EXHIBIT 4.1
INDENTURE
between
BMW VEHICLE OWNER TRUST 2006-A,
as Issuer
and
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Indenture Trustee
Dated as of September 1, 2006
TABLE OF CONTENTS
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Page
ARTICLE I. DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions............................................................2
SECTION 1.02. Other Definitional Provisions.........................................10
SECTION 1.03. Incorporation by Reference of Trust Indenture Act.....................10
ARTICLE II. THE NOTES
SECTION 2.01. Form..................................................................11
SECTION 2.02. Execution, Authentication and Delivery................................11
SECTION 2.03. Temporary Notes.......................................................12
SECTION 2.04. Registration; Registration of Transfer and Exchange...................12
SECTION 2.05. [Reserved]............................................................14
SECTION 2.06. Mutilated, Destroyed, Lost or Stolen Notes............................14
SECTION 2.07. Persons Deemed Owners.................................................15
SECTION 2.08. Payment of Principal and Interest; Defaulted Interest.................15
SECTION 2.09. Cancellation..........................................................16
SECTION 2.10. Book-Entry Notes......................................................17
SECTION 2.11. Notices to Clearing Agency............................................18
SECTION 2.12. Definitive Notes......................................................18
SECTION 2.13. Tax Treatment.........................................................18
ARTICLE III. COVENANTS
SECTION 3.01. Payment of Principal and Interest.....................................18
SECTION 3.02. Maintenance of Office or Agency.......................................19
SECTION 3.03. Money for Payments To Be Held in Trust................................19
SECTION 3.04. Existence.............................................................21
SECTION 3.05. Protection of Trust Estate............................................21
SECTION 3.06. Opinions as to Trust Estate...........................................21
SECTION 3.07. Performance of Obligations; Servicing of Receivables..................22
SECTION 3.08. Negative Covenants....................................................23
SECTION 3.09. Annual Statement and Assessment as to Compliance......................24
SECTION 3.10. Issuer May Consolidate, etc., Only on Certain Terms...................25
SECTION 3.11. Successor or Transferee...............................................27
SECTION 3.12. No Other Business.....................................................27
SECTION 3.13. No Borrowing..........................................................27
SECTION 3.14. Servicer's Obligations................................................27
SECTION 3.15. Guarantees, Loans, Advances and Other Liabilities.....................27
SECTION 3.16. Capital Expenditures..................................................28
SECTION 3.17. Removal of Administrator..............................................28
SECTION 3.18. Restricted Payments...................................................28
SECTION 3.19. Notice of Events of Default...........................................28
SECTION 3.20. Further Instruments and Acts..........................................28
ARTICLE IV. SATISFACTION AND DISCHARGE
SECTION 4.01. Satisfaction and Discharge of Indenture...............................28
SECTION 4.02. Application of Trust Money............................................30
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TABLE OF CONTENTS
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(Continued)
SECTION 4.03. Repayment of Moneys Held by Paying Agent..............................30
SECTION 4.04. Release of Collateral.................................................30
ARTICLE V. REMEDIES
SECTION 5.01. Events of Default.....................................................30
SECTION 5.02. Acceleration of Maturity; Rescission and Annulment....................32
SECTION 5.03. Collection of Indebtedness and Suits for Enforcement by Indenture
Trustee...............................................................33
SECTION 5.04. Remedies; Priorities..................................................35
SECTION 5.05. Optional Preservation of the Receivables..............................38
SECTION 5.06. Limitation of Suits...................................................38
SECTION 5.07. Unconditional Rights of Noteholders To Receive
Principal and Interest................................................39
SECTION 5.08. Restoration of Rights and Remedies....................................39
SECTION 5.09. Rights and Remedies Cumulative........................................40
SECTION 5.10. Delay or Omission Not a Waiver........................................40
SECTION 5.11. Control by the Controlling Class of Noteholders.......................40
SECTION 5.12. Waiver of Past Defaults...............................................41
SECTION 5.13. Undertaking for Costs.................................................41
SECTION 5.14. Waiver of Stay or Extension Laws......................................41
SECTION 5.15. Action on Notes.......................................................42
SECTION 5.16. Performance and Enforcement of Certain Obligations....................42
ARTICLE VI. THE INDENTURE TRUSTEE
SECTION 6.01. Duties of Indenture Trustee...........................................42
