificateholders’ Names and Addresses
|
15
|
|
Section 3.08.
|
Maintenance of Office or Agency
|
15
|
|
Section 3.09.
|
Appointment of Paying Agent
|
15
|
|
Section 3.10.
|
Ownership of Trust Certificate
|
16
|
|
Section 3.11.
|
Trust Certificates held by Issuer, Transferor or their Affiliates
|
16
|
|
ARTICLE FOUR ACTIONS BY OWNER TRUSTEE
|
16
|
|
|
Section 4.01.
|
Prior Notice to Trust Certificateholders with Respect to Certain Matters
|
16
|
|
Section 4.02.
|
Action by Trust Certificateholders with Respect to Certain Matters
|
17
|
|
Section 4.03.
|
Action by Owner Trustee with Respect to Bankruptcy
|
17
|
|
Section 4.04.
|
Restrictions on Trust Certificateholders’ Power
|
17
|
|
Section 4.05.
|
Majority Control
|
18
|
|
ARTICLE FIVE APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
|
18
|
|
|
Section 5.01.
|
Establishment of Certificate Distribution Account; Deposit Into Reserve Fund.
|
18
|
|
Section 5.02.
|
Application of Trust Funds.
|
18
|
|
Section 5.03.
|
Method of Payment
|
19
|
|
Section 5.04.
|
Accounting and Reports.
|
19
|
|
ARTICLE SIX AUTHORITY AND DUTIES OF OWNER TRUSTEE
|
20
|
|
|
Section 6.01.
|
General Authority
|
20
|
|
Section 6.02.
|
General Duties
|
20
|
|
Section 6.03.
|
Action Upon Instruction.
|
21
|
|
Section 6.04.
|
No Duties Except as Specified
|
22
|
|
Section 6.05.
|
No Action Unless Specifically Authorized
|
22
|
|
Section 6.06.
|
Restrictions
|
22
|
|
Section 6.07.
|
Owner Trustee to Provide Information
|
23
|
|
ARTICLE SEVEN CONCERNING THE OWNER TRUSTEE
|
23
|
|
|
Section 7.01.
|
Acceptance of Trusts and Duties
|
23
|
|
Section 7.02.
|
Doing Business in Other Jurisdictions
|
26
|
|
Section 7.03.
|
Furnishing of Documents
|
26
|
|
Section 7.04.
|
Representations and Warranties
|
27
|
|
Section 7.05.
|
Reliance; Advice of Counsel.
|
27
|
|
Section 7.06.
|
Not Acting in Individual Capacity
|
28
|
|
Section 7.07.
|
Owner Trustee Not Liable for Trust Certificates
|
28
|
|
Section 7.08.
|
Owner Trustee May Own Trust Certificates and Notes
|
28
|
|
ARTICLE EIGHT COMPENSATION OF OWNER TRUSTEE
|
29
|
|
|
Section 8.01.
|
Owner Trustee’s Compensation and Indemnification.
|
29
|
|
ARTICLE NINE TERMINATION OF TRUST AGREEMENT
|
30
|
|
|
Section 9.01.
|
Termination of Trust Agreement.
|
30
|
ii
|
ARTICLE TEN SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
|
31
|
|
|
Section 10.01.
|
Eligibility Requirements for Owner Trustee
|
31
|
|
Section 10.02.
|
Resignation or Removal of Owner Trustee
|
31
|
|
Section 10.03.
|
Successor Owner Trustee
|
32
|
|
Section 10.04.
|
Merger or Consolidation of Owner Trustee
|
33
|
|
Section 10.05.
|
Appointment of Co‑Trustee or Separate Trustee
|
33
|
|
ARTICLE ELEVEN TAX MATTERS
|
34
|
|
|
Section 11.01.
|
Tax and Accounting Characterization.
|
34
|
|
Section 11.02.
|
Signature on Returns; Partnership Representative.
|
35
|
|
Section 11.03.
|
Tax Reporting
|
35
|
|
ARTICLE TWELVE MISCELLANEOUS
|
35
|
|
|
Section 12.01.
|
Amendments.
|
35
|
|
Section 12.02.
|
No Legal Title to Owner Trust Estate
|
37
|
|
Section 12.03.
|
Limitations on Rights of Others
|
37
|
|
Section 12.04.
|
Notices
|
37
|
|
Section 12.05.
|
Severability
|
38
|
|
Section 12.06.
|
Counterparts
|
38
|
|
Section 12.07.
|
Successors and Assigns
|
38
|
|
Section 12.08.
|
No Petition
|
38
|
|
Section 12.09.
|
No Recourse
|
39
|
|
Section 12.10.
|
Headings
|
39
|
|
Section 12.11.
|
Governing Law
|
39
|
|
Section 12.12.
|
Certificates Nonassessable and Fully Paid
|
39
|
|
Section 12.13.
|
Communications with Rating Agencies
|
39
|
|
Section 12.14.
|
Financial Crimes Enforcement Network’s Customer Due Diligence Requirements
|
39
|
|
ARTICLE THIRTEEN COMPLIANCE WITH REGULATION AB
|
40
|
|
|
EXHIBITS
|
||
|
Exhibit A ‑ Form of Trust Certificate
|
A‑1
|
|
|
Exhibit B ‑ Form of Rule 144A Certificate
|
B‑1
|
|
|
Exhibit C ‑ Form of Rule 144A Letter
|
C‑1
|
|
|
Exhibit D ‑ Form of Investment Letter
|
D‑1
|
|
iii
AMENDED AND RESTATED TRUST AGREEMENT
This Amended and Restated Trust Agreement, dated as of February 14, 2024, is between BMW Auto Leasing LLC, a Delaware limited liability company, as
transferor (the “Transferor”), and Wilmington Trust, National Association, a national banking association, as owner trustee (the “Owner Trustee”).
WHEREAS, the parties hereto entered into that certain initial trust agreement dated as of January 23, 2024 (the “Initial Trust Agreement”)
pursuant to which the BMW Vehicle Lease Trust 2024-1 was created; and
WHEREAS, the parties hereto are entering into this Agreement pursuant to which, among other things, the Initial Trust Agreement will be amended and
restated and the Trust Certificates will be issued.
NOW, THEREFORE, in consideration of the mutual agreements herein contained, and of other good and valuable consideration, the receipt and adequacy
of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE ONE
Section 1.01. Capitalized Terms. Capitalized terms used herein that are
not otherwise defined shall have the meanings ascribed thereto in the SUBI Trust Agreement, the Servicing Agreement or the Indenture, as the case may be. Whenever used herein, unless the context otherwise requires, the following words and phrases
shall have the following meanings:
“Administrator” means BMW FS, as Administrator under the Issuer Administration Agreement, and its successors in such capacity.
“Agreement” means this Amended and Restated Trust Agreement, as the same may be amended or supplemented from time to time.
“Applicable Law” has the meaning set forth in Section 12.14.
“Authenticating Agent” means any Person authorized by the Owner Trustee to act on behalf of the Owner Trustee to authenticate and deliver the Trust Certificates.
“Basic Servicing Agreement” means that certain servicing agreement, dated as of August 30, 1995, between the Vehicle Trust, BMW Manufacturing L.P. and BMW FS, as servicer.
“Benefit Plan” means (i) an employee benefit plan, as defined in Section 3(3) of ERISA, that is subject to Title I of ERISA, (ii) a plan described in Section 4975(e)(1) of the Code, that is
subject to Section 4975 of the Code, (iii) a governmental or church plan, as defined in Sections 3(32) and 3(33) of ERISA, respectively, subject to any federal, state or local law which is substantially similar to the provisions of Section 406 of
ERISA or Section 4975 of the Code,
“Certificate Distribution Account” means the segregated account established pursuant to Section 5.01(a).
“Certificate Percentage Interest” means with respect to any Trust Certificate, the percentage interest of ownership in the Issuer represented thereby as set forth on the face thereof.
“Certificate Register” and “Certificate Registrar” means the register mentioned in and the registrar appointed pursuant to Section 3.04.
“Certificate of Trust” means the Certificate of Trust filed for the Issuer pursuant to Section 3810(a) of the Statutory Trust Statute.
“Control Agreement” means that certain control agreement, dated as of February 14, 2024, among the Issuer, U.S. Bank Trust Company, National Association, as Indenture Trustee and secured
party, and U.S. Bank National Association, as securities intermediary, as amended and supplemented from time to time.
“Controlling Party” means a senior or executive officer or senior manager or any other individual who regularly performs similar functions; including any individual who performs such function
indirectly through a Person that beneficially owns or controls the Issuer or an agent of the Issuer.
“Distribution Account” means either the Note Distribution Account or the Certificate Distribution Account, as the context may require.
“Distribution Statement” has the meaning set forth in Section 5.02(c).
“Expenses” means all liabilities, obligations, losses, damages, taxes, claims, actions and suits, and any and all reasonable costs, expenses and disbursements (including reasonable legal fees
and expenses, and including those incurred by an Indemnified Party in connection with the enforcement of any indemnification or other obligation of the Issuer) of any kind and nature whatsoever.
“Fiscal Year” means the taxable year of the Issuer which shall be the fiscal year ending December 31st of each
year.
“Indemnified Parties” has the meaning set forth in Section 8.01(a).
“Indenture” means that certain indenture, dated as of February 14, 2024, between the Issuer and U.S. Bank Trust Company, National Association, as Indenture Trustee, as amended or supplemented
from time to time, its successors in interest and any successor trustee under the Indenture.
2
“Initial Deposit” means the Transferor’s deposit to the Reserve Fund, on or before the Closing Date, of $3,742,088.15.
“Initial Note Balance” means the aggregate initial principal amount of the Notes.
“Interest” means, as of any date, the ownership interest of a Trust Certificateholder (including the Transferor as holder of the Trust Certificate) in the Issuer as of such date, including the
right of such Trust Certificateholder to any and all benefits to which such Trust Certificateholder may be entitled as provided in this Agreement, together with the obligations of such Trust Certificateholder to comply with all the terms and
provisions of this Agreement.
“Investment Company Act” means the Investment Company Act of 1940, as amended.
“Issuer” means the BMW Vehicle Lease Trust 2024-1, and its successors.
“Issuer Administration Agreement” means that certain issuer administration agreement, dated as of February 14, 2024, among the Issuer, the Indenture Trustee, the Transferor and the
Administrator, as amended or supplemented from time to time.
“Issuer SUBI Certificate Transfer Agreement” means that certain issuer SUBI certificate transfer agreement, dated as of February 14, 2024, between the Transferor and the Issuer, as amended or
supplemented from time to time.
“Note” means any of the $195,000,000 Class A-1 Notes, $290,000,000 Class A-2a Notes, $197,500,000 Class A-2b Notes, $487,500,000 Class A-3 Notes or $130,000,000 Class A-4 Notes.
“Noteholder” means the registered holder of a Note.
“Offered Securities” means the Notes.
“Opinion of Counsel” means one or more written opinions of counsel who may, except as otherwise expressly provided in this Agreement, be employees of or counsel to the Transferor, the
Administrator or any of their respective Affiliates, and who shall be satisfactory to the Owner Trustee and which opinion or opinions shall be addressed to the Owner Trustee and be in form and substance satisfactory to the Owner Trustee. Opinions of
Counsel need to address matters of law only, and may be based upon stated assumptions as to relevant matters of fact.
“Optional Purchase” has the meaning set forth in Section 2.19 of the Servicing Agreement.
“Optional Purchase Price” has the meaning set forth in Section 2.19 of the Servicing Agreement.
“Outstanding Amount” has the meaning ascribed to the term in the Indenture.
“Owner Corporate Trust Office” means the principal office of the Owner Trustee at which at any particular time its corporate trust business shall be administered, which office at the
3
“Owner Trust Estate” has the same meaning as “Trust Estate” under the Indenture.
“Paying Agent” means any paying agent or co‑paying agent appointed pursuant to Section 3.09, and shall initially be U.S. Bank Trust Company, National Association.
“Qualified Institutional Buyer” has the meaning ascribed thereto in Rule 144A.
“Rating Agency Condition” has the meaning set forth in the Indenture.
“Record Date” means, with respect to any Payment Date, the close of business on the Business Day immediately preceding such Payment Date.
“Regulation AB” means Subpart 229.1100 – Asset Backed Securities (Regulation AB), 17 C.F.R. §§229.1100-229.1125, as such may be amended from time to time, and
subject to such clarification and interpretation as have been provided by the Commission in the adopting releases (Asset-Backed Securities, Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005) and Asset-Backed
Securities Disclosure and Registration, Securities Act Release No. 33-9638, 79 Fed. Reg. 57,184 (Sept. 24, 2014)) or by the staff of the Commission, or as may be provided by the Commission or its staff from time to time.
“Reserve Fund” means the account established pursuant to Section 8.02(a) of the Indenture.
“Responsible Officer” means, with respect to the Owner Trustee, any officer in the corporate trust department of the Owner Trustee with direct responsibility for the administration of this
Agreement.
“Rule 144A” means Rule 144A under the Securities Act.
“Rule 144A Information” means information requested of the Transferor, in connection with the proposed transfer of a Trust Certificate, to satisfy the requirements of paragraph (d)(4) of Rule
144A.
“Secretary of State” means the Secretary of State of the State of Delaware.
“Securities Act” means the Securities Act of 1933, as amended.
“Security” means either a Note or a Trust Certificate, as the context may require.
“Securityholder” means each registered holder of a Security.
4
“Servicing Agreement” means the Basic Servicing Agreement as supplemented by that certain supplement, dated as of February 14, 2024, among the parties to the Basic Servicing Agreement, as
amended or supplemented from time to time.
“Statutory Trust Statute” means Chapter 38 of Title 12 of the Delaware Code, 12 Del. C. §3801 et seq., as the same may be amended from time to time.
“SUBI Trust Agreement” means the Vehicle Trust Agreement as supplemented by that certain supplement, dated as of February 14, 2024, among the parties to the Vehicle Trust Agreement, as amended
or supplemented from time to time.
“Transferor” means initially, BMW Auto Leasing LLC, a Delaware limited liability company.
“Treasury Regulations” means regulations, including proposed or temporary regulations, promulgated under the Code. References herein to specific provisions of proposed or temporary
regulations shall include analogous provisions of final Treasury Regulations or other successor Treasury Regulations.
“Trust Certificateholder” means the Person in whose name a Trust Certificate is registered on the Certificate Register.
“Trust Certificates” means the Asset Backed Certificates issued pursuant to this Agreement, substantially in the form of Exhibit A.
“Underwriter” means Barclays Capital Inc., as representative for the several underwriters pursuant to the Underwriting Agreement.
“Underwriting Agreement” means that certain underwriting agreement, dated February 6, 2024, among the Underwriter, the Transferor and BMW FS.
“Vehicle Trust” means Financial Services Vehicle Trust, a Delaware statutory trust.
“Vehicle Trust Agreement” means that certain trust agreement, dated as of August 30, 1995, as amended and restated as of September 27, 1996, as further amended as of May 25, 2000 and December
1, 2006, between BMW Manufacturing L.P., as Grantor and UTI Beneficiary, and BNY Mellon Trust of Delaware, formerly known as The Bank of New York (Delaware), as trustee.
“Vehicle Trustee” means BNY Mellon Trust of Delaware, formerly known as The Bank of New York (Delaware), in its capacity as trustee of the Vehicle Trust, or any successor thereto in such
capacity.
(a) For all purposes of this Agreement, except as
otherwise expressly provided or unless the context otherwise requires, (i) terms used herein include, as appropriate, all genders and the plural as well as the singular, (ii) references to words
5
such as “herein”, “hereof” and the like shall refer to this Agreement as a whole and not to any particular part, article or section within this Agreement, (iii) references to a section such as “Section 1.01” and the like shall refer to the applicable section of this Agreement and (iv) the term “include” and all variations thereof shall mean “include without limitation”.
(b) As used in this Agreement and in any
certificate or other document made or delivered pursuant hereto, accounting terms not defined in this Agreement or in any such certificate or other document, and accounting terms partly defined in this Agreement or in any such certificate or other
document to the extent not defined, shall have the respective meanings given to them under generally accepted accounting principles. To the extent that the definitions of accounting terms in this Agreement or in any such certificate or other
document are inconsistent with the meanings of such terms under generally accepted accounting principles, the definitions contained in this Agreement or in any such certificate or other document shall control.
ARTICLE TWO
Section 2.01. Name and Status. The trust continued hereby shall be known as “BMW Vehicle Lease Trust
2024-1”, in which name the Issuer may engage in activities as permitted by the Basic Documents, make and execute contracts and other instruments and sue and be sued, to the extent provided herein. It is the intention of the parties hereto that the
Issuer shall be a statutory trust under the Statutory Trust Statute, and that this Agreement shall constitute the governing instrument of that statutory trust.
Section 2.02. Office. The chief executive office and principal place of business of the Issuer shall
be in care of the Owner Trustee, initially at the Owner Corporate Trust Office and thereafter at such other address as the Owner Trustee may designate by written notice to the Trust Certificateholders and the Transferor.
(a) The purposes of the Issuer are: (i) at the
direction of the Trust Certificateholders, to take assignments and conveyances of certain assets from time to time, to hold such assets in trust and to collect and disburse the periodic income therefrom for the benefit of the Trust
Certificateholders, (ii) to engage in any of the other activities described or authorized in this Agreement, any supplement or any amendment hereto or thereto and (iii) to engage in any and all activities that are necessary or appropriate to
accomplish the foregoing or that are incidental thereto or connected therewith. The Issuer shall not be employed for any purpose except as duly authorized in accordance with the provisions of this Agreement.
(b) The initial sole purpose of the Issuer is to
conserve the Owner Trust Estate and collect and disburse the periodic income therefrom for the use and benefit of the
6
Trust Certificateholders, and in furtherance of such purpose to engage in the following ministerial activities:
(i) to issue the Notes pursuant to the Indenture,
the Trust Certificates pursuant to this Agreement, and to sell the Notes upon the written order of the Transferor;
(ii) to acquire the 2024-1 SUBI Certificate from
the Transferor and the other property of the Owner Trust Estate, in exchange for the Notes and the Trust Certificate;
(iii) to pay interest on and principal of the
Notes and distributions on the Trust Certificates;
(iv) to assign, xxxxx, transfer, pledge, mortgage
and convey the Owner Trust Estate pursuant to the Indenture to the Indenture Trustee as security for the Notes and to hold, manage and distribute to the Trust Certificateholders pursuant to the terms of this Agreement any portion of the Owner Trust
Estate released from the Lien of, and remitted to the Issuer pursuant to, the Indenture;
(v) to enter into and perform its obligations
under the Basic Documents to which the Issuer is a party;
(vi) to engage in other transactions, including
entering into agreements, that are necessary, suitable or convenient to accomplish the foregoing or that are incidental thereto or connected therewith; and
(vii) subject to compliance with
the Basic Documents, to engage in such other activities as may be required in connection with conservation of the Owner Trust Estate and the making of distributions to the Trust Certificateholders and the Noteholders.