SECTION 6.02. Rights of Indenture Trustee...........................................44
SECTION 6.03. Individual Rights of Indenture Trustee................................46
SECTION 6.04. Indenture Trustee's Disclaimer........................................46
SECTION 6.05. Notice of Defaults....................................................46
SECTION 6.06. Reports by Indenture Trustee to Holders...............................46
SECTION 6.07. Compensation and Indemnity............................................46
SECTION 6.08. Replacement of Indenture Trustee......................................47
SECTION 6.09. Successor Indenture Trustee by Merger.................................48
SECTION 6.10. Appointment of Co-Indenture Trustee or Separate Indenture Trustee.....48
SECTION 6.11. Eligibility; Disqualification.........................................50
SECTION 6.12. [Reserved]............................................................50
SECTION 6.13. Preferential Collection of Claims Against Issuer......................50
SECTION 6.14. Waiver of Setoffs.....................................................50
SECTION 6.15. Licenses..............................................................50
ARTICLE VII. NOTEHOLDERS' LISTS AND REPORTS
SECTION 7.01. Issuer To Furnish Indenture Trustee Names and Addresses of
Noteholders...........................................................50
SECTION 7.02. Preservation of Information; Communications to Noteholders............51
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TABLE OF CONTENTS
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(Continued)
SECTION 7.03. Reports by Issuer.....................................................51
SECTION 7.04. Reports by Indenture Trustee..........................................52
ARTICLE VIII. ACCOUNTS, DISBURSEMENTS AND RELEASES
SECTION 8.01. Collection of Money...................................................52
SECTION 8.02. Trust Accounts........................................................52
SECTION 8.03. General Provisions Regarding Accounts.................................55
SECTION 8.04. Release of Trust Estate...............................................55
SECTION 8.05. Opinion of Counsel....................................................55
ARTICLE IX. SUPPLEMENTAL INDENTURES
SECTION 9.01. Supplemental Indentures Without Consent of Noteholders................56
SECTION 9.02. Supplemental Indentures with Consent of Noteholders...................57
SECTION 9.03. Execution of Supplemental Indentures..................................59
SECTION 9.04. Effect of Supplemental Indenture......................................59
SECTION 9.05. Reference in Notes to Supplemental Indentures.........................59
SECTION 9.06. Conformity with Trust Indenture Act...................................59
ARTICLE X. REDEMPTION OF NOTES
SECTION 10.01. Redemption............................................................60
SECTION 10.02. Form of Redemption Notice.............................................60
SECTION 10.03. Notes Payable on Redemption Date......................................60
ARTICLE XI. MISCELLANEOUS
SECTION 11.01. Compliance Certificates and Opinions, etc.............................61
SECTION 11.02. Form of Documents Delivered to Indenture Trustee......................63
SECTION 11.03. Acts of Noteholders...................................................63
SECTION 11.04. Notices, etc., to Indenture Trustee, Issuer and Rating Agencies.......64
SECTION 11.05. Notices to Noteholders; Waiver........................................65
SECTION 11.06. Alternate Payment and Notice Provisions...............................65
SECTION 11.07. Effect of Headings and Table of Contents..............................65
SECTION 11.08. Successors and Assigns................................................65
SECTION 11.09. Separability..........................................................66
SECTION 11.10. Benefits of Indenture.................................................66
SECTION 11.11. Legal Holidays........................................................66
SECTION 11.12. Governing Law.........................................................66
SECTION 11.13. Counterparts..........................................................66
SECTION 11.14. Recording of Indenture................................................66
SECTION 11.15. Trust Obligation......................................................66
SECTION 11.16. No Petition...........................................................67
SECTION 11.17. Inspection............................................................67
SECTION 11.18. Conflict with Trust Indenture Act.....................................67
SECTION 11.19. Limitation of Liability...............................................67
SECTION 11.20. Intent of the Parties; Reasonableness.................................68
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TABLE OF CONTENTS
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(Continued)
EXHIBITS
SCHEDULE A Schedule of Receivables
EXHIBIT A-1 Form of Class A-1 Note
EXHIBIT A-2 Form of Class A-2 Notes
EXHIBIT A-3 Form of Class A-3 Notes
EXHIBIT A-4 Form of Class A-4 Note
EXHIBIT A-5 Form of Class B Note
EXHIBIT B Form of the Note Depository Agreement
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THIS INDENTURE, dated as of September 1, 2006, is between BMW
VEHICLE OWNER TRUST 2006-A, a Delaware statutory trust (the "Issuer"), and
DEUTSCHE BANK TRUST COMPANY AMERICAS, a New York banking corporation, as trustee
and not in its individual capacity (the "Indenture Trustee").