(c) The Issuer shall not engage in any activity
other than in connection with the foregoing or other than as required or authorized by the terms of this Agreement or the other Basic Documents.
Section 2.04. Appointment of Owner Trustee. The Transferor hereby appoints the Owner Trustee as
trustee of the Issuer effective as of the date hereof, to have all the rights, powers and duties set forth herein, and the Owner Trustee hereby accepts such appointment. All actions taken by the Owner Trustee are solely in its capacity as owner
trustee, and not in an individual capacity.
Section 2.05. Initial Capital Contribution of Owner Trust Estate. The Transferor hereby sells,
assigns, transfers, conveys and sets over to the Owner Trustee, as of the date hereof, the sum of $1.00. The Owner Trustee hereby acknowledges receipt in trust from the Transferor, as of the date hereof, of the foregoing contribution, which shall
constitute the initial Owner Trust Estate and shall be deposited in the Certificate Distribution Account. The Transferor shall pay organizational expenses of the Issuer as they may arise or shall, upon the request of the Owner
7
Section 2.06. Declaration of Trust. The Owner Trustee hereby declares that it will hold the Owner
Trust Estate in trust upon and subject to the conditions set forth herein for the sole purpose of conserving the Owner Trust Estate and collecting and disbursing the periodic income therefrom for the use and benefit of the Trust Certificateholders, who
are intended to be “beneficial owners” within the meaning of the Statutory Trust Statute, subject to the Lien of the Indenture Trustee and the obligations of the Issuer under the Basic Documents. Effective as of the date hereof, the Owner Trustee
shall have all rights, powers and duties set forth herein and under Delaware law for the sole purpose and to the extent necessary to accomplish the purpose of the Issuer as set forth in Sections 2.03(a) and 2.03(b).
The Transferor or any subsequent transferee, as holder of the Trust Certificate, shall defend, indemnify and hold harmless the Issuer, the Owner Trustee and each Paying Agent from and against any and
all taxes that may at any time be asserted against the Issuer or the Owner Trustee with respect to the transactions contemplated herein, including any sales, use, gross receipts, general corporation, tangible personal property, privilege, license or
income taxes, taxes on or measured by income or any state or local taxes assessed on the Issuer, the Owner Trustee or any Paying Agent resulting from the location of assets of the Issuer or the presence of the Owner Trustee or any Paying Agent and
costs and Expenses in defending against the same; provided, however, that the foregoing indemnity shall not include income taxes on any fees payable to, or Expenses reimbursed to, the Owner Trustee or any Paying Agent.
Section 2.08. Title to Trust Property. Legal title to the Owner Trust Estate shall be vested at
all times in the Issuer as a separate legal entity, except where applicable law in any jurisdiction requires title to any part of the Owner Trust Estate to be vested in a trustee, in which case title shall be deemed to be vested in the Owner Trustee,
on behalf of the Issuer, a co‑trustee or a separate trustee, as the case may be; provided that in no event shall title or any ownership interest in the Owner Trust Estate be vested in the name of the Owner Trustee without the express prior written
consent of the Owner Trustee (which may be withheld or conditioned by the Owner Trustee for any reason in good faith).
Section 2.09. Situs of Issuer. The Issuer shall be located and administered in the State of
Delaware. All bank accounts maintained by the Owner Trustee on behalf of the Issuer shall be located in Delaware or New York. The Issuer shall not have any employees in any state other than Delaware; provided, however, that nothing herein shall
restrict or prohibit the Owner Trustee from having employees within or without the State of Delaware. Payments shall be received by the Issuer only in Delaware or New York and payments shall be made by the Issuer only from Delaware or New York. The
only office of the Issuer shall be at the Owner Corporate Trust Office.
Section 2.10. Representations and Warranties of the Transferor. The Transferor hereby represents
and warrants to the Owner Trustee that:
8
(a) Organization and Good Standing.
The Transferor is duly organized and validly existing as a limited liability company in good standing under the laws of the State of Delaware, with the power and authority to own its properties and to conduct its business as such properties are
currently owned and such business is presently conducted.
(b) Due Qualification. The Transferor
is duly qualified to do business as a limited liability company in good standing, and has obtained all necessary licenses and approvals in all jurisdictions in which the conduct of its business requires such qualifications except when the failure to
have any such license, approval or qualification would not have a material adverse effect on the condition, financial or otherwise, of the Transferor or would not have a material adverse effect on the ability of the Transferor to perform its
obligations under this Agreement.
(c) Power and Authority. The
Transferor has (i) the power and authority to execute and deliver this Agreement and to carry out its terms; (ii) good title to and is the sole legal and beneficial owner of the 2024-1 SUBI Certificate, free and clear of Liens and claims; (iii) full
power and authority to transfer the 2024-1 SUBI Certificate to and deposit the same with the Issuer; (iv) duly authorized such transfer and deposit to the Issuer by all necessary action; and (v) duly authorized the execution, delivery and performance
of this Agreement by all necessary action.
(d) Binding Obligation. This Agreement
constitutes a legal, valid and binding obligation of the Transferor, enforceable in accordance with its terms, except as such enforceability may be subject to or limited by bankruptcy, insolvency, reorganization, moratorium, liquidation, fraudulent
conveyance or other similar laws affecting the enforcement of creditors’ rights in general and by general principles of equity, regardless of whether such enforceability shall be considered in a proceeding in equity or in law.
(e) No Violation. The consummation of
the transactions contemplated by this Agreement and the fulfillment of the terms of this Agreement do not conflict with or breach any of the terms or provisions of, or constitute (with or without notice or lapse of time) a default under, any material
indenture, agreement or other instrument to which the Transferor is a party or by which it shall be bound; nor result in the creation or imposition of any material Lien upon any of its properties pursuant to the terms of any such indenture, agreement
or other instrument (other than this Agreement); nor violate any law or, to the best of the Transferor’s knowledge, any order, rule or regulation applicable to the Transferor of any court or of any federal or State regulatory body, administrative
agency or other governmental instrumentality having jurisdiction over the Transferor or its properties.
(f) No Proceedings. There are no
proceedings or investigations pending, or to the Transferor’s knowledge, threatened, before any court, regulatory body, administrative agency or other governmental instrumentality having jurisdiction over the Transferor or its properties:
(i) asserting the invalidity of this Agreement or any of the other Basic Documents; (ii) seeking to prevent the issuance of the Notes or the Trust Certificates or the consummation of any of the transactions contemplated by this Agreement or any of the
other Basic Documents; (iii) seeking any determination or ruling that might materially
9
and adversely affect the performance by the Transferor of its obligations under, or the validity or enforceability of, this Agreement or any of the other Basic Documents; or (iv) relating to the
Transferor and that might adversely affect the U.S. federal and state income tax attributes of the Notes or the Trust Certificates.
ARTICLE THREE
Section 3.01. Initial Ownership. Upon the formation of the Issuer by the contribution by the
Transferor pursuant to Section 2.05 and until the issuance of the Trust Certificates, the Transferor shall be the sole beneficiary of the Issuer.
Section 3.02. The Trust Certificates. The Trust Certificates shall be substantially in the form
set forth in Exhibit A. Except for the issuance of the Trust Certificate to the Transferor, no Trust Certificate may be sold, pledged or otherwise transferred to any Person except in accordance with Section 3.04 and Section 3.10, as applicable, and
any attempted sale, pledge or transfer in violation of Section 3.04 or Section 3.10, as applicable, shall be null and void.
The Trust Certificates may be in printed or in typewritten form, and may be executed on behalf of the Issuer by manual or facsimile signature of an Authenticating Agent. Trust Certificates bearing the
manual or facsimile signatures of individuals who were, at the time when such signatures shall have been affixed, authorized to sign on behalf of the Issuer, shall be validly issued and entitled to the benefits of this Agreement, notwithstanding that
such individuals or any of them shall have ceased to be so authorized prior to the authentication and delivery of such Trust Certificates or did not hold such offices at the date of authentication and delivery of such Trust Certificates. If
registration of a transfer of a Trust Certificate is permitted pursuant to Section 3.04, the transferee of such Trust Certificate shall become a Trust Certificateholder, and shall be entitled to the rights and subject to the obligations of a Trust
Certificateholder hereunder, upon due registration of such Trust Certificate in such transferee’s name pursuant to Section 3.04.
Section 3.03. Authentication and Delivery of Trust Certificates. Concurrently with the transfer of
the 2024-1 SUBI Certificate to the Issuer, the Owner Trustee shall cause to be executed, on behalf of the Issuer, Trust Certificates representing 100% of the Certificate Percentage Interest, authenticated and delivered to or upon the written order of
the Transferor, in authorized denominations. No Trust Certificate shall entitle its holder to any benefit under this Agreement, or shall be valid for any purpose, unless there shall appear on such Security a certificate of authentication,
substantially in the form set forth in Exhibit A, executed by the Owner Trustee or its 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. Upon issuance, execution and delivery pursuant to the terms hereof, the Trust Certificates shall be entitled to the benefits of this Agreement.
10
Section 3.04. Registration of Transfer and Exchange.
(a) The Certificate Registrar shall cause to be kept a register
(the “Certificate Register”) in which, subject to such reasonable regulations as it may prescribe, the Certificate Registrar shall provide for the registration of Trust Certificates and, if and to the extent transfers and exchanges are permitted
pursuant to Section 3.04(b), the registration of transfers of Trust Certificates. No transfer of a Trust Certificate shall be recognized except upon registration of such transfer. U.S. Bank Trust Company, National Association is hereby appointed as
the initial “Certificate Registrar”. Upon any resignation of the Certificate Registrar, the Owner Trustee shall promptly appoint a successor.
(b) Each Trust Certificate shall bear a legend regarding
reoffers, resales, pledges and transfers to the effect of the legend on the form of Trust Certificate attached as Exhibit A hereto, unless determined otherwise by the Administrator (as certified to the Certificate Registrar in an Officer’s Certificate)
consistent with applicable law.
As a condition to the registration of any transfer of a Trust Certificate, the prospective transferee shall be required to represent in writing to the Owner Trustee, the Transferor and the Certificate
Registrar the following:
(i) It has neither acquired nor will it
transfer any Trust Certificate it purchases (or any interest therein) or cause any such Trust Certificates (or any interest therein) to be marketed on or through an “established securities market” within the meaning of Section 7704(b)(1) of the Code,
including, without limitation, an over‑the‑counter‑market or an interdealer quotation system that regularly disseminates firm buy or sell quotations.
(ii) It will be the beneficial owner of the
Trust Certificate and it either (A) is not, and will not become, a partnership, Subchapter S corporation or grantor trust for U.S. federal income tax purposes or (B) is such an entity, but none of the direct or indirect beneficial owners of any of the
interests in such transferee have allowed or caused, or will allow or cause, 50% or more (or such other percentage as the Transferor may establish prior to the time of such proposed transfer) of the value of such interests to be attributable to such
transferee’s ownership of Trust Certificates.
(iii) It understands that no subsequent
transfer of the Trust Certificates is permitted unless (A) such transfer is of a Trust Certificate with a Certificate Percentage Interest of at least 5%, (B) it causes its proposed transferee to provide to the Issuer, the Certificate Registrar and the
Underwriter a letter substantially in the form of Exhibit C hereto, or such other written statement as the Transferor shall prescribe and (C) the Transferor consents in writing to the proposed transfer, which consent shall be granted unless, after
consulting counsel, the Transferor determines that such transfer would create a risk that the Issuer or the Vehicle Trust would be characterized for U.S. federal income tax purposes as an association or a publicly traded partnership, in either case
taxable as a corporation; provided, however, that any attempted transfer that would either
11
cause (1) the number of registered holders of Trust Certificates, or trust certificates of any related issuer, in the aggregate to exceed 99 (provided that, each separate entity will be considered as a
single registered holder, regardless of the number of trust certificates held by such entity) or (2) the number of holders of direct or indirect interests in the Vehicle Trust to exceed 50, shall be a void transfer.
(iv) It understands that the Opinion of
Counsel to the Issuer that the Issuer will not be characterized as an association or a publicly traded partnership, in either case taxable as a corporation for U.S. federal income tax purposes is dependent in part on the accuracy of the
representations in paragraphs (i), (ii) and (iii) above.
(v) It is not a Benefit Plan nor will it hold
the Trust Certificates being transferred for the account of a Benefit Plan.
(vi) It is a Person who is either (A)(1) a
citizen or resident of the United States or (2) a corporation or partnership (including any entity treated as a corporation or partnership for U.S. federal income tax purposes) organized in or under the laws of the United States, any state or the
District of Columbia or (B) an estate the income of which is includible in gross income for U.S. federal income tax purposes, regardless of source or a trust if a court within the United States is able to exercise primary supervision of the
administration of the trust and one or more United States person(s) (as such term is defined in Section 7701(a)(30) of the Code) have the authority to control all substantial decisions of the trust. It agrees that it will provide a certification of
non‑foreign status signed under penalty of perjury (and such other certifications, representations or Opinions of Counsel as may be requested by the Transferor, the Owner Trustee and the Certificate Registrar).
(vii) It understands that any
purported transfer of any Trust Certificate (or any interest therein) in contravention of any of the restrictions and conditions in this Section shall be void, and the purported transferee in such transfer shall not be recognized by the Issuer or any
other Person as a Trust Certificateholder for any purpose.
(viii) No transfer of a
Certificate or any interest therein shall be made unless each prospective transferee represents and warrants, with respect to itself and each prospective beneficial owner of the Certificate, that it is not a member of an “expanded group” (within the
meaning of the Treasury Regulations issued under Section 385 of the Code) that includes a domestic corporation (as determined for U.S. federal income tax purposes) or a “controlled partnership” (within the meaning of Treasury Regulations issued under
Section 385 of the Code) of such expanded group where any member of such “expanded group” directly or indirectly (through one or more entities that are treated for U.S. federal income tax purposes as partnerships, disregarded entities, or grantor
trusts) owns Notes.
12
(c) By acceptance of any Trust Certificate, the related Trust
Certificateholder specifically agrees with and represents to the Transferor, the Issuer and Certificate Registrar that no transfer of such Trust Certificate shall be made unless the registration requirements of the Securities Act and any applicable
state securities laws are complied with, or such transfer is exempt from the registration requirements under the Securities Act because the transfer satisfies one of the following:
(i) Such transfer is in compliance with Rule
144A, to a transferee who the transferor reasonably believes is a Qualified Institutional Buyer that is purchasing for its own account or for the account of a Qualified Institutional Buyer and to whom notice is given that such transfer is being made in
reliance upon Rule 144A and (A) the transferor thereof executes and delivers to the Transferor and the Certificate Registrar, a Rule 144A certificate substantially in the form attached as Exhibit B and (B) the transferee executes and delivers to the
Transferor and the Certificate Registrar an investment letter substantially in the form attached as Exhibit C.
(ii) After the appropriate holding period,
such transfer is pursuant to an exemption from registration under the Securities Act provided by Rule 144 under the Securities Act and the transferee, if requested by the Transferor, the Certificate Registrar or the Underwriter, delivers an Opinion of
Counsel in form and substance satisfactory to the Transferor and the Underwriter.
(iii) Such transfer is to an institutional
accredited investor as defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D promulgated under the Securities Act in a transaction exempt from the registration requirements of the Securities Act, such transfer is in accordance with any applicable
securities laws of any State or any other jurisdiction, and such investor executes and delivers to the Issuer and the Certificate Registrar an investment letter substantially in the form attached as Exhibit D.
(d) Upon surrender for registration of transfer or exchange of
any Trust Certificate at the office of the Certificate Registrar and upon compliance with the provisions of this Agreement relating to such transfer or exchange, the Owner Trustee shall execute and shall, or shall cause the Authenticating Agent to,
authenticate and deliver, in the name of the designated transferee or transferees, one or more new Trust Certificates in authorized denominations of a like aggregate face amount dated the date of such authentication or the Trust Certificates that the
Trust Certificateholder making the exchange is entitled to receive, as the case may be.
The Certificate Registrar shall require that every Trust Certificate presented or surrendered for registration of transfer or exchange shall be accompanied by a written instrument of transfer and
accompanied by IRS Form W‑9 (or applicable successor form) or such other form and such other documentation as may be reasonably required in form satisfactory to the Certificate Registrar duly executed by the Trust Certificateholder or such Person’s
attorney duly authorized in writing.
13
No service charge shall be made for any registration of transfer or exchange of Trust Certificates, but the Owner Trustee or the Certificate Registrar may require payment of a sum sufficient to cover
any tax or governmental charge that may be imposed in connection with any registration of transfer or exchange of Trust Certificates.
The Certificate Registrar shall cancel and retain or destroy, in accordance with the Certificate Registrar’s retention policy then in effect, all Trust Certificates surrendered for registration of
transfer or exchange and shall upon written request certify to the Transferor as to such retention or destruction.
No transfer will be effectuated hereunder unless the Owner Trustee has received the transfer documentation required hereunder.
(e) The provisions of this Section generally are intended, among
other things, to prevent the Issuer from being characterized as a “publicly traded partnership” within the meaning of Section 7704 of the Code, in reliance on Treasury Regulations Section 1.7704‑1(e) and (h), and the Transferor shall take such intent
into account in determining whether or not to consent to any proposed transfer of any Trust Certificate.
The preceding provisions of this Section notwithstanding, the Owner Trustee shall not make and the Certificate Registrar shall not register any transfer or exchange of Trust Certificates for a period
of 15 days preceding the due date for any payment with respect to the Trust Certificates.
Section 3.05. Mutilated, Destroyed, Lost or Stolen Trust Certificates. If any mutilated Trust
Certificate is surrendered to the Certificate Registrar, or if the Certificate Registrar receives evidence to its satisfaction of the destruction, loss or theft of any Trust Certificate and there is delivered to the Certificate Registrar and the Owner
Trustee such security or indemnity as may be required by them to save each of them harmless, then (and in the absence of notice that such Trust Certificate has been transferred to or is in the possession of a third party purchaser), provided that the
requirements of Section 8‑405 of the UCC are met, the Owner Trustee on behalf of the Issuer shall execute and the Authenticating Agent shall authenticate and deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or stolen Trust
Certificate, a new Trust Certificate of like tenor and denomination. In connection with the issuance of any new Trust Certificate pursuant to 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 an ownership interest in the Issuer 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 Trust Certificateholders. Prior to due presentation of a Trust
Certificate for registration of transfer, the Owner Trustee, the Certificate Registrar, any Paying Agent and any of their respective agents may treat the Person in whose name any Trust Certificate is registered in the Certificate Register as the owner
of such Trust Certificate for the purpose of receiving distributions pursuant to Section 5.02 and for all other purposes
14
Section 3.07. Access to List of Trust Certificateholders’ Names and Addresses. The Certificate Registrar shall furnish or cause
to be furnished to the Servicer and the Transferor, or to the Indenture Trustee or the Owner Trustee, as the case may be, within 15 days after receipt by the Certificate Registrar of a request therefor from the Servicer, the Transferor, the Indenture
Trustee or the Owner Trustee in writing, a list, in such form as the requesting party may reasonably request, of the names and addresses of the Trust Certificateholders as of the most recent Record Date. If (i) two or more Trust Certificateholders or
(ii) one or more Trust Certificateholders evidencing not less than 25% of the aggregate Certificate Percentage Interest apply in writing to the Certificate Registrar, and such application states that the applicants desire to communicate with other
Trust Certificateholders with respect to their rights under this Agreement or under the Trust Certificates and such application is accompanied by a copy of the communication that such applicants propose to transmit, then the Certificate Registrar
shall, within five Business Days after the receipt of such application, afford such applicants access during normal business hours to the current list of Trust Certificateholders. Each Trust Certificateholder, by receiving and holding a Trust
Certificate, shall be deemed to have agreed not to hold either the Transferor, the Certificate Registrar, the Owner Trustee or the Indenture Trustee, as the case may be, accountable by reason of the disclosure of its name and address, regardless of the
source from which such information was derived.
Section 3.08. Maintenance of Office or Agency. The Trust shall cause the Certificate Registrar to
maintain, at the Corporate Trust Office or such other location in Minnesota or Illinois chosen by the Certificate Registrar, 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 Trust in respect of the Trust Certificates and the Basic Documents may be served. The Trust initially designates the Corporate Trust Office of U.S. Bank Trust Company, National Association, a national
banking association, solely for the purposes of the transfer, surrender or exchange of the Trust Certificates, as its office for such purposes. The Owner Trustee on behalf of the Trust shall give prompt written notice to the Transferor and the other
Trust Certificateholders of any change in the location of the Certificate Register or any such office or agency.
Section 3.09. Appointment of Paying Agent. The Paying Agent shall make distributions to Trust
Certificateholders pursuant to Section 5.02, and shall report the amounts of such distributions to the Owner Trustee in accordance with the Payment Date Certificate delivered in accordance with Section 8.03 of the Indenture. Any Paying Agent shall
have the revocable power to withdraw funds from the Certificate Distribution Account for the purpose of making the distributions referred to above. The Paying Agent initially shall be U.S. Bank Trust Company, National Association. The Owner Trustee
may revoke such power and remove the Paying Agent if the Owner Trustee determines in its sole discretion that the Paying Agent has failed to perform its obligations under this Agreement in any material respect. Any co‑paying agent chosen by the
Transferor and acceptable to the Owner Trustee shall also be a Paying Agent. Each Paying Agent may resign upon 30 days’ written notice to the Owner Trustee. In the event that a Paying Agent may no longer act as Paying Agent, the Transferor, with the
consent of the Owner Trustee, shall appoint a successor to act as Paying Agent (which shall be
15
a bank or trust company). The Owner Trustee shall cause such successor Paying Agent or any additional Paying Agent appointed by the Owner Trustee to execute and deliver to the Owner Trustee an instrument in which such
successor Paying Agent or additional Paying Agent shall agree with the Owner Trustee that as Paying Agent, such successor Paying Agent or additional Paying Agent shall hold all sums, if any, held by it for payment to the Trust Certificateholders in
trust for the benefit of the Trust Certificateholders entitled thereto until such sums are paid to the Transferor or such Trust Certificateholders. The Paying Agent shall return all unclaimed funds to the Owner Trustee and upon removal of a Paying
Agent such Paying Agent shall also return all funds in its possession to the Owner Trustee. The provisions of Sections 7.01, 7.03, 7.04 and 8.01 shall apply to the Owner Trustee also in its role as Paying Agent, for so long as the Owner Trustee shall
act as Paying Agent and, to the extent applicable, to any other paying agent appointed hereunder.
Section 3.10. Ownership of Trust Certificate. On the Closing Date, the Transferor shall acquire
beneficial and record ownership of the Trust Certificate. Upon a dissolution or termination of the Transferor, the Trust Certificates held by it shall be distributed to BMW FS without regard to the provisions of Section 3.02. The Owner Trustee shall
cause the Trust Certificate to bear a legend stating to the extent permitted by applicable law: “THIS TRUST CERTIFICATE IS NOT TRANSFERABLE EXCEPT IN THE EVENT OF THE DISSOLUTION, TERMINATION OR BANKRUPTCY OF THE HOLDER HEREOF, AND ANY TRANSFER IN
VIOLATION OF THIS PROVISION SHALL BE NULL AND VOID”.
Section 3.11. Trust Certificates held by Issuer, Transferor or their Affiliates. Any Trust
Certificates owned by the Issuer, the Transferor or any of their respective Affiliates shall be entitled to the benefits under this Agreement equally and proportionately to the benefits afforded other owners of the Trust Certificates, except that such
Trust Certificates shall be deemed not to be outstanding for the purpose of determining whether the requisite percentage of Securityholders have given any request, demand, authorization, direction, notice, consent or other action under the Basic
Documents (other than the commencement by the Issuer of a voluntary proceeding in bankruptcy).
ARTICLE FOUR
Section 4.01. Prior Notice to Trust Certificateholders with Respect to Certain Matters. Subject to
the provisions and limitations of Section 4.04, with respect to the following matters, the Owner Trustee shall not take action unless the Owner Trustee has notified the Trust Certificateholders and the Administrator in writing of the proposed action at
least 30 days before the taking of such action and Trust Certificateholders representing at least 50% of the aggregate Certificate Percentage Interest have not notified the Owner Trustee in writing prior to the 30th day after such notice is given that
such Trust Certificateholders have withheld consent or provided alternative direction:
(a) the initiation of any claim or lawsuit by
the Issuer and the compromise of any action, claim or lawsuit brought by or against the Issuer (other than an action brought by the Servicer on behalf of the Vehicle Trust and Persons having interests in the 2024-1
16
SUBI Certificate to collect amounts owed under a 2024-1 Lease or in respect of a 2024-1 Vehicle);
(b) the election by the Issuer to file an
amendment to the Certificate of Trust (unless such amendment is required to be filed under the Statutory Trust Statute);
(c) the amendment of the Indenture in
circumstances where the consent of any Noteholder is required;
(d) the amendment of the Indenture in
circumstances where the consent of any Noteholder is not required and such amendment materially and adversely affects the interests of the Trust Certificateholders;
(e) the amendment of any other Basic Document
unless such amendment does not materially and adversely affect the interests of the Trust Certificateholders;
(f) the amendment, change or modification of
the Issuer Administration Agreement, except to cure any ambiguity or to amend or supplement any provision in a manner or add any provision that would not materially adversely affect the interests of the Trust Certificateholders; or
(g) the appointment of a successor Owner
Trustee or Indenture Trustee.
Section 4.02. Action by Trust Certificateholders with Respect to Certain Matters. Subject to the
provisions and limitations of Section 4.04, to the extent the Owner Trustee or the Issuer is deemed to be the Holder of the 2024-1 SUBI Certificate pursuant to the 2024-1 SUBI Supplement, the Owner Trustee or Issuer, as the case may be, shall take such
actions as directed in writing by Trust Certificateholders holding Trust Certificates evidencing an interest of at least 662/3% of the aggregate Certificate Percentage Interest; provided, however, that so long as the Lien of the Indenture is outstanding, such direction shall be subject to the consent of the Indenture Trustee,
acting at the direction of the Majority Noteholders. The Owner Trustee may not, except upon the occurrence of a Servicer Default subsequent to the payment in full of the Notes and in accordance with the written directions of Trust Certificateholders
evidencing 662/3% of the aggregate Certificate Percentage Interest, remove the Servicer,
with respect to the 2024-1 SUBI Assets or appoint a successor Servicer, with respect thereto.
Section 4.03. Action by Owner Trustee with Respect to Bankruptcy. The Owner Trustee shall not have
the power to commence a voluntary proceeding in bankruptcy with respect to the Issuer except in accordance with Section 12.08.
Section 4.04. Restrictions on Trust Certificateholders’ Power. The Trust Certificateholders shall
not direct the Owner Trustee to take or refrain from taking any action if such action or inaction would be contrary to any obligation of the Issuer or the Owner Trustee under this Agreement or any of the other Basic Documents or would be contrary to
the purpose of the Issuer as set forth in Section 2.03 or which could result in the Issuer being treated as an entity separate from the Transferor or the Issuer being characterized as an association or publicly traded partnership, in either case
taxable as a corporation for U.S. federal income tax purposes, nor shall the Owner Trustee be obligated to follow any such direction, if given.
17
Section 4.05. Majority Control. Except as expressly provided herein, any action that may be taken by the Trust
Certificateholders under this Agreement may be taken by the Trust Certificateholders holding not less than a majority of the aggregate Certificate Percentage Interest. Except as expressly provided herein, any written notice of the Trust
Certificateholders delivered pursuant to this Agreement shall be effective if signed by Trust Certificateholders holding not less than a majority of the aggregate Certificate Percentage Interest at the time of delivery of such notice.
ARTICLE FIVE
(a) The Owner Trustee, for the benefit of the
Trust Certificateholders, shall establish and maintain (or cause the Indenture Trustee to establish and maintain) a segregated account at an Eligible Institution in the name of the Issuer which shall be designated the “Certificate Distribution
Account”. The Certificate Distribution Account shall be held in trust for the benefit of the Trust Certificateholders, and shall bear a designation clearly indicating that the funds deposited therein are held for the benefit of the Trust
Certificateholders. The Certificate Distribution Account initially shall be established with U.S. Bank National Association.
The Issuer shall possess all right, title and interest in all funds on deposit from time to time in the Certificate Distribution Account and in all proceeds thereof. Except as otherwise provided
herein, the Certificate Distribution Account shall be under the sole dominion and control of the Owner Trustee for the benefit of the Trust Certificateholders. If at any time the Certificate Distribution Account ceases to be held at an Eligible
Institution, the Owner Trustee shall, if directed to do so by the Transferor in writing, establish a new Certificate Distribution Account at an Eligible Institution and transfer any cash or investments to such new Certificate Distribution Account.
(b) Pursuant to Section 8.02(a) of the
Indenture, the Issuer has established (or has caused the Indenture Trustee to establish) and the Indenture Trustee will maintain a segregated account at an Eligible Institution in the name of the Indenture Trustee until the Outstanding Amount is
reduced to zero, which is designated as the “Reserve Fund.” On the Closing Date, the Transferor shall cause the Initial Deposit to be deposited into the Reserve Fund from the net proceeds of the sale of the Notes and the Trust Certificates.
(a) On each Payment Date, the Paying Agent on
behalf of the Owner Trustee shall distribute to Trust Certificateholders all amounts deposited in the Certificate Distribution Account pursuant to Section 8.04 of the Indenture with respect to such Payment Date.
18
(b) [Reserved].
(c) On each Payment Date, the Paying Agent on
behalf of the Owner Trustee shall send to each Trust Certificateholder a report (the “Distribution Statement”) provided by the Servicer (in the manner set forth in Section 8.03 of the Indenture), based on information in the Payment Date
Certificate delivered pursuant to Section 8.03 of the Indenture, that shall include the information provided in such Payment Date Certificate.
The information required to be delivered by such Distribution Statement may be included with other information or reports furnished by the Servicer to the Owner Trustee in connection with the making of
payments pursuant to the other Basic Documents.
(d) In the event that any withholding tax is
imposed on the Issuer’s payment (or, if the Issuer is treated as a partnership for U.S. federal income tax purposes, allocations of income) to a Trust Certificateholder, such tax shall reduce the amount otherwise distributable to such Trust
Certificateholder in accordance with this Section. The Owner Trustee shall authorize and direct Paying Agent to retain from amounts otherwise distributable to such Trust Certificateholders, sufficient funds for the payment of any withholding tax that
is legally owed by the Issuer (but such authorization shall not prevent the Owner Trustee from contesting any such tax in appropriate proceedings, and withholding payment of such tax, if permitted by law, pending the outcome of such proceedings). The
amount of any withholding tax imposed with respect to a Trust Certificateholder shall be treated as cash distributed to such Trust Certificateholders, at the time it is withheld by the Issuer for remittance to the appropriate taxing authority. If the
Owner Trustee determines that there is a possibility that withholding tax is payable with respect to a distribution, the Owner Trustee may, in its sole discretion, direct the Paying Agent to withhold such amounts in accordance with this Section. In
the event that a Trust Certificateholder wishes to apply for a refund of any such withholding tax, the Owner Trustee shall reasonably cooperate with such Trust Certificateholder in making such claim so long as such Trust Certificateholder agrees to
reimburse the Owner Trustee for any out‑of‑pocket expenses incurred.
Section 5.03. Method of Payment. Subject to Section 9.01(c) respecting the final payment upon
retirement of the Trust Certificates, distributions required to be made to Trust Certificateholders on any Payment Date shall be made to each Trust Certificateholder of record on the related Record Date by wire transfer or by check mailed to the
addresses of such Trust Certificateholders as they appear on the Certificate Register. Notwithstanding the foregoing, the final payment on the Trust Certificates shall be made only upon presentation and surrender of such Trust Certificates at the
office or agency specified in the notice of final payment to the Trust Certificateholders. The Owner Trustee or a Paying Agent shall, upon receipt of at least 45 days’ notice from the Issuer or the Administrator as set forth in the Indenture, provide
such notice to the Trust Certificateholder of record not more than 30 days and not less than 15 days prior to the date on which such final payment is expected to occur.
19
(a) The Owner Trustee shall, based on
information provided by the Transferor, (i) maintain (or cause to be maintained) the books of the Issuer on a calendar year basis on the accrual method of accounting (except as required by Article Eleven), and (ii) in addition to the Owner Trustee’s
rights under Section 5.02, take such action as instructed by the Transferor, as holder of the Trust Certificate, to collect or cause to be collected and paid over to applicable authorities any withholding tax as described in and in accordance with
Section 5.02 and Article Eleven with respect to income or distributions to Trust Certificateholders. The Owner Trustee shall make all elections pursuant to Article Eleven as directed by the Transferor.
(b) The Transferor shall maintain such books
and records, and shall prepare and file such reports and returns, as are required pursuant to this Section and Section 11.01.
ARTICLE SIX
Section 6.01. General Authority. The Owner Trustee shall administer the Issuer in the interest of
the Trust Certificateholders, subject to the Lien of the Indenture Trustee, in accordance with the Basic Documents. Subject to the provisions and limitations of Sections 2.03 and 2.06, the Owner Trustee is authorized and directed to execute and
deliver on behalf of the Issuer the Basic Documents to which the Issuer is to be a party and each certificate or other document attached as an exhibit to or contemplated by the Basic Documents to which the Issuer is to be a party, in each case in such
form as the Transferor shall approve as evidenced conclusively by the Owner Trustee’s execution thereof and the Transferor’s execution of this Agreement, and to direct the Indenture Trustee to authenticate and deliver Notes in the aggregate principal
amount not to exceed $1,300,000,000 (except as otherwise contemplated by Section 3.05). In addition to the foregoing, the Owner Trustee is authorized but shall not be obligated to take all actions required of the Issuer pursuant to the Basic
Documents. The Owner Trustee is further authorized from time to time to take such action on behalf of the Issuer as is permitted by the Basic Documents and that the Servicer or the Administrator instructs in writing with respect to the Basic
Documents, except to the extent this Agreement expressly requires the consent of the Trust Certificateholders for such action. The Owner Trustee shall not be liable for following such instruction.
Section 6.02. General Duties. Subject to the provisions and limitations of Sections 2.03 and 2.06,
it shall be the duty of the Owner Trustee to discharge or cause to be discharged all of its responsibilities pursuant to the terms of the Basic Documents to which the Issuer is a party and to administer the Issuer in the interest of the Trust
Certificateholders, subject to the Lien of the Indenture Trustee, and in accordance with provisions of the Basic Documents. Notwithstanding the foregoing, the Owner Trustee shall be deemed to have discharged its duties and responsibilities hereunder
and under the other Basic Documents to the extent the Administrator has agreed in the Issuer Administration Agreement to perform any act or to discharge any duty of the Issuer or the Owner Trustee hereunder or under any other Basic Document, and the
Owner Trustee shall not be held liable for the default or failure of the Administrator to carry out its obligations under the Issuer Administration Agreement.
20
Section 6.03. Action Upon Instruction.
(a) Subject to Article Four, the Transferor,
as holder of the Trust Certificate, may by written instruction direct the Owner Trustee in the administration of the Issuer subject to, and in accordance with, the terms of the Basic Documents; provided that such instruction shall not, materially
adversely affect any Securityholder.
(b) The Owner Trustee shall not be required to
take or refrain from taking any action hereunder or under any other Basic Document if the Owner Trustee shall have reasonably determined, or shall have been advised by counsel, that such action is likely to result in liability on the part of the Owner
Trustee, is contrary to the terms hereof or of any other Basic Document or is otherwise contrary to law or any obligation of the Owner Trustee or the Issuer.
(c) Whenever the Owner Trustee is unable to
decide between alternative courses of action permitted or required by the terms of this Agreement or any other Basic Document, the Owner Trustee shall promptly give notice (in such form as shall be appropriate under the circumstances) to the holder of
the Trust Certificate requesting instruction as to the course of action to be adopted, and to the extent the Owner Trustee acts in good faith in accordance with any written instruction of Trust Certificateholders holding at least a majority of the
Certificate Percentage Interest in the Trust Certificates, the Owner Trustee shall not be liable on account of such action to any Person. If the Owner Trustee shall not have received appropriate instruction within ten days of such notice (or within
such shorter period of time as reasonably may be specified in such notice as may be necessary under the circumstances), it may, but shall be under no duty to, take or refrain from taking such action not inconsistent with this Agreement or the other
Basic Documents as it shall deem to be in the best interests of the Trust Certificateholders, and shall have no liability to any Person for such action or inaction.
(d) In the event the Owner Trustee is unsure
as to the application of any provision of this Agreement or any other Basic Document or any such provision is ambiguous as to its application, or is, or appears to be, in conflict with any other applicable provision, or in the event that this Agreement
or any other Basic Document permits any determination by the Owner Trustee or is silent or is incomplete as to the course of action the Owner Trustee is required to take with respect to a particular set of facts, the Owner Trustee may give notice (in
such form as shall be appropriate under the circumstances) to the Transferor, as holder of the Trust Certificate requesting instruction and, to the extent the Owner Trustee acts or refrains from acting in good faith in accordance with any such
instruction received from Transferor, as holder of the Trust Certificate and in accordance with Sections 6.04 and 6.05, the Owner Trustee shall not be liable, on account of such action or inaction, to any Person. If the Owner Trustee shall not have
received appropriate instruction within ten days of such notice (or within such shorter period of time as reasonably may be specified in such notice or as may be necessary under the circumstances) it may, but shall be under no duty to, take or refrain
from taking such action, not inconsistent with this Agreement or the other Basic Documents, as it shall deem to be in the best interests of the Trust Certificateholders, and shall have no liability to any Person for such action or inaction.
21
(e) Notwithstanding the foregoing, the right
of the Transferor or the Trust Certificateholders to take any action affecting the Owner Trust Estate shall be subject to the rights of the Indenture Trustee under the Indenture.
Section 6.04. No Duties Except as Specified. The Owner Trustee shall not be required to perform
any of the obligations of the Issuer under this Agreement or the other Basic Documents that are required to be performed by (i) the Servicer under the Servicing Agreement or the SUBI Supplement, (ii) the Transferor under this Agreement, the SUBI
Certificate Transfer Agreement or the Back-Up Security Agreement, (iii) the Administrator under the Issuer Administration Agreement or (iv) the Indenture Trustee under the Indenture. The Owner Trustee shall not have any duty or obligation to manage,
make any payment with respect to, register, record, sell, dispose of or otherwise deal with the Owner Trust Estate, or to otherwise take or refrain from taking any action under, or in connection with, any document contemplated hereby to which the
Issuer is a party, except as expressly provided by the terms of this Agreement or in any document or written instruction received by the Owner Trustee pursuant to Section 6.03; and no implied duties or obligations shall be read into this Agreement or
any other Basic Document against the Owner Trustee, it being understood that, to the fullest extent permitted by law, any implied duties (including fiduciary duties) or liabilities otherwise existing at law or in equity with respect to the Issuer are
hereby eliminated and replaced with the express duties and obligations set forth in this Agreement. The Owner Trustee shall have no responsibility for filing any financing or continuation statement in any public office at any time or to otherwise
perfect or maintain the perfection of any ownership or security interest in the Owner Trust Estate or to record this Agreement or any other Basic Document. The Owner Trustee nevertheless agrees that it will, at its own cost and expense, promptly take
all action as may be necessary to discharge any Liens (other than the Lien of the Indenture) on any part of the Owner Trust Estate that result from actions by or claims against the Owner Trustee in its individual capacity that are not related to the
ownership or the administration of the Owner Trust Estate.
Section 6.05. No Action Unless Specifically Authorized. The Owner Trustee shall not manage,
control, use, sell, dispose of or otherwise deal with any part of the Owner Trust Estate except in accordance with (i) the powers granted to and the authority conferred upon the Owner Trustee pursuant to this Agreement, (ii) the other Basic Documents
to which the Issuer or the Owner Trustee is a party and (iii) any document or instruction delivered to the Owner Trustee pursuant to Section 6.03. In particular, the Owner Trustee shall not transfer, sell, pledge, assign or convey the 2024-1 SUBI
Certificate except as specifically required or permitted by the Basic Documents.
Section 6.06. Restrictions. The Owner Trustee shall not take any action (i) that is contrary to
the purposes of the Issuer set forth in Section 2.03 or (ii) that, to the actual knowledge of the Owner Trustee, would (a) affect the treatment of the Notes as debt for U.S. federal income tax purposes, (b) be deemed to cause a taxable exchange of the
Notes or the Trust Certificates for U.S. federal income tax purposes or (c) cause the Issuer, the Transferor or the Vehicle Trust or any portion thereof to be characterized as an association or a publicly traded partnership, in either case taxable as a
corporation for U.S. federal income tax purposes. The Trust Certificateholders and the Transferor shall not direct the Owner Trustee to take action that would violate the provisions of this Section. The Owner Trustee may not (i) initiate or
22
Section 6.07. Owner Trustee to Provide Information. The Owner Trustee shall provide prompt
notice to BMW Financial Services NA, LLC and BMW Auto Leasing LLC (each, a “BMW Party,” and together, the “BMW Parties”) of all demands communicated to the Owner Trustee for the repurchase or replacement of any 2024-1 Lease and
2024-1 Vehicle for breach of the representations and warranties concerning such 2024-1 Lease or 2024-1 Vehicle (each, a “Demand”). Subject to Section 6.03 of this Agreement, the Owner Trustee shall have no obligation to take any other action
with respect to a Demand, other than as set forth in the immediately preceding sentence. However, the Owner Trustee shall, upon written request of either BMW Party, provide notification to the BMW Parties with respect to any actions taken by the Owner
Trustee, if any, with respect to any such demand communicated to the Owner Trustee in respect of any 2024-1 Lease or 2024-1 Vehicle, such notifications to be provided by the Owner Trustee as soon as practicable and in any event within five Business
Days of such request or such other time frame as may be mutually agreed to by the Owner Trustee and the applicable BMW Party. Such notices shall be provided to the BMW Parties at (i) BMW Financial Services NA, LLC at 000 Xxxxxxxx Xxxxx Xxxx, Xxxxxxxxx
Xxxx, XX 00000, Attention: General Counsel, or at such other address or by such other means of communication as may be specified by BMW Financial Services NA, LLC to the Owner Trustee from time to time, and (ii) BMW Auto Leasing LLC at 000 Xxxxxxxx
Xxxxx Xxxx, Xxxxxxxxx Xxxx, XX 00000, Attention: General Counsel, or at such other address or by such other means of communication as may be specified by BMW Auto Leasing LLC to the Owner Trustee from time to time. The Owner Trustee and the Issuer
acknowledge and agree that the purpose of this Section 6.07 is to facilitate compliance by the BMW Parties with Rule 15Ga-1 under the Securities Exchange Act of 1934, as amended, and Items 1104(e) and 1121(c) of Regulation AB (the “Repurchase Rules
and Regulations”). In no event shall the Owner Trustee have any responsibility or liability in connection with any filing required to be made by a securitizer under the Securities Exchange Act of 1934, as amended, or Regulation AB or with any
BMW Parties’ compliance with the Repurchase Rules and Regulations.
ARTICLE SEVEN
Section 7.01. Acceptance of Trusts and Duties. The Owner Trustee accepts the trusts xxxxxx created
and agrees to perform its duties hereunder with respect to such trusts but only
23
(a) the Owner Trustee shall not be liable for
any error in judgment of an officer or employee of the Owner Trustee;
(b) the Owner Trustee shall not be liable with
respect to any action taken or omitted to be taken by it in accordance with the instructions of any Trust Certificateholder, the Indenture Trustee, the Transferor, the Administrator or the Servicer;
(c) no provision of this Agreement or any
other Basic Document shall require the Owner Trustee to expend or risk funds or otherwise incur any financial liability in the performance of any of its rights or powers hereunder or under any other Basic Document if the Owner Trustee shall have
reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured or provided to it;
(d) under no circumstances shall the Owner
Trustee be liable for indebtedness evidenced by or arising under any of the Basic Documents, including the principal of and interest on the Notes or the Trust Certificates;
(e) the Owner Trustee shall not be responsible
for or in respect of the validity or sufficiency of this Agreement or for the due execution hereof by the Transferor or for the form, character, genuineness, sufficiency, value or validity of any of the Owner Trust Estate or for or in respect of the
validity or sufficiency of the other Basic Documents, other than the execution of and the certificate of authentication on the Trust Certificates, and the Owner Trustee shall in no event be deemed to have assumed or incurred any liability, duty or
obligation to any Securityholder or any third party dealing with the Issuer or the Owner Trust Estate, other than as expressly provided for herein and in the other Basic Documents;
(f) the Owner Trustee shall not be liable for
the misfeasance, malfeasance or nonfeasance of the Servicer, the Administrator, the Transferor or the Indenture Trustee under any of the Basic Documents or otherwise, and the Owner Trustee shall have no obligation or liability to perform the
obligations of the Issuer or the Transferor under this Agreement or the Basic Documents or that are required to be performed by the Certificate Registrar and the Paying Agent under this Agreement, the Servicer under the Servicing Agreement or the SUBI
Trust Agreement, the Administrator under the Issuer Administration Agreement or the Indenture Trustee under the Indenture;
24
(g) the Owner Trustee shall be under no
obligation to exercise any of the rights or powers vested in it by this Agreement, or to institute, conduct or defend any litigation under this Agreement or otherwise or in relation to this Agreement or any other Basic Document, at the request, order
or direction of any of the Trust Certificateholders unless such Trust Certificateholders have offered to the Owner Trustee security or indemnity satisfactory to it against the Expenses that may be incurred by the Owner Trustee therein or thereby; the
right of the Owner Trustee to perform any discretionary act enumerated in this Agreement or in any other Basic Document shall not be construed as a duty, and the Owner Trustee shall not be answerable for other than its bad faith, gross negligence or
willful misconduct in the performance of any such act;
(h) the Owner Trustee shall not have any
obligation or duty to supervise or monitor the performance of any other person and shall have no liability for the failure of any other person to perform its obligations or duties under the Basic Documents or otherwise;
(i) the Owner Trustee shall not be deemed to
have knowledge or notice of any fact or event unless a Responsible Officer of the Owner Trustee has actual knowledge thereof or unless written notice of such fact or event is received by a Responsible Officer and such notice references the fact or
event;
(j) the Owner Trustee shall not be liable or
responsible for delays or failures in the performance of its obligations hereunder arising out of or caused, directly or indirectly, by circumstances beyond its control (such acts include but are not limited to acts of God, strikes, lockouts, riots,
acts of war and interruptions, losses or malfunctions of utilities, computer (hardware or software) or communications services); it being understood that the Owner Trustee shall use commercially reasonable efforts which are consistent with accepted
practices in the banking industry to resume performance as soon as reasonably practicable under the circumstances;
(k) to the fullest extent permitted by law and
notwithstanding anything in this Agreement to the contrary, the Owner Trustee shall not be personally liable for (x) indirect, special, consequential or punitive damages, however styled, including, without limitation, lost profits or (y) the acts or
omissions of any nominee, correspondent, clearing agency or securities depository through which it holds the Issuer’s securities or assets;
(l) it shall be the Administrator's duty and
responsibility, and not the Owner Trustee's duty or responsibility, to cause the Issuer to respond to, defend, participate in or otherwise act in connection with any regulatory, administrative, governmental, investigative or other proceeding or inquiry
relating in any way to the Issuer, its assets or the conduct of its business;
(m) for the avoidance of doubt, the Owner
Trustee shall not have any duty or obligation to monitor or enforce the Sponsor’s compliance with any applicable risk retention rules or regulations. The Owner Trustee shall not be charged with knowledge
25
of any such rules or regulations, and it shall not be liable to any Noteholder or any other Person for any violation of any such rules or regulations;
(n) monies received by the Owner Trustee
(except in the event that the Owner Trustee acts as Paying Agent) under this Agreement need not be segregated in any manner except to the extent required by law and may be deposited under such general conditions as may be prescribed by law. Such funds
shall be held (i) in a non-interest bearing trust account and (ii) uninvested and the Owner Trustee shall not be liable for any interest thereon; and
(o) each of the parties hereto hereby agrees
and, as evidenced by its acceptance of any benefits hereunder, any Trust Certificateholder agrees that the Owner Trustee in any capacity (x) has not provided and will not provide in the future, any advice, counsel or opinion regarding the tax,
regulatory, financial, investment, securities law or insurance implications and consequences of the formation, funding and ongoing administration of the Issuer, including income, gift and estate tax issues, insurable interest issues, risk retention
issues, doing business or other licensing matters and the initial and ongoing selection and monitoring of financing arrangements, and (y) has not made any investigation as to the accuracy of any representations, warranties or other obligations of the
Issuer under the Basic Documents and shall have no liability in connection therewith.
Section 7.02. Doing Business in Other Jurisdictions. Notwithstanding anything contained herein to
the contrary, neither Wilmington Trust, National Association 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 respect of, 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, National Association; or (iii) subject
Wilmington Trust, National Association 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, National Association 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 Transferor) 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 7.03. Furnishing of Documents. The Owner Trustee shall furnish to any Trust
Certificateholder promptly upon receipt of a written request by such Trust Certificateholder (at the expense of the requesting Trust Certificateholder) therefor, duplicates or copies of all reports, notices, requests, demands, certificates and any
other instruments furnished to the Owner Trustee under the Basic Documents.
26
Section 7.04. Representations and Warranties. The Owner Trustee hereby represents and warrants to the Transferor and the Trust
Certificateholders, that:
(a) It is a national banking association duly
organized and validly existing in good standing under the laws of the United States of America. 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 nor the delivery by
it of this Agreement, nor the consummation by it of the transactions contemplated hereby nor compliance by it with any of the terms or provisions hereof will contravene any federal or Delaware law, governmental rule or regulation governing the banking
or trust powers of the Owner Trustee or any judgment or order binding on it, or constitute any default under its charter documents or bylaws or any indenture, mortgage, contract, agreement or instrument to which it is a party or by which any of its
properties may be bound or result in the creation or imposition of any Lien, charge or encumbrance on the Owner Trust Estate resulting from actions by or claims against the Owner Trustee individually that are unrelated to this Agreement or the other
Basic Documents.
(d) This Agreement has been duly executed and
delivered by it and constitutes the legal, valid and binding agreement of it, enforceable against the Owner Trustee in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization or other similar laws
affecting the enforcement of creditors’ rights in general and by general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law.
(a) The Owner Trustee may rely upon, shall be
protected in relying upon and shall incur no liability to anyone in acting or refraining from acting upon, any signature, instrument, notice, resolution, request, consent, order, certificate, report, opinion, bond or other document or paper believed by
it to be genuine and believed by it to be signed by the proper party or parties. The Owner Trustee need not investigate any fact or matter stated in any such document, including verifying the correctness of any numbers or calculations. The Owner
Trustee may accept a certified copy of a Board Resolution or documents of any other governing body of any corporate party as conclusive evidence that such Board Resolution or other document has been duly adopted by such body and that the same is in
full force and effect. As to any fact or matter the method of the determination of which is not specifically prescribed herein, the Owner Trustee may for all purposes hereof rely on a certificate, signed by the president, any vice president, the
treasurer, any assistant treasurer or any other authorized officers of the relevant party as
27
to such fact or matter, and such certificate shall constitute full protection to the Owner Trustee for any action taken or omitted to be taken by it in good faith in reliance thereon.
(b) In the exercise or administration of the
trusts hereunder and in the performance of its duties and obligations under this Agreement and the other Basic Documents, the Owner Trustee (i) may act directly or through its agents or attorneys pursuant to agreements entered into with any of them,
and the Owner Trustee shall not be liable for the conduct or misconduct of such agents or attorneys if such agents or attorneys shall have been selected by the Owner Trustee with reasonable care and (ii) may consult with counsel, accountants and other
skilled Persons to be selected with reasonable care and employed by it. The Owner Trustee shall not be liable for anything done, suffered or omitted in good faith by it in accordance with the opinion or advice of any such counsel, accountants or other
such Persons and not contrary to this Agreement or any other Basic Document.
Section 7.06. Not Acting in Individual Capacity. Except as provided in this Article, in accepting
the trusts hereby created, Wilmington Trust, National Association acts solely as Owner Trustee hereunder and not in its individual capacity and all Persons having any claim against the Owner Trustee by reason of the transactions contemplated by this
Agreement or any Basic Document shall look only to the Owner Trust Estate for payment or satisfaction thereof.
Section 7.07. Owner Trustee Not Liable for Trust Certificates. The recitals contained herein and
in the Trust Certificates (other than the signature of the Owner Trustee and the certificate of authentication on the Trust Certificates and its representations and warranties in Section 7.03) shall be taken as the statements of the Transferor and the
Owner Trustee assumes no responsibility for the correctness thereof. The Owner Trustee makes no representations as to the validity or sufficiency of this Agreement, any other Basic Document or the Trust Certificates (other than the signature of the
Owner Trustee and the certificate of authentication on the Trust Certificates) or the Notes or any offering document relating to either of them. The Owner Trustee shall at no time have any responsibility or liability for or with respect to the
legality, validity or enforceability of any Basic Document to which the Owner Trustee is to be a party (except for enforceability against the Owner Trustee), or the perfection and priority of any security interest created by or under any Basic
Document, or the maintenance of any such perfection and priority, or for or with respect to the sufficiency of the Owner Trust Estate or its ability to generate the payments to be distributed to Trust Certificateholders or to the Noteholders under the
Indenture, or the validity of the transfer of the 2024-1 SUBI Certificate to the Issuer, or for the compliance by the Transferor, the Administrator or the Servicer with any warranty or representation made under any Basic Document or for the accuracy of
any such warranty or representation or for any action of the Administrator, the Servicer or the Indenture Trustee taken in the name of the Owner Trustee.
Section 7.08. Owner Trustee May Own Trust Certificates and Notes. The Owner Trustee in its
individual or any other capacity may become the owner or pledgee of Trust Certificates or Notes and may deal with the Transferor, the Servicer, the Administrator, the Indenture Trustee and their respective Affiliates, in banking transactions with the
same rights as it would have if it were not the Owner Trustee.
28
ARTICLE EIGHT
(a) The Owner Trustee, the Certificate
Registrar and any Paying Agent shall receive as compensation from the Issuer for its services hereunder such fees as have been separately agreed upon before the date hereof between the Transferor or the Administrator and the Owner Trustee, the
Certificate Registrar or the Paying Agent, and the Owner Trustee, the Certificate Registrar and any Paying Agent and their respective successors, assigns, agents, servants, officers and employees (collectively, the “Indemnified Parties”) shall
be indemnified by the Issuer from and against, any Expenses (other than overhead), including but not limited to the costs of defending any claim or bringing any claim to enforce the indemnification obligations of the Issuer, that may at any time be
imposed on, incurred by or asserted against the Owner Trustee or any other Indemnified Party in any way relating to or arising out of the Basic Documents, the Owner Trust Estate, the administration of the Owner Trust Estate or the action or inaction of
the Owner Trustee hereunder, except only that the Issuer shall not be liable for or required to indemnify any Indemnified Party from and against Expenses arising or resulting from any of the matters described in items (i) or (ii) of the third sentence
of Section 7.01 or for any income taxes on any fees payable to any Indemnified Party as set forth in Section 2.07. The indemnities contained in this Section shall survive the resignation or termination of the Owner Trustee, the Certificate Registrar
or any Paying Agent or the termination of this Agreement. In any event of any claim, action or proceeding for which indemnity will be sought pursuant to this Section, the Indemnified Party’s choice of legal counsel shall be subject to the approval of
the Transferor, which approval shall not be unreasonably withheld. Any fees, Expenses and indemnification amounts due to the Owner Trustee, the Certificate Registrar and any Paying Agent will be paid to such party in accordance with the terms of
Section 5.04 or 8.04 of the Indenture, as applicable. The Transferor shall cause the Administrator to promptly pay to the Owner Trustee, the Certificate Registrar and any Paying Agent, as applicable, the amount of any fees, expenses and
indemnification amounts due and payable to such party on a Payment Date and not otherwise paid or reimbursed to such party by the Issuer on such Payment Date in accordance with the terms of this Agreement and Section 5.04 or 8.04 of the Indenture, as
applicable; provided that the Owner Trustee, the Certificate Registrar and any Paying Agent shall promptly reimburse the Administrator for any such amounts to the extent such party subsequently receives payment or reimbursement in respect thereof from
the Issuer in accordance with the terms of Section 5.04 or 8.04 of the Indenture, as applicable. This Section 8.01(a) shall survive the termination of this Agreement and the resignation or removal of the parties hereto.
(b) Notwithstanding the foregoing, the Owner
Trustee shall not be liable for (i) any error of judgment made by an officer or employee of the Owner Trustee, (ii) any action taken or omitted to be taken in accordance with the instructions of any Trust Certificateholder, the Indenture Trustee, the
Transferor, the Administrator or the Servicer,
29
(iii) the interest on or principal of the Securities or (iv) the default or misconduct of the Administrator, the Servicer, the Transferor or the Indenture Trustee.
ARTICLE NINE
(a) This Agreement (other than Article Eight)
shall terminate and be of no further force or effect and the Issuer shall dissolve and wind up, (i) upon the final distribution by the Owner Trustee of all funds or other property or proceeds of the Owner Trust Estate in accordance with the terms of
the Indenture and this Agreement and (ii) at the times provided in Section 2.19 of the Servicing Agreement. The bankruptcy, liquidation, dissolution, or termination, death or incapacity of any Trust Certificateholder, shall not (i) operate to
terminate this Agreement or the Issuer, (ii) entitle such Trust Certificateholder’s legal representatives or heirs to claim an accounting or to take any action or proceeding in any court for a partition or winding up of all or any part of the Issuer or
Owner Trust Estate or (iii) otherwise affect the rights, obligations and liabilities of the parties hereto.
(b) Except as provided in Section 9.01(a),
neither the Transferor nor any other Trust Certificateholder shall be entitled to revoke or terminate the Issuer.
(c) Notice of any termination of this
Agreement pursuant to Section 9.01(a) shall be given by the Administrator by letter to Trust Certificateholders mailed within five Business Days of notice of such termination is sent to the Owner Trustee by the Administrator, stating (i) the Payment
Date upon or with respect to which final payment of the Trust Certificates shall be made upon presentation and surrender of the Trust Certificates at the office of the Paying Agent therein designated, (ii) the amount of any such final payment and
(iii) that the Record Date otherwise applicable to such Payment Date is not applicable, payments being made only upon presentation and surrender of the Trust Certificates at the office of the Paying Agent therein specified. The Administrator shall
give such notice to the Certificate Registrar (if other than the Owner Trustee) and the Paying Agent at the time such notice is given to Trust Certificateholders and the Transferor. Upon presentation and surrender of the Trust Certificates, the Paying
Agent shall cause to be distributed to Trust Certificateholders amounts distributable on such Payment Date pursuant to Section 5.02. The Administrator shall promptly make notice available to each Rating Agency upon the final payment of the Trust
Certificates.
(d) In the event that all of the Trust
Certificateholders shall not surrender their Trust Certificates for cancellation within six months after the date specified in the above‑mentioned written notice, the Administrator shall give a second written notice to the remaining Trust
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 of the Trust Certificates shall not have been surrendered for
cancellation, the Administrator may take appropriate steps, or may appoint an agent to
30
take appropriate steps, to contact the remaining Trust 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 Issuer after exhaustion of such remedies shall be distributed by the Owner Trustee to the Transferor.
(e) Upon the winding up of the Issuer and its
termination and upon proper instruction under Section 6.03 hereof, and in compliance with Section 3808(e) of the Statutory Trust Statute, the Administrator shall wind up the business and affairs of the Issuer as required under Section 3808 of the
Statutory Trust Statute and the Owner Trustee, at the written direction and expense of the Trust Certificateholders, shall cause the Certificate of Trust to be cancelled by filing a certificate of cancellation with the Secretary of State in accordance
with Section 3810(c) of the Statutory Trust Statute. Upon the filing of the certificate of cancellation, the Trust and this Agreement (other than Article VIII) shall terminate and be of no further force or effect.
ARTICLE TEN
Section 10.01. Eligibility Requirements for Owner Trustee. The Owner Trustee shall (i) be a
corporation or other entity satisfying the provisions of Section 3807(a) of the Statutory Trust Statute; (ii) at all times be able and authorized to exercise corporate trust powers; (iii) have (or have a parent which has) a long‑term debt rating of at
least investment grade by each Rating Agency or such other ratings for which the Rating Agency Condition is satisfied with respect to such Rating Agency; (iv) have (or have a parent which has) combined capital and surplus of at least $50,000,000; and
(v) be subject to supervision or examination by federal or state authorities. If the Owner Trustee shall publish reports of condition at least annually, pursuant to law or to the requirements of the aforesaid supervising or examining authority, then
for the purpose of this Section, the combined capital and surplus of the Owner Trustee shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. In case at any time the Owner Trustee shall
cease to be eligible in accordance with the provisions of this Section, the Owner Trustee shall resign immediately in the manner and with the effect specified in Section 10.02.
Section 10.02. Resignation or Removal of Owner Trustee. The Owner Trustee may, at any time with 30
days prior written notice to the Administrator, the Servicer, the Transferor, the Indenture Trustee and the Trust Certificateholders, resign and be discharged from the trusts hereby created. Upon receiving such notice of resignation, the Transferor
shall promptly appoint a successor Owner Trustee by written instrument, in duplicate, one copy of which instrument shall be delivered to the resigning Owner Trustee and one copy to the successor Owner Trustee. If no successor Owner Trustee shall have
been so appointed and have accepted appointment within 30 days after the giving of such notice of resignation, the resigning Owner Trustee may petition any court of competent jurisdiction for the appointment of a successor Owner Trustee.
31
If at any time the Owner Trustee shall cease to be eligible in accordance with the provisions of Section 10.01 and shall fail to resign after written request therefor by the Administrator, the
Transferor or Trust Certificateholders holding not less than a majority of the aggregate Certificate Percentage Interest, or if at any time the Owner Trustee shall be legally unable to act, or shall be adjudged bankrupt or insolvent, or a receiver of
the Owner Trustee or of its property shall be appointed, or any public officer shall take charge or control of the Owner Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation, then the Transferor or such
Trust Certificateholders may remove the Owner Trustee with 30 days’ prior written notice. If the Owner Trustee shall be removed pursuant to the preceding sentence, the Transferor shall promptly appoint a successor Owner Trustee by written instrument,
in duplicate, one copy of which instrument shall be delivered to the outgoing Owner Trustee so removed and one copy to the successor Owner Trustee.
Any resignation or removal of the Owner Trustee and appointment of a successor Owner Trustee pursuant to any of the provisions of this Section shall not become effective until acceptance of appointment
by the successor Owner Trustee pursuant to Section 10.03 and payment of all fees and expenses owed to the outgoing Owner Trustee. The Transferor shall make written notice of such resignation or removal of the Owner Trustee available to each Rating
Agency. Any appointment of a successor Owner Trustee is subject to satisfaction of the Rating Agency Condition.
Section 10.03. Successor Owner Trustee. Any successor Owner Trustee appointed pursuant to Section
10.02 shall execute, acknowledge and deliver to the Administrator and to its predecessor Owner Trustee an instrument accepting such appointment under this Agreement, and thereupon the resignation or removal of the predecessor Owner Trustee shall become
effective and such successor Owner Trustee, without any further act, deed or conveyance, shall become fully vested with all the rights, powers, duties and obligations of its predecessor under this Agreement, with like effect as if originally named as
Owner Trustee. The predecessor Owner Trustee shall, upon payment of its fees and expenses, deliver to the successor Owner Trustee all documents and statements and monies held by it under this Agreement; and the Transferor, the Administrator and the
predecessor Owner Trustee shall execute and deliver such instruments and do such other things as may reasonably be required for fully and certainly vesting and confirming in the successor Owner Trustee all such rights, powers, duties and obligations.
No successor Owner Trustee shall accept appointment as provided in this Section unless at the time of such acceptance such successor Owner Trustee shall be eligible pursuant to Section 10.01.
Upon acceptance of appointment by a successor Owner Trustee pursuant to this Section, the Transferor shall mail notice of the successor of such Owner Trustee to all Trust Certificateholders and the
Indenture Trustee, and with respect to each Rating Agency, shall make such notice available. If the Transferor shall fail to mail such notice or make such notice available within ten days after acceptance of appointment by the successor Owner Trustee,
the Administrator shall cause such notice to be mailed or made available, as applicable, at the expense of the Transferor.
32
Section 10.04. Merger or Consolidation of Owner Trustee. Any Person (i) into which the Owner Trustee may be merged or converted
or with which it may be consolidated, (ii) resulting from any merger, conversion or consolidation to which the Owner Trustee shall be a party or (iii) succeeding to all or substantially all of the corporate trust business of the Owner Trustee, shall be
the successor of the Owner Trustee hereunder, without the execution or filing of any instrument or any further act on the part of any of the parties hereto, provided, that such Person shall (i) be eligible pursuant to Section 10.01 anything herein to
the contrary notwithstanding and (ii) file any amendment as may be required by the Statutory Trust Statute. The Owner Trustee shall mail notice of such merger, conversion, or consolidation to the Administrator, the Indenture Trustee and the Trust
Certificateholders.
Section 10.05. Appointment of Co‑Trustee or Separate Trustee. Notwithstanding any other provision
of this Agreement, at any time, for the purpose of meeting any legal requirements of any jurisdiction in which any part of the Owner Trust Estate may at the time be located, the Transferor and the Owner Trustee acting jointly shall have the power and
shall execute and deliver all instruments to appoint one or more Persons to act as co‑trustee, jointly with the Owner Trustee, or separate trustee or separate trustees, of all or any part of the Owner Trust Estate, and to vest in such Person, in such
capacity, such title to the Issuer, or any part thereof, and, subject to the other provisions of this Section, such powers, duties, obligations, rights and trusts as the Transferor and the Owner Trustee may consider necessary or desirable. If the
Transferor shall not have joined in such appointment within 15 days after the receipt by it of a request so to do, the Owner Trustee alone shall have the power to make such appointment. No co‑trustee or separate trustee under this Agreement shall be
required to meet the terms of eligibility as a trustee pursuant to Section 10.01 and no notice of the appointment of any co‑trustee or separate trustee shall be required pursuant to Section 10.03.
Each separate trustee and co‑trustee shall, to the extent permitted by law, be appointed and act subject to the following provisions and conditions:
(a) all rights, powers, duties and obligations
conferred or imposed upon the Owner Trustee shall be conferred upon and exercised or performed by the Owner Trustee and such separate trustee or co‑trustee jointly (it being understood that such separate trustee or co‑trustee is not authorized to act
separately without the Owner Trustee joining in such act), except to the extent that under any law of any jurisdiction in which any particular act or acts are to be performed, the Owner Trustee shall be incompetent or unqualified to perform such act or
acts, in which event such rights, powers, duties and obligations (including the holding of title to the Trust Estate or any portion thereof in any such jurisdiction) shall be exercised and performed singly by such separate trustee or co‑trustee, but
solely at the direction of the Owner Trustee;
(b) no trustee under this Agreement shall be
personally liable by reason of any act or omission of any other trustee under this Agreement; and
(c) the Transferor and the Owner Trustee
acting jointly may at any time accept the resignation of or remove any separate trustee or co‑trustee.
33
Any notice, request or other writing given to the Owner Trustee shall be deemed to have been given to each of the then separate trustees and co‑trustees as effectively as if given to each of them.
Every instrument appointing any separate trustee or co‑trustee shall refer to this Agreement and the conditions of this Article. Each separate trustee and co‑trustee, upon its acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with the Owner Trustee or separately, as may be provided therein, subject to all the provisions of this Agreement, specifically including every provision of this Agreement relating to
the conduct of, affecting the liability of, or affording protection to the Owner Trustee. Each such instrument shall be filed with the Owner Trustee and a copy thereof given to the Administrator, the Servicer and the Transferor.
Any separate trustee or co‑trustee may at any time appoint the Owner Trustee, its agent or attorney‑in‑fact with full power and authority, to the extent not prohibited by law, to do any lawful act
under or in respect of this Agreement on its behalf and in its name. If any separate trustee or co‑trustee shall die, become incapable of acting, resign or be removed, all of its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Owner Trustee, to the extent permitted by law, without the appointment of a new or successor trustee.
ARTICLE ELEVEN
(a) It is the intent of the Transferor, the
Noteholders and Trust Certificateholders that for purposes of U.S. federal, state and applicable local income and franchise tax and any other tax measured in whole or in part by income, the Notes will be treated as debt secured by the 2024-1 Vehicles
and the payments on the 2024-1 Leases. The Trust Certificates shall be characterized as equity in the Issuer and the Issuer, for purposes of U.S. federal, state and applicable local income and franchise tax and any other tax measured in whole or in
part by income, shall be disregarded as an entity separate from the beneficial owner of the Trust Certificate for so long as there is only one such beneficial owner, and shall be treated as a partnership for so long as there is more than one such
beneficial owner. The parties agree that, unless otherwise required by appropriate tax authorities, the Issuer shall file or cause to be filed annual returns, reports or other forms and will treat the Issuer in a manner consistent with the
characterizations above.
(b) It is the intent of the parties hereto
that for so long as there is only one beneficial owner of the Trust Certificate, the Trust Certificate be treated as a direct ownership interest in the assets of the Issuer for purposes of U.S. federal, state and applicable local income and franchise
tax and any other tax measured in whole or in part by income. The Transferor and each other Trust Certificateholder agree to take no action inconsistent with the tax characterization of the Trust Certificate as a direct ownership interest in the assets
of the Issuer for all such tax purposes for all such periods. If, however, the Issuer is characterized as a separate entity for purposes of U.S. federal, state and applicable local income and franchise tax and any other tax measured in whole or in
34
part by income, it is the intent of the parties that the Issuer be treated as a partnership for such purposes and the Transferor, as the holder of the Trust Certificate, and any other Trust
Certificateholders, will be treated as a partner in such partnership. At any such time that the Issuer is treated as such a partnership, this Agreement will be amended, in accordance with Section 12.01 herein, and appropriate provisions will be added
so as to provide for treatment of the Issuer as a partnership for U.S. federal income tax purposes.
(a) In the event that the Issuer shall be
required to file federal or other income tax returns as a partnership, such returns shall be signed by an authorized signatory for the Transferor, for as long as it is a holder of a Trust Certificate, and thereafter, the largest percentage holder of
the Trust Certificate, or such other Person as shall be required by law to sign such returns of the Issuer.
(b) By acceptance of its beneficial interest
in a Trust Certificate, each Trust Certificateholder agrees that in the event that the Issuer is characterized as a partnership for U.S. federal income tax purposes, the Transferor, for as long as it is a holder of a Trust Certificate, and thereafter,
the largest percentage holder of the Trust Certificate, shall be designated as the “partnership representative” within the meaning of Section 6223 of the Code and the Issuer will, to the extent practicable, make the election described in Section 6226
of the Code.
Section 11.03. Tax Reporting. Unless otherwise required by appropriate tax authorities, the Issuer
shall not file or cause to be filed annual or other income or franchise tax returns and shall not be required to obtain any taxpayer identification number.
ARTICLE TWELVE
(a) This Agreement may be amended by the
Transferor and the Owner Trustee without the consent of any of the Securityholders to cure any ambiguity, correct or supplement any provision herein that may be inconsistent with any other provision herein, add any other provisions with respect to
matters or questions arising under this Agreement that are not inconsistent with the provisions of this Agreement or add or amend any provision herein in connection with permitting transfers of the Trust Certificates or otherwise; provided, however,
that such action shall not materially adversely affect the interests of any Holder of a 2024-1 SUBI Certificate (which, so long as any Notes are outstanding, shall include the Indenture Trustee) or any Securityholder. Each amendment described above
shall be deemed not to materially and adversely affect the interests of any holder of Notes, if the Rating Agency Condition is satisfied.
(b) This Agreement may also be amended from
time to time by the Transferor and the Owner Trustee, with satisfaction of the Rating Agency Condition, with the
35
consent of the Noteholders holding a majority of the Outstanding Amount and, to the extent affected thereby, the consent of the Trust Certificateholders holding not less than a majority of the
aggregate Certificate Percentage Interest, for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Agreement or of modifying in any manner the rights of the Noteholders or the Trust
Certificateholders. No such amendment shall, however, (i) increase or reduce in any manner the amount of, or accelerate or delay the timing of, distributions that are required to be made on the Notes or the Trust Certificates or (ii) reduce the
percentage of the aggregate Certificate Percentage Interest or the Outstanding Amount required to consent to any such amendment, without the consent of 100% of the Noteholders and the holders of 100% of all outstanding Trust Certificates, and provided,
further that an Opinion of Counsel shall be furnished to the Indenture Trustee and the Owner Trustee to the effect that such amendment shall not (A) affect the treatment of the Notes as debt for U.S. federal income tax purposes, (B) be deemed to cause
a taxable exchange of the Notes for U.S. federal income tax purposes or (C) cause the Issuer or the Vehicle Trust to be classified as an association or a publicly traded partnership, in either case taxable as a corporation for U.S. federal income tax
purposes. This Agreement may also be amended or supplemented from time to time, at the request of Trust Certificateholders holding not less than 75% of the aggregate Certificate Percentage Interest, to approve any trust purpose with respect to the
Issuer in addition to the purpose authorized pursuant to Section 2.03(b), upon not less than 90 days notice from the Administrator to each Rating Agency and each Noteholder and subject to each of (1) the satisfaction of the Rating Agency Condition, and
(2) the consent of Noteholders holding at least 75% of the Outstanding Amount, and provided, further that an Opinion of Counsel shall be furnished to the Indenture Trustee and the Owner Trustee to the effect that such amendment or supplement shall not
affect the treatment of any outstanding Notes for U.S. federal income tax purposes, or cause the Issuer or the Vehicle Trust to be characterized as an association or a publicly traded partnership, in either case taxable as a corporation for U.S.
federal income tax purposes.
It shall not be necessary for the consent of Trust Certificateholders, the Noteholders or the Indenture Trustee pursuant to this Section to approve the particular form of any proposed amendment or
consent, but it shall be sufficient if such consent shall approve the substance thereof. The manner of obtaining such consents (and any other consents of Trust Certificateholders provided for in this Agreement or in any other Basic Document) and of
evidencing the authorization of the execution thereof by Trust Certificateholders shall be subject to such reasonable requirements as the Owner Trustee may prescribe.
(c) Notwithstanding Section 12.01(b), this
Agreement may be amended at any time by the parties hereto to the extent reasonably necessary to assure that none of the Vehicle Trust, the Issuer or the Transferor will be characterized as an association or a publicly traded partnership, in either
case taxable as a corporation for U.S. federal income tax purposes.
(d) Prior to the execution of any amendment to
this Agreement or any other Basic Document, the Owner Trustee shall be entitled to receive and rely upon an Opinion of Counsel stating that the execution of such amendment is authorized or permitted by
36
this Agreement and the other Basic Documents and that all conditions precedent herein and in the other Basic Documents to the execution and delivery of such amendment have been satisfied. The Owner
Trustee may, but shall not be obligated to, enter into any such amendment which affects the Owner Trustee’s own rights, duties, indemnities or immunities under this Agreement or otherwise.
(e) The Owner Trustee shall give the Trust
Certificateholders 30 days’ written notice of any proposed amendment or supplement hereto, unless such amendment or supplement does not materially adversely affect the Trust Certificateholders or if Securityholder consent is required and this Agreement
provides that the Owner Trustee shall not enter into such amendment unless a majority of the aggregate Certificate Percentage Interest of Trust Certificateholders or Noteholders consent in writing.
(f) No amendment or supplement hereto shall be effective against the Certificate
Registrar or the Paying Agent if such amendment or supplement would adversely affect the Certificate Registrar or the Paying Agent, as applicable, including, without limitation, any amendment or supplement that would increase the duties or liabilities
of, or adversely change the economic consequences to, the Certificate Registrar or the Paying Agent, unless the Certificate Registrar or the Paying Agent, as applicable, otherwise consents in writing.
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.
Section 12.02. No Legal Title to Owner Trust Estate. The Trust Certificateholder shall not have
legal title to any part of the Owner Trust Estate. The Trust Certificateholder shall be entitled to receive distributions with respect to its Trust Certificate only in accordance with Articles Five and Nine. No transfer, by operation of law or
otherwise, of any right, title or interest of the Trust Certificateholders to and in their ownership interest in the Owner 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 Owner Trust Estate.
Section 12.03. Limitations on Rights of Others. Except for Section 2.07, the provisions of this
Agreement are solely for the benefit of the Owner Trustee, the Transferor, the Trust Certificateholders, the Administrator, the Servicer, the Indenture Trustee, the Asset Representations Reviewer and the Noteholders, and nothing in this Agreement
(other than Section 2.07), whether express or implied, shall be construed to give to any other Person any legal or equitable right, remedy or claim in the Owner Trust Estate or under or in respect of this Agreement or any covenants, conditions or
provisions contained herein.
Section 12.04. Notices. All demands, notices and communications hereunder shall be in writing and
shall be delivered or mailed by registered or certified first‑class United States mail, postage prepaid, hand delivery, prepaid courier service and addressed in each case as follows: (i) if to the Owner Trustee, at Xxxxxx Square North, 0000 Xxxxx
Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000-0000, Attention: Corporate Trust Administration; (ii) if to the Transferor, at 000 Xxxxxxxx Xxxxx Xxxx, Xxxxxxxxx Xxxx, Xxx Xxxxxx 00000, Attention: General Counsel, with a copy (which shall not constitute
notice) to Xxxx Xxxxxxxx, Esq.,
37
Any notice required or permitted to be given to a Trust Certificateholder shall be given by first‑class mail, confirmed, facsimile or overnight courier, postage prepaid, at the address of such Trust
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 Trust Certificateholder receives such notice.
Section 12.05. Severability. Any provision of this Agreement that is prohibited or unenforceable
in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction.
Section 12.06. Counterparts. This Agreement may be executed by the parties hereto in separate
counterparts, each of which when so executed and delivered shall be an original, but all such counterparts shall together constitute but one and the same instrument. Each party agrees that this Agreement and any other documents to be delivered in
connection herewith may be electronically signed, and that any electronic signatures appearing on this Agreement or such other documents are the same as handwritten signatures for the purposes of validity, enforceability, and admissibility to the
fullest extent permitted by law.
Section 12.07. Successors and Assigns. All covenants and agreements contained herein shall be
binding upon, and inure to the benefit of, the Transferor, the Owner Trustee and the Trust Certificateholder and their respective successors and permitted assigns, all to the extent as herein provided. Any request, notice, direction, consent, waiver
or other instrument or action by the Trust Certificateholder shall bind the successors and assigns of the Transferor or such Trust Certificateholder.
Section 12.08. No Petition. To the fullest extent permitted by applicable law, the Owner Trustee,
any Paying Agent, the Transferor and any Trust Certificateholder by accepting a Trust Certificate, covenant and agree that prior to the date that is one year and one day after the date upon which all obligations and payments under the Securitized
Financing have been paid in full, they will not institute against, or join any Person in instituting against any Trust Certificateholder, the UTI Beneficiary (and the general partner of the UTI Beneficiary that is a partnership, or the managing member
of the UTI Beneficiary that is a limited liability company), the Vehicle Trustee, the Vehicle Trust, any Special Purpose Affiliate (and the
38
Section 12.09. No Recourse. Each Trust Certificate entitles the holder thereof to the respective rights and benefits set forth
in this Agreement and in the Trust Certificate. The Trust Certificates do not represent interests in or obligations of the Servicer, the Administrator, the Transferor, the Owner Trustee, any Paying Agent, the Indenture Trustee or any Affiliate thereof
and no recourse may be had against such parties or their assets, except as may be expressly set forth or contemplated in this Agreement, the Trust Certificates or the other Basic Documents.
Section 12.10. Headings. The headings of the various Articles and Sections herein are for
convenience of reference only and shall not define or limit any of the terms or provisions hereof.
Section 12.11. Governing Law. This Agreement shall be construed in accordance with the laws of the
State of Delaware, without reference to its conflicts of law provisions, and the obligations, rights and remedies of the parties hereunder shall be determined in accordance with such laws.
Section 12.12. Certificates Nonassessable and Fully Paid. Subject to Section 2.07, Trust
Certificateholders shall not be personally liable for obligations of the Issuer. The interests represented by the Trust Certificates shall be nonassessable for any losses or expenses of the Issuer or for any reason whatsoever, and, upon authentication
thereof pursuant to Section 3.03, 3.04 and 3.05, the Trust Certificates shall be deemed fully paid.
Section 12.13. Communications with Rating Agencies. If the Owner Trustee shall receive any
written or oral communication from any Rating Agency (or any of their respective officers, directors or employees) with respect to the transactions contemplated hereby or under the Basic Documents or in any way relating to the Notes, the Owner Trustee
agrees to refrain from communicating with such Rating Agency and to promptly (and, in any event, within one Business Day) notify the Administrator of such communication. The Owner Trustee agrees to coordinate with the Administrator with respect to any
communication to a Rating Agency and further agrees that in no event shall the Owner Trustee engage in any oral communication with respect to the transactions contemplated hereby or under the Basic Documents or in any way relating to the Notes with any
Rating Agency (or any of their respective officers, directors or employees) without the participation of the Administrator.
Section 12.14. Financial Crimes Enforcement Network’s Customer Due Diligence Requirements. Pursuant to applicable law, including the
Customer Identification Program requirements established under the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Title III of Pub. L. 107 56 (signed into law October 26, 2001)
and its implementing regulations (collectively,
39
USA PATRIOT Act), the Financial Crimes Enforcement Network’s (FinCEN) Customer Due Diligence Requirements and such other laws, rules, regulations and executive orders in effect from time to time
applicable to banking institutions (“Applicable Law”), the Owner Trustee is required to obtain on or before closing, and from time to time thereafter, documentation to verify and record information that identifies each person who opens an
account. For a non-individual person such as a business entity, a charity, a trust or other legal entity, the Owner Trustee will ask for documentation to verify the entity’s formation and existence, its financial statements, licenses, tax
identification documents, identification and authorization documents from individuals claiming authority to represent the entity and other relevant documentation and information (including beneficial owners of such entities). To the fullest extent
permitted by Applicable Law, the Owner Trustee may conclusively rely on, and shall be fully protected and indemnified in relying on, any such information received. Failure to provide such information may result in an inability of the Owner Trustee to
perform its obligations hereunder, which, at the sole option of the Owner Trustee, may result in the Owner Trustee’s resignation in accordance with Section 10.02 of this Agreement. In the event of any change in beneficial ownership in the Trust (or
any beneficial interest in that interest, regardless of form), such change shall be accompanied by IRS Form W-9, as applicable, and such other documentation as may be required by the Owner Trustee in order to comply with Applicable Law. In addition to
the Owner Trustee's obligations under Applicable Law, the Corporate Transparency Act (31 U.S.C § 5336) and its implementing regulations (collectively, the “CTA” and together with Applicable Law, “AML Law”), may require the Issuer to file
reports with FinCEN after the date of this Agreement. It shall be the Administrator’s duty, and not the Owner Trustee’s duty, to prepare such filings, to cause the Issuer to make such filings, and to cause the Issuer to comply with its obligations
under the CTA, if any. The parties hereto, and each Trust Certificateholder by virtue of its acceptance of a Trust Certificate, for purposes of AML Law, to the fullest extent permitted by law, (i) agree that the sole Trust Certificateholder on the date
hereof is the sole direct owner of the Issuer, (ii) acknowledge that the Owner Trustee acts solely as a directed trustee at the direction of the Administrator or the Trust Certificateholder hereunder, as applicable, and (iii) agree that one or more
Controlling Parties of the Trust Certificateholder, as set forth in Article IV, or the Administrator, as applicable, are and shall deemed to be the parties with the power and authority to exercise substantial control over the Issuer.
ARTICLE THIRTEEN
The Transferor and the Owner Trustee acknowledge and agree that the purpose of Article XIII of this Agreement is to facilitate compliance by the Transferor with the provisions of Regulation AB and
related rules and regulations of the Commission.
Neither the Transferor or the Owner Trustee shall exercise its right to request delivery of information or other performance under these provisions other than in good faith, or for purposes other than
compliance with the Securities Act, the Exchange Act and the rules and regulations of the Commission thereunder (or the provision in a private offering of disclosure comparable to that required under the Securities Act). The Owner Trustee acknowledges
that interpretations of the requirements of Regulation AB may change over time, whether due to interpretive guidance provided by the Commission or its staff, consensus among participants in the asset-backed
40
securities markets, advice of counsel, or otherwise, and agrees to comply with requests made by the Transferor in good faith for delivery of information under these provisions on the basis of evolving interpretations of
Regulation AB. In connection therewith, the Owner Trustee shall cooperate fully with the Transferor to deliver to the Transferor (including any of its assignees or designees), any and all statements, reports, certifications, records, attestations, and
any other information necessary in the good faith determination of the Transferor, to permit the Transferor to comply with the provisions of Regulation AB, together with such disclosures relating to the Owner Trustee or the servicing of the 2024-1
Leases and the 2024-1 Vehicles, reasonably believed by the Transferor to be necessary in order to effect such compliance.
41
IN WITNESS WHEREOF, the parties hereto have caused this Amended and Restated Trust Agreement to be duly executed by their respective officers hereunto duly authorized, as of the day and year first
above written.
BMW AUTO LEASING LLC,
as Transferor
By:
Name:
Title:
as Transferor
By:
Name:
Title:
By:
Name:
Title:
Name:
Title:
WILMINGTON TRUST, NATIONAL ASSOCIATION, as Owner Trustee
By:
Name:
Title:
By:
Name:
Title:
42
EXHIBIT A
FORM OF TRUST CERTIFICATE
SEE REVERSE FOR CERTAIN DEFINITIONS
THIS TRUST CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR UNDER ANY STATE SECURITIES OR BLUE SKY LAW. THE HOLDER HEREOF, BY
PURCHASING THIS TRUST CERTIFICATE, AGREES THAT THIS TRUST CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY IN COMPLIANCE WITH THE SECURITIES ACT AND OTHER APPLICABLE LAWS AND ONLY PURSUANT TO RULE 144A UNDER THE SECURITIES
ACT (“RULE 144A”) TO AN INSTITUTIONAL INVESTOR THAT THE HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A (A “QIB”), PURCHASING FOR ITS OWN ACCOUNT OR A QIB PURCHASING FOR THE ACCOUNT OF A QIB, IN EACH CASE
WHOM THE HOLDER HAS INFORMED THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A SUBJECT TO THE RECEIPT BY THE OWNER TRUSTEE AND THE TRANSFEROR OF A LETTER SUBSTANTIALLY IN THE FORM PROVIDED IN THE TRUST AGREEMENT
AND THE RECEIPT BY THE OWNER TRUSTEE AND THE TRANSFEROR OF SUCH OTHER EVIDENCE ACCEPTABLE TO THE OWNER TRUSTEE AND THE TRANSFEROR THAT SUCH REOFFER, RESALE, PLEDGE OR TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT AND OTHER APPLICABLE LAWS OR IN
EACH CASE IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE UNITED STATES AND SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND ANY OTHER APPLICABLE JURISDICTION. THIS TRUST CERTIFICATE MAY NOT BE ACQUIRED OR HELD WITH PLAN ASSETS OF ANY OF
(I) AN EMPLOYEE BENEFIT PLAN, AS DEFINED IN SECTION 3(3) OF ERISA, THAT IS SUBJECT TO TITLE I OF ERISA, (II) A PLAN DESCRIBED IN SECTION 4975(e)(1) OF THE CODE, THAT IS SUBJECT TO SECTION 4975 OF THE CODE, (III) A GOVERNMENTAL OR CHURCH PLAN, AS
DEFINED IN SECTIONS 3(32) AND 3(33) OF ERISA, RESPECTIVELY, SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW WHICH IS SUBSTANTIALLY SIMILAR TO THE PROVISIONS OF SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE, (IV) AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE
PLAN ASSETS BY REASON OF A PLAN’S INVESTMENT IN THE ENTITY (WITHIN THE MEANING OF DEPARTMENT OF LABOR REGULATION 29 C.F.R. SECTION 2510.3‑101, AS MODIFIED BY SECTION 3(42) OF ERISA) OR (V) A PERSON INVESTING “PLAN ASSETS” OF ANY SUCH PLAN OR ENTITY
(EACH, A “BENEFIT PLAN”). BY ACCEPTANCE OF THIS TRUST CERTIFICATE OR AN INTEREST THEREIN, THE HOLDER HEREOF SHALL BE DEEMED TO REPRESENT AND WARRANT THAT ITS ACQUISITION AND HOLDING IS IN COMPLIANCE WITH THE FOREGOING RESTRICTION ON BENEFIT PLAN
ASSETS.
THIS TRUST CERTIFICATE IS NOT TRANSFERABLE UNLESS THE PARTY TRANSFERRING THIS TRUST CERTIFICATE (EXCEPTING TRANSFERS BY THE INITIAL PURCHASER) DELIVERS TO THE OWNER TRUSTEE, THE TRANSFEROR,
A-1
AND BNY MELLON TRUST OF DELAWARE, AS TRUSTEE OF FINANCIAL SERVICES VEHICLE TRUST (THE “VEHICLE TRUST”), AN OPINION OF COUNSEL STATING THE CIRCUMSTANCES AND CONDITIONS UPON WHICH THIS TRUST CERTIFICATE MAY BE TRANSFERRED
AND THAT SUCH TRANSFER AS DESCRIBED THEREIN WILL NOT CAUSE EITHER THE ISSUER OR THE VEHICLE TRUST TO BE CHARACTERIZED AS AN ASSOCIATION OR A PUBLICLY TRADED PARTNERSHIP, IN EITHER CASE TAXABLE AS A CORPORATION FOR U.S. FEDERAL INCOME TAX PURPOSES.
THIS TRUST CERTIFICATE IS NOT TRANSFERABLE EXCEPT IN THE EVENT OF THE DISSOLUTION, TERMINATION OR BANKRUPTCY OF BMW AUTO LEASING LLC WHEN IT IS HOLDER HEREOF, AND ANY TRANSFER IN VIOLATION OF THIS
PROVISION SHALL BE NULL AND VOID.
TRUST CERTIFICATE
evidencing a beneficial interest in the Issuer, as defined below, the property of which includes, among other things, the 2024-1 SUBI Certificate (transferred pursuant to the Issuer SUBI Certificate Transfer Agreement),
evidencing a beneficial interest in the 2024-1 SUBI Assets. The property of the Issuer has been pledged to the Indenture Trustee pursuant to the Indenture to secure the payment of the Notes issued thereunder.
This Trust Certificate does not represent an interest in or obligation of the Transferor, BMW Financial Services NA, LLC, the Owner Trustee, any Paying Agent or any of their respective Affiliates,
except to the extent described below.
A-2
|
NUMBER
|
Percentage Interest: ____%
|
|
R‑_____
|
This certifies that BMW AUTO LEASING 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 Lease Trust 2024-1 (the “Issuer”) formed by BMW Auto Leasing LLC, a Delaware limited liability company (the “Transferor”).
The Issuer was created pursuant to a trust agreement, as amended and restated as of February 14, 2024 (the “Trust Agreement”), between the Transferor and Wilmington Trust, National Association,
as trustee (the “Owner Trustee”), a summary of certain of the pertinent provisions of which is set forth below. Capitalized terms used herein that are not otherwise defined shall have the meanings assigned thereto in the Trust Agreement.
This Trust Certificate is one of the duly authorized Trust Certificates designated under the Trust Agreement. Also issued under an indenture, dated as of February 14, 2024 (the “Indenture”),
between the Issuer and U.S. Bank Trust Company, National Association, as trustee (the “Indenture Trustee”), are the Class A-1 Notes, Class A-2a Notes, Class A-2b Notes, Class A-3 Notes and Class A-4 Notes. This Trust Certificate is issued under
and is subject to the terms, provisions and conditions of the Trust Agreement, to which Trust Agreement the holder of this Trust Certificate by virtue of the acceptance hereof assents and by which such Trust Certificateholder is bound. The property of
the Issuer primarily includes, among other things, (i) the 2024-1 SUBI Certificate (transferred pursuant to the Issuer SUBI Certificate Transfer Agreement), evidencing a 100% beneficial interest in the 2024-1 SUBI Assets, (ii) the security interest of
the Issuer in the Reserve Fund Property and (iii) all proceeds of the foregoing. The rights of the Issuer in the foregoing property have been pledged by the Issuer to the Indenture Trustee to secure the payment of the Notes.
The Trust Certificates represent obligations of the Issuer only and do not represent interests in, recourse to or obligations of the Transferor, the UTI Beneficiaries, the Owner Trustee any Paying
Agent or any of their respective Affiliates.
Under the Trust Agreement, there will be distributed on the 25th of each month (or, if such day is not a Business Day, the next Business Day), commencing on March 25, 2024 (each, a “Payment Date”),
to the Person in whose name this Trust Certificate is registered at the close of business on the Business Day immediately preceding each Payment Date (each, a “Record Date”) such Trust Certificateholder’s percentage interest in the amount to be
distributed with respect to the Trust Certificates on such Payment Date and any remaining amounts shall be distributed to the Transferor as holder of the Trust Certificate pursuant to the terms of the Basic Documents.
The holder of this Trust Certificate acknowledges and agrees that its rights to receive payments in respect of this Trust Certificate are subordinated to the rights of the Noteholders as described in
the Indenture.
A-3
It is the intent of the Transferor and Trust Certificateholders that the Trust Certificates be treated as equity of the Issuer for purposes of U.S. federal, state and applicable local income and
franchise tax and any other tax measured in whole or in part by income. If the Issuer is characterized as a separate entity for purposes of U.S. federal, state and applicable local income and franchise tax and any other tax measured in whole or in
part by income, it is the intent of the parties to the Trust Agreement that it be treated as a partnership for such purposes and the Trust Certificateholders will be treated as partners in that partnership. The Transferor and the other Trust
Certificateholders, by acceptance of a Trust Certificate, agree to take no action inconsistent with such tax treatment of the Trust Certificates.
Each Trust Certificateholder by accepting this Trust Certificate, covenants and agrees that prior to the date that is one year and one day after the date upon which all obligations and payments under
the related transaction documents have been paid in full, it will not institute against, or join any Person in instituting against any Trust Certificateholder, the UTI Beneficiary (and the general partner of the UTI Beneficiary that is a partnership,
or the managing member of the UTI Beneficiary that is a limited liability company), the Vehicle Trustee, the Vehicle Trust, any Special Purpose Affiliate (and the general partner of any Special Purpose Affiliate that is a partnership, or the managing
member of any Special Purpose Affiliate that is a limited liability company) that holds a beneficial interest in the Vehicle Trust, the Transferor, the Owner Trustee, the Issuer, the Indenture Trustee or any Affiliate or beneficiary of the same, any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding or other proceedings under any United States federal or state bankruptcy or similar law.
Distributions on this Trust Certificate will be made as provided in the Trust Agreement by or on behalf of the Owner Trustee by wire transfer or by check mailed to the Trust Certificateholder of record
in the Certificate Register without the presentation or surrender of this Trust Certificate or the making of any notation hereon. Except as otherwise provided in the Trust Agreement and notwithstanding the above, the final payment on this Trust
Certificate will be made after due notice by the Owner Trustee of the pendency of such payment and only upon presentation and surrender of this Trust Certificate at the office or agency maintained for such purpose by the Certificate Registrar in The
City of New York.
Reference is hereby made to the further provisions of this Trust Certificate set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at
this place.
Unless the certificate of authentication hereon shall have been executed by an authorized officer of the Owner Trustee, by manual signature, this Trust Certificate shall not entitle the holder hereof
to any benefit under the Trust Agreement or be valid for any purpose.
THIS TRUST CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS CONFLICTS OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
A-4
IN WITNESS WHEREOF, the Owner Trustee, on behalf of the Issuer and not in its individual capacity, has caused this Trust Certificate to be duly executed.
|
Dated: ________________________
|
|
|
|
By: Wilmington
Trust, National Association, not in its individual capacity but solely as Owner Trustee
|
||
|
By:
Name: Title: |
||
OWNER TRUSTEE’S CERTIFICATE OF AUTHENTICATION
This is one of the Trust Certificates referred to in the within‑mentioned Trust Agreement.
|
Wilmington Trust, National Association,
as Owner Trustee |
||
|
By:
|
||
A-5
[Reverse of Trust Certificate]
This Trust Certificate does not represent an obligation of or an interest in the Transferor, the Administrator, the Servicer, the Owner Trustee, any Paying Agent, the Indenture Trustee or any of their
respective Affiliates, and no recourse may be had against such parties or their assets, except as may be expressly set forth or contemplated herein or in the Trust Agreement or the other Basic Documents. In addition, this Trust Certificate is not
guaranteed by any governmental agency or instrumentality and is limited in right of payment to certain collections and recoveries and certain other amounts respecting the assets of the Issuer, all as more specifically set forth in the Indenture. The
Transferor will furnish, upon the request of any holder of a Trust Certificate, such information as is specified in paragraph (d)(4) of Rule 144A of the Securities Act of 1933, as amended, with respect to the Issuer.
The Trust Agreement may be amended by the Transferor and the Owner Trustee, in some cases without the consent of any of the Securityholders in the manner set forth therein, and any such amendment will
bind each holder and transferee of this Certificate.
As provided in the Trust Agreement, and if the Transferor delivers an Opinion of Counsel that the Trust Certificates are transferable in accordance with the terms set forth therein, which opinion the
Transferor has not determined can be given under the Internal Revenue Code and existing and proposed regulations thereunder, the transfer of this Trust Certificate is registerable in the Certificate Register upon surrender of this Trust Certificate for
registration of transfer at the offices or agencies of the Certificate Registrar maintained by the Trust in the Borough of Manhattan, The City of New York, accompanied by a written instrument of transfer in form satisfactory to the Owner Trustee and
the Certificate Registrar duly executed by the Trust Certificateholder hereof or such Trust Certificateholder’s attorney duly authorized in writing, and thereupon one or more new Trust Certificates of the same class and in authorized denominations
evidencing the same aggregate interest in the Issuer will be issued to the designated transferee. The initial Certificate Registrar appointed under the Trust Agreement is U.S. Bank Trust Company, National Association.
The Trust Certificates are issuable only as registered Trust Certificates without coupons or principal balance. As provided in the Trust Agreement and subject to certain limitations therein set forth,
Trust Certificates are exchangeable for new Trust Certificates of authorized percentage interests evidencing the same aggregate percentage interest, as requested by the Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange, but the Owner Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or governmental charge payable in connection therewith.
The Owner Trustee, the Certificate Registrar and any agent of the Owner Trustee or the Certificate Registrar may treat the Person in whose name this Trust Certificate is registered as the owner hereof
for all purposes, and none of the Owner Trustee, the Certificate Registrar or any such agent shall be affected by any notice to the contrary.
The obligations and responsibilities created by the Trust Agreement and the trust created thereby shall terminate upon the payment to Trust Certificateholders of all amounts required to
A-6
be paid to them pursuant to the Trust Agreement and the Indenture and the disposition of all property held as part of the Owner Trust Estate.
Any prospective transferee of this Trust Certificate will be required to deliver a letter to the Transferor, the Certificate Registrar and the Underwriter substantially in the form of Exhibit C to the
Trust Agreement, which letter includes a representation that such prospective transferee is not a Benefit Plan.
This Trust Certificate may not be acquired by, or transferred, sold, pledged or otherwise disposed to or for the account of, a Benefit Plan. By accepting and holding this Trust Certificate, the holder
hereof shall be deemed to have represented and warranted that it is not a Benefit Plan and is not acquiring this Trust Certificate or an interest therein for the account of a Benefit Plan.
A-7
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
_________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
the within Trust Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing ______________________________ attorney to
transfer said Trust Certificate on the books of the Certificate Registrar,
with full power of substitution in the premises.
Dated: ___________________
*
Signature Guaranteed:
Signature Guaranteed:
*
* NOTICE: The signatures(s) on this Assignment must correspond with the name(s) as written on the face of the within Trust Certificate in every particular without alteration, enlargement or any
change whatsoever. Such signature must be guaranteed by a member firm of the New York Stock Exchange or a commercial bank or trust company.
A-8
EXHIBIT B
FORM OF RULE 144A CERTIFICATE
Dated:
BMW Auto Leasing LLC
c/o BMW Financial Services NA, LLC,
its Managing Member
000 Xxxxxxxx Xxxxx Xxxx
Xxxxxxxxx Xxxx, Xxx Xxxxxx 00000
c/o BMW Financial Services NA, LLC,
its Managing Member
000 Xxxxxxxx Xxxxx Xxxx
Xxxxxxxxx Xxxx, Xxx Xxxxxx 00000
Wilmington Trust, National Association,
as Owner Trustee
Xxxxxx Square North, 0000 Xxxxx Xxxxxx Xxxxxx
as Owner Trustee
Xxxxxx Square North, 0000 Xxxxx Xxxxxx Xxxxxx
Wilmington, Delaware 19890-1600
Attn: Corporate Trust Administration
Attn: Corporate Trust Administration
U.S. Bank Trust Company, National Association,
as Certificate Registrar
000 Xxxx Xxxxxxxx Xxxxxx
as Certificate Registrar
000 Xxxx Xxxxxxxx Xxxxxx
St. Xxxx, Minnesota 55107
Ladies and Gentlemen:
This is to notify you as to the transfer of [___]% Certificate Percentage Interest of the Asset Backed Certificates (the “Trust Certificates”) of BMW Vehicle Lease Trust 2024-1 (the “Issuer”).
The undersigned is the holder of the Trust Certificates and with this notice hereby deposits with the Owner Trustee [___]% Certificate Percentage Interest of the Trust Certificates and requests that
Trust Certificates in the same Certificate Percentage Interest be issued, executed and authenticated and registered to the purchaser on ____________, as specified in the Trust Agreement, as follows:
|
Name:
|
|
Address:
|
|
Taxpayer I.D. No:
|
The undersigned represents and warrants that the undersigned (a) reasonably believes the purchaser is a “qualified institutional buyer,” as defined in Rule 144A under the Securities Act of 1933, as
amended (the “Act”), (b) such purchaser has acquired the Trust Certificates in a transaction effected in accordance with the exemption from the registration requirements of the Act provided by Rule 144A and (c) if the purchaser has purchased the
Trust Certificates for one or more accounts for which it is acting as fiduciary or agent, (i) each such account is a qualified institutional buyer and (ii) the purchaser is acquiring Trust Certificates for its own account or for
B-1
one or more institutional accounts for which it is acting as fiduciary or agent in a minimum Certificate Percentage Interest of at
least 5%.
Very truly yours,
By:
_________________________
Name:
Title:
B-2
EXHIBIT C
FORM OF RULE 144A LETTER
QUALIFIED INSTITUTIONAL BUYER
Dated:
Wilmington Trust, National Association,
as Owner Trustee
Xxxxxx Square North, 0000 Xxxxx Xxxxxx Xxxxxx
as Owner Trustee
Xxxxxx Square North, 0000 Xxxxx Xxxxxx Xxxxxx
Wilmington, Delaware 19890-1600
Attn: Corporate Trust Administration
Attn: Corporate Trust Administration
U.S. Bank Trust Company, National Association,
as Certificate Registrar
000 Xxxx Xxxxxxxx Xxxxxx
as Certificate Registrar
000 Xxxx Xxxxxxxx Xxxxxx
St. Xxxx, Minnesota 55107
Barclays Capital Inc.,
as Representative
000 0xx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxx Xxxx, Xxx Xxxx 00000
BMW Auto Leasing LLC
c/o BMW Financial Services NA, LLC,
its Managing Member
000 Xxxxxxxx Xxxxx Xxxx
Xxxxxxxxx Xxxx, Xxx Xxxxxx 00000
c/o BMW Financial Services NA, LLC,
its Managing Member
000 Xxxxxxxx Xxxxx Xxxx
Xxxxxxxxx Xxxx, Xxx Xxxxxx 00000
Ladies and Gentlemen:
In connection with our proposed purchase of [___]% Certificate Percentage Interest of the Asset-Backed Certificates (the “Certificates”) representing an undivided interest in the BMW Vehicle
Lease Trust 2024-1 (the “Trust”), the investor on whose behalf the undersigned is executing this letter (the “Purchaser”) confirms that:
1. The Purchaser has relied upon its own tax, legal and financial advisors in connection with its decision
to purchase the Certificates.
2. The Purchaser is (A) a “Qualified Institutional Buyer” (as defined in Rule 144A under the Securities Act
of 1933, as amended (the “1933 Act”)) and has delivered to you a certificate substantially in the form attached hereto as Annex 1 or Annex 2, as applicable and (B) acquiring the Certificates for its own account or for the account of an investor
of the type described in clause (A) above as to each of which the Purchaser exercises sole investment discretion. The Purchaser is purchasing the Certificates for investment purposes and not with a view to, or for, the offer or sale in connection
with, a public distribution or in any other manner that would violate the 1933 Act or the securities or blue sky laws of any state.
C-1
3. The Purchaser understands that the Certificates have not been and will not be registered under the 1933
Act or under the securities or blue sky laws of any state, and that (i) if it decides to resell, pledge or otherwise transfer any Certificate, such Certificate may be resold, pledged or transferred without registration only to an entity that has
delivered to the Transferor and the Owner Trustee a certification that it is a Qualified Institutional Buyer that purchases (1) for its own account or (2) for the account of such a Qualified Institutional Buyer, that is, in either case, aware that the
resale, pledge or transfer is being made in reliance on said Rule 144A and (ii) it will, and each subsequent holder will be required to, notify any purchaser of any Certificate from it of the resale restrictions referred to in clause (i) above.
4. The Purchaser understands that each of Certificate will bear a legend to the following effect, unless
otherwise agreed by the Transferor and the Owner Trustee:
“THIS TRUST CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR UNDER ANY STATE SECURITIES OR BLUE SKY LAW. THE HOLDER HEREOF,
BY PURCHASING THIS TRUST CERTIFICATE, AGREES THAT THIS TRUST CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY IN COMPLIANCE WITH THE SECURITIES ACT AND OTHER APPLICABLE LAWS AND ONLY PURSUANT TO RULE 144A UNDER THE SECURITIES
ACT (“RULE 144A”) TO AN INSTITUTIONAL INVESTOR THAT THE HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A (A “QIB”), PURCHASING FOR ITS OWN ACCOUNT OR A QIB PURCHASING FOR THE ACCOUNT OF A QIB, IN EACH CASE
WHOM THE HOLDER HAS INFORMED THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A SUBJECT TO THE RECEIPT BY THE OWNER TRUSTEE AND THE TRANSFEROR OF A LETTER SUBSTANTIALLY IN THE FORM PROVIDED IN THE TRUST AGREEMENT
AND THE RECEIPT BY THE OWNER TRUSTEE AND THE TRANSFEROR OF SUCH OTHER EVIDENCE ACCEPTABLE TO THE OWNER TRUSTEE AND THE TRANSFEROR THAT SUCH REOFFER, RESALE, PLEDGE OR TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT AND OTHER APPLICABLE LAWS OR IN
EACH CASE IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND ANY OTHER APPLICABLE JURISDICTION. THIS CERTIFICATE MAY NOT BE ACQUIRED OR HELD WITH PLAN ASSETS OF ANY OF (I) AN EMPLOYEE BENEFIT PLAN, AS DEFINED IN
SECTION 3(3) OF ERISA, THAT IS SUBJECT TO TITLE I OF ERISA, (II) A PLAN DESCRIBED IN SECTION 4975(e)(1) OF THE CODE, THAT IS SUBJECT TO SECTION 4975 OF THE CODE, (III) A GOVERNMENTAL OR CHURCH PLAN, AS DEFINED IN SECTIONS 3(32) AND 3(33) OF ERISA,
RESPECTIVELY, SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW WHICH IS SUBSTANTIALLY SIMILAR TO THE PROVISIONS OF SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE, (IV) AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF A PLAN’S INVESTMENT
IN THE ENTITY (WITHIN THE MEANING OF DEPARTMENT OF LABOR REGULATION 29 C.F.R. SECTION 2510.3‑101,
C-2
AS MODIFIED BY SECTION 3(42) OF ERISA), OR (V) A PERSON INVESTING “PLAN ASSETS” OF ANY SUCH PLAN OR ENTITY (EACH, A “BENEFIT PLAN”). BY ACCEPTANCE OF THIS CERTIFICATE OR AN INTEREST THEREIN, THE HOLDER
HEREOF SHALL BE DEEMED TO REPRESENT AND WARRANT THAT ITS ACQUISITION AND HOLDING IS IN COMPLIANCE WITH THE FOREGOING RESTRICTION ON BENEFIT PLAN ASSETS. THIS TRUST CERTIFICATE IS NOT TRANSFERABLE UNLESS THE PARTY
TRANSFERRING THIS TRUST CERTIFICATE (EXCEPTING TRANSFERS BY THE INITIAL PURCHASER) DELIVERS TO THE OWNER TRUSTEE, THE TRANSFEROR, AND BNY MELLON TRUST OF DELAWARE, AS TRUSTEE OF FINANCIAL SERVICES VEHICLE
TRUST (THE “VEHICLE TRUST”), AN OPINION OF COUNSEL STATING THE CIRCUMSTANCES AND CONDITIONS UPON WHICH THIS TRUST CERTIFICATE MAY BE TRANSFERRED AND THAT SUCH TRANSFER AS DESCRIBED THEREIN WILL NOT CAUSE EITHER THE ISSUER OR THE VEHICLE TRUST TO BE
CHARACTERIZED AS AN ASSOCIATION OR A PUBLICLY TRADED PARTNERSHIP, IN EITHER CASE TAXABLE AS A CORPORATION FOR U.S. FEDERAL INCOME TAX PURPOSES.
THIS TRUST CERTIFICATE IS NOT TRANSFERABLE EXCEPT IN THE EVENT OF THE DISSOLUTION, TERMINATION OR BANKRUPTCY OF BMW AUTO LEASING LLC WHEN IT IS HOLDER HEREOF,
AND ANY TRANSFER IN VIOLATION OF THIS PROVISION SHALL BE NULL AND VOID.”
5. The Purchaser will be the beneficial owner of the Certificate and either (A) is not, and will not
become, a partnership, Subchapter S corporation or grantor trust for U.S. federal income tax purposes or (B) is such an entity, but none of the direct or indirect beneficial owners of any of the interests in such transferee have allowed or caused, or
will allow or cause, 50% or more (or such other percentage as the Transferor may establish prior to the time of such proposed transfer) of the value of such interests to be attributable to such transferee’s ownership of Certificates.
6. The Purchaser understands that no subsequent transfer of the Certificates is permitted unless (A) such
transfer is of a Certificate with a Certificate Percentage Interest of at least 5%, (B) it causes its proposed transferee to provide to the Transferor, the Certificate Registrar and the Underwriter a letter substantially in the form of Exhibit C to the
Trust Agreement, as applicable, or such other written statement as the Transferor shall prescribe and (C) the Transferor consents in writing to the proposed transfer, which consent shall be granted unless the Transferor determines that such transfer
would create a risk that the Issuer or the Vehicle Trust would be characterized for U.S. federal or any applicable state tax purposes as an association or a publicly traded partnership, in either case taxable as a corporation; provided, however, that
any attempted transfer that would either cause (1) the number of registered holders of Certificates, or trust certificates of any related issuer, in the aggregate to exceed 99 (provided that, each separate entity will be considered as a single
registered holder, regardless of the number of trust certificates held by such entity) or (2) the number of holders of direct or indirect interests in the Vehicle Trust to exceed 50, shall be a void transfer.
C-3
7. The Purchaser understands that the opinion of counsel to the Issuer that the Issuer is not a publicly
traded partnership taxable as a corporation is dependent in part on the accuracy of the representations in paragraphs 5 and 6 above.
8. The Purchaser is a Person who is either (A)(1) a citizen or resident of the United States or (2) a
corporation or partnership (including any entity treated as a corporation or partnership for U.S. federal income tax purposes) organized in or under the laws of the United States, any state or the District of Columbia or (B) an estate the income of
which is includible in gross income for U.S. federal income tax purposes regardless of source or a trust if the court within the United States is able to exercise primary supervision of the administration of the trust and one or more United States
person(s) (as such term is defined in Section 7701(a)(30) of the Internal Revenue Code of 1986, as amended) have the authority to control all substantial decisions of the trust. It agrees that it will provide a certification of non‑foreign status
signed under penalty of perjury (and such other certifications, representations or Opinions of Counsel as may be requested by the Transferor, the Owner Trustee and the Certificate Registrar).
9. The Purchaser understands that no transfer of a Certificate or any interest therein shall be made unless
each proposed transferee represents and warrants, with respect to itself and each proposed beneficial owner of the Certificate, that it is not a member of an “expanded group” (within the meaning of the Treasury Regulations issued under Section 385 of
the Code) that includes a domestic corporation (as determined for U.S. federal income tax purposes) or a “controlled partnership” (within the meaning of Treasury Regulations issued under Section 385 of the Code) of such expanded group where any member
of such “expanded group” directly or indirectly (through one or more entities that are treated for U.S. federal income tax purposes as partnerships, disregarded entities, or grantor trusts) owns Notes.
10. The Purchaser agrees that if at some time in the future it wishes to transfer or exchange any of the
Certificates, it will not transfer or exchange any of the Certificates unless such transfer or exchange is in accordance with Section 3.04 of the Trust Agreement. The Purchaser understands that any purported transfer of the Certificates (or any
interest therein) in contravention of any of the restrictions and conditions in the Trust Agreement, as applicable, shall be a void, and the purported transferee in such transfer shall not be recognized by the Issuer or any other Person as a
Certificateholder, as the case may, be for any purpose.
11. The Purchaser hereby irrevocably requests you to arrange for definitive Certificates representing the
Certificates purchased by the Purchaser to be registered and delivered promptly after the date hereof as follows:
|
Certificate Percentage Interest
of Definitive Certificate: |
Registered in
Name of: |
Deliver Definitive
Certificate to: |
||
C-4
You and the Owner Trustee are entitled to rely upon this letter and are irrevocably authorized to produce this letter or a copy hereof to any interested party in any administrative or legal proceeding
or official inquiry with respect to the matters covered hereby.
Very truly yours,
By:
Name:
Title:
By:
Name:
Title:
[Medallion Stamp to be affixed here]
C-5
ANNEX 1 TO EXHIBIT C
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees Other Than Registered Investment Companies]
The undersigned (the “Purchaser”) hereby certifies as follows to the addressees of the Rule 144A Representation Letter to which this certification is attached with respect to the Certificate
described therein:
(i) As indicated below, the undersigned is the
President, Chief Financial Officer, Senior Vice President or other executive officer of the Purchaser.
(ii) In connection with purchases by the
Purchaser, the Purchaser is a “qualified institutional buyer” as that term is defined in Rule 144A (“Rule 144A”) under the Securities Act of 1933, as amended, because (i) the Purchaser owned and/or invested on a discretionary basis $__________1
in securities (except for the excluded securities referred to below) as of the end of the Purchaser’s most recent fiscal year (such amount being calculated in accordance with Rule 144A) and (ii) the Purchaser satisfies the criteria in the category
marked below.
| ___ |
Corporation, etc. The Purchaser is a corporation (other than a bank, savings and loan association or similar institution), Massachusetts or similar statutory trust, partnership, or charitable
organization described in Section 501(c)(3) of the Internal Revenue Code of 1986, as amended.
|
| ___ |
Bank. The Purchaser (a) is a national bank or banking institution organized under the laws of any state, territory or the District of Columbia, the business of which is substantially confined to
banking and is supervised by the state or territorial banking commission or similar official or is a foreign bank or equivalent institution, and (b) has an audited net worth of at least $25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached hereto.
|
| ___ |
Savings and Loan. The Purchaser (a) is a savings and loan association, building and loan association, cooperative bank, homestead association or similar institution, which is supervised and examined
by a state or federal authority having supervision over any such institutions or is a foreign savings and loan association or equivalent institution and (b) has an audited net worth of at least $25,000,000 as demonstrated in its latest annual
financial statements, a copy of which is attached hereto.
|
| 1 |
Purchaser must own and/or invest on a discretionary basis at least $100,000,000 in securities unless Purchaser is a dealer, and, in that case, Purchaser must own and/or invest on a discretionary
basis at least $10,000,000 in securities.
|
C-6
| ___ |
Broker‑dealer. The Purchaser is a dealer registered pursuant to Section 15 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”).
|
| ___ |
Insurance Company. The Purchaser is an insurance company whose primary and predominant business activity is the writing of insurance or the reinsuring of risks underwritten by insurance companies and
which is subject to supervision by the insurance commissioner or a similar official or agency of a state, territory or the District of Columbia.
|
| ___ |
State or Local Plan. The Purchaser is a plan established and maintained by a state, its political subdivisions, or any agency or instrumentality of the state or its political subdivisions, for the
benefit of its employees.
|
| ___ |
ERISA Plan. The Purchaser is an employee benefit plan within the meaning of Title I of the Employee Retirement Income Security Act of 1974.
|
| ___ |
Investment Advisor. The Purchaser is an investment advisor registered under the Investment Advisors Act of 1940.
|
| ___ |
Small Business Investment Company. The Purchaser is a small business investment company licensed by the U.S. Small Business Administration under Section 301(c) or (d) of the Small Business Investment
Act of 1958.
|
| ___ |
Business Development Company. The Purchaser is a business development company as defined in Section 202(a)(22) of the Investment Advisors Act of 1940.
|
| ___ |
Trust Fund. The Purchaser is a trust fund whose trustee is a bank or trust company and whose participants are exclusively state or local Plans or ERISA Plans as defined above, and no participant of
the Purchaser is an individual retirement account or an H.R. 10 (Xxxxx) plan.
|
(iii) The term “securities” as used herein
does not include (i) securities of issuers that are affiliated with the Purchaser, (ii) securities that are part of an unsold allotment to or subscription by the Purchaser, if the Purchaser is a dealer, (iii) bank deposit notes and certificates of
deposit, (iv) loan participations, (v) repurchase agreements, (vi) securities owned but subject to a repurchase agreement and (vii) currency, interest rate and commodity swaps.
(iv) For purposes of determining the aggregate
amount of securities owned and/or invested on a discretionary basis by the Purchaser, the Purchaser used the cost of such securities to the Purchaser and did not include any of the securities referred to in the preceding paragraph, except (i) where the
Purchaser reports its securities holdings in its financial statements on the basis of their market value, and (ii) no current information with respect to the cost of those securities has been published. If clause (ii) in the preceding sentence
applies, the securities may be valued at their market value. Further,
C-7
in determining such aggregate amount, the Purchaser may have included securities owned by subsidiaries of the Purchaser, but only if such subsidiaries are consolidated with the Purchaser in its
financial statements prepared in accordance with generally accepted accounting principles and if the investments of such subsidiaries are managed under the Purchaser’s direction. However, such securities were not included if the Purchaser is a
majority‑owned, consolidated subsidiary of another enterprise and the Purchaser is not itself a reporting company under the Exchange Act.
(v) The Purchaser acknowledges that it is
familiar with Rule 144A and understands that the seller to it and other parties related to the Certificates are relying and will continue to rely on the statements made herein because one or more sales to the Purchaser may be in reliance on Rule 144A.
(vi) Until the date of purchase of the
Certificates, the Purchaser will notify each of the parties to which this certification is made of any changes in the information and conclusions herein. Until such notice is given, the Purchaser’s purchase of the Certificates will constitute a
reaffirmation of this certification as of the date of such purchase. In addition, if the Purchaser is a bank or savings and loan is provided above, the Purchaser agrees that it will furnish to such parties updated annual financial statements promptly
after they become available.
________________________________
Name of Purchaser
Name of Purchaser
By: _________________________
Name:
Title:
Name:
Title:
Dated:
C-8
ANNEX 2 TO EXHIBIT C
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees That are Registered Investment Companies]
The undersigned (the “Purchaser”) hereby certifies as follows to the addressees of the Rule 144A Representation Letter to which this certification is attached with respect to the Certificate
described therein:
(i) As indicated below, the undersigned is the
President, Chief Financial Officer or Senior Vice President of the Purchaser or, if the Purchaser is a “qualified institutional buyer” as that term is defined in Rule 144A (“Rule 144A”) under the Securities Act of 1933, as amended, because the
Purchaser is part of a Family of Investment Companies (as defined below), is such an officer of the Adviser.
(ii) In connection with purchases by the
Purchaser, the Purchaser is a “qualified institutional buyer” as defined in Rule 144A because (i) the Purchaser is an investment company registered under the Investment Company Act of 1940, as amended, and (ii) as marked below, the Purchaser alone, or
the Purchaser’s Family of Investment Companies, owned at least $100,000,000 in securities (other than the excluded securities referred to below) as of the end of the Purchaser’s most recent fiscal year. For purposes of determining the amount of
securities owned by the Purchaser or the Purchaser’s Family of Investment Companies, the cost of such securities was used, except (i) where the Purchaser or the Purchaser’s Family of Investment Companies reports its securities holdings in its financial
statements on the basis of their market value, and (ii) no current information with respect to the cost of those securities has been published. If clause (ii) in the preceding sentence applies, the securities may be valued at market.
| ___ |
The Purchaser owned $__________ in securities (other than the excluded securities referred to below) as of the end of the Purchaser’s most recent fiscal year (such amount being calculated in accordance
with Rule 144A).
|
| ___ |
The Purchaser is part of a Family of Investment Companies which owned in the aggregate $__________ in securities (other than the excluded securities referred to below) as of the end of the Purchaser’s
most recent fiscal year (such amount being calculated in accordance with Rule 144A).
|
(iii) The term “Family of Investment
Companies” as used herein means two or more registered investment companies (or series thereof) that have the same investment adviser or investment advisers that are affiliated (by virtue of being majority owned subsidiaries of the same parent or
because one investment adviser is a majority owned subsidiary of the other).
(iv) The term “securities” as used herein does
not include (i) securities of issuers that are affiliated with the Purchaser or are part of the Purchaser’s Family of Investment Companies, (ii) bank deposit notes and certificates of deposit, (iii) loan
C-9
participations, (iv) repurchase agreements, (v) securities owned but subject to a repurchase agreement and (vi) currency, interest rate and commodity swaps.
(v) The Purchaser is familiar with Rule 144A
and understands that the parties listed in the Rule 144A Representation Letter to which this certification relates are relying and will continue to rely on the statements made herein because one or more sales to the Purchaser will be in reliance on
Rule 144A. In addition, the Purchaser will only purchase for the Purchaser’s own account.
(vi) Until the date of purchase of the
Transferor Certificate, the undersigned will notify the parties listed in the Rule 144A Transferee Certificate to which this certification relates of any changes in the information and conclusions herein. Until such notice is given, the Purchaser’s
purchase of the Certificates will constitute a reaffirmation of this certification by the undersigned as of the date of such purchase.
Name of Purchaser or Advisor
By: ____________________________
Name:
Title:
IF AN ADVISOR:
______________________________
Name of Purchaser or Advisor
Dated: ____________________________
C-10
EXHIBIT D
FORM OF INVESTMENT LETTER
_______________,
___
Seller
____________________________________
____________________________________
____________________________________
Wilmington Trust, National Association,
as Owner Trustee
Xxxxxx Square North, 0000 Xxxxx Xxxxxx Xxxxxx
as Owner Trustee
Xxxxxx Square North, 0000 Xxxxx Xxxxxx Xxxxxx
Wilmington, Delaware 19890-1600
Attn: Corporate Trust Administration
Attn: Corporate Trust Administration
U.S. Bank Trust Company, National Association,
as Certificate Registrar
000 Xxxx Xxxxxxxx Xxxxxx
as Certificate Registrar
000 Xxxx Xxxxxxxx Xxxxxx
St. Xxxx, Minnesota 55107
Barclays Capital Inc.,
as Representative
000 0xx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxx Xxxx, Xxx Xxxx 00000
BMW Auto Leasing LLC
c/o BMW Financial Services NA, LLC,
its Managing Member
000 Xxxxxxxx Xxxxx Xxxx
Xxxxxxxxx Xxxx, Xxx Xxxxxx 00000
c/o BMW Financial Services NA, LLC,
its Managing Member
000 Xxxxxxxx Xxxxx Xxxx
Xxxxxxxxx Xxxx, Xxx Xxxxxx 00000
| Re: |
BMW Vehicle Lease Trust 2024-1
Asset Backed Certificates |
Dear Sirs:
In connection with our acquisition of the above-referenced Asset Backed Certificates (the “Certificates”) we certify that (a) we understand that the Certificates are not being registered under the Securities Act
of 1933, as amended (the “Act”), or any state securities laws and are being transferred to us in a transaction that is exempt from the registration requirements of the Act and any such laws, (b) we are an “accredited investor,” as defined in
Regulation D under the Act, and have such knowledge and experience in financial and business matters that we are capable of evaluating the merits and risks of investments in the Certificates, (c) we have had the opportunity to ask questions of and
receive answers from the Seller concerning the purchase of
D-1
the Certificates and all matters relating thereto or any additional information deemed necessary to our decision to purchase the Certificates, (d) we are acquiring the Certificates for investment for
our own account and not with a view to any distribution of such Certificates (but without prejudice to our right at all times to sell or otherwise dispose of the Certificates in accordance with clause (g) below), (e) we have not offered or sold any
Certificates to, or solicited offers to buy any Certificates from, any person, or otherwise approached or negotiated with any person with respect thereto, or taken any other action that would result in a violation of Section 5 of the Act or any state
securities laws, (f) we are not a Benefit Plan and (g) we will not sell, or otherwise dispose of any Certificates unless (i) such sale, transfer or other disposition is made pursuant to an effective registration statement under the Act and in
compliance with any state securities laws or is exempt from such registration requirements and, if requested, we will at our expense provide an Opinion of Counsel satisfactory to the addressees of this certificate that such sale, transfer or other
disposition may be made pursuant to an exemption from the Act, (ii) the purchaser or transferee of such Certificate has executed and delivered to you a certificate to substantially the same effect as this certificate and (iii) the purchaser or
transferee has otherwise complied with any conditions for transfer set forth in the Amended and Restated Trust Agreement dated as of February 14, 2024, between BMW Auto Leasing LLC, as transferor and Wilmington Trust, National Association, as Owner
Trustee.
|
Very truly yours,
|
||
|
[NAME OF TRANSFEREE]
|
||
|
By
|
||
|
Authorized Officer
|
||
D-2