Each party agrees as follows for the benefit of the other
party and for the equal and ratable benefit of the Holders of the Issuer's
5.36344% Asset Backed Notes, Class A-1 (the "Class A-1 Notes"), 5.30% Asset
Backed Notes, Class A-2 (the "Class A-2 Notes"), 5.13% Asset Backed Notes, Class
A-3 (the "Class A-3 Notes"), 5.07% Asset Backed Notes, Class A-4 (the "Class A-4
Notes") and 5.19% Asset Backed Notes, Class B (the "Class B Notes" and, together
with the Class A-1 Notes, Class A-2 Notes, Class A-3 Notes and the Class A-4
Notes, the "Notes"):
GRANTING CLAUSE
The Issuer hereby Grants to the Indenture Trustee at the
Closing Date, as Indenture Trustee for the benefit of the Holders of the Notes,
all of the Issuer's right, title and interest in and to (a) the Receivables and
all moneys received thereon after the close of business on August 31, 2006; (b)
the security interests in the Financed Vehicles and any accessions thereto
granted by Obligors pursuant to the Receivables and any other interest of the
Issuer in such Financed Vehicles; (c) any Liquidation Proceeds and any other
proceeds with respect to the Receivables from claims on any physical damage,
credit life or disability insurance policies covering Financed Vehicles or
Obligors, including any vendor's single interest or other collateral protection
insurance policy; (d) any property that shall have secured a Receivable and that
shall have been acquired by or on behalf of the Seller, the Servicer, or the
Issuer; (e) all documents and other items contained in the Receivable Files; (f)
the Trust Accounts and all funds on deposit from time to time in the Trust
Accounts and in all investments and proceeds thereof (including all income
thereon); (g) the Issuer's rights and benefits, but none of its obligations,
under the Sale and Servicing Agreement (including the Issuer's right to cause
the Seller, or the Servicer, as the case may be, to repurchase Receivables from
the Issuer under the circumstances described therein); (h) the Issuer's rights
and benefits under the Receivables Purchase Agreement, including the
representations and warranties and the cure and repurchase obligations of the
Seller under the Receivables Purchase Agreement; and (i) all present and future
claims, demands, causes of action and choses in action in respect of any or all
of the foregoing and all payments on or under and all proceeds of every kind and
nature whatsoever in respect of any or all of the foregoing, including all
proceeds of the conversion thereof, voluntary or involuntary, into cash or other
liquid property, all cash proceeds, accounts, accounts receivable, notes,
drafts, acceptances, chattel paper, checks, deposit accounts, insurance
proceeds, condemnation awards, rights to payment of any and every kind and other
forms of obligations and receivables, instruments and other property that at any
time constitute all or part of or are included in the proceeds of any of the
foregoing (collectively, the "Collateral").
The foregoing Grant is made in trust to secure the payment of
principal of and interest on, and any other amounts owing in respect of, the
Notes, equally and ratably without prejudice, priority or distinction, and to
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secure compliance with the provisions of this Indenture, all as provided in this
Indenture.
The Indenture Trustee, on behalf of the Holders of the Notes,
acknowledges such Grant, accepts the trusts under this Indenture in accordance
with the provisions of this Indenture and agrees to perform its duties required
in this Indenture to the best of its ability to the end that the interests of
the Holders of the Notes may be adequately and effectively protected.
ARTICLE I.
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.
(a) Definitions. Except as otherwise specified herein or as
the context may otherwise require, the following terms have the respective
meanings set forth below for all purposes of this Indenture.
"Act" has the meaning specified in Section 11.03(a).
"Administration Agreement" means the Owner Trust
Administration Agreement, dated as of September 1, 2006, among the
Administrator, the Issuer and the Indenture Trustee.
"Administrator" means BMW FS, or any successor Administrator
under the Administration Agreement.
"Affiliate" means, with respect to any specified Person, any
other Person controlling or controlled by or under common control with such
specified Person. For the purposes of this definition, "control" when used with
respect to any Person means the power to direct the management and policies of
such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Authorized Officer" means, with respect to the Issuer, any
officer of the Owner Trustee who is authorized to act for the Owner Trustee in
matters relating to the Issuer and who is identified on the list of Authorized
Officers delivered by the Owner Trustee to the Indenture Trustee on the Closing
Date (as such list may be modified or supplemented from time to time thereafter)
and, so long as the Administration Agreement is in effect, any Vice President or
more senior officer of the Administrator who is authorized to act for the
Administrator in matters relating to the Issuer and to be acted upon by the
Administrator pursuant to the Administration Agreement and who is identified on
the list of Authorized Officers delivered by the Administrator to the Indenture
Trustee on the Closing Date (as such list may be modified or supplemented from
time to time thereafter).
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"BMW FS" means BMW Financial Services NA, LLC, a Delaware
limited liability company, and its successors and assigns.
"Book-Entry Notes" means a beneficial interest in the Notes,
ownership and transfers of which shall be made through book entries by a
Clearing Agency as described in Section 2.10.
"Business Day" shall have the meaning assigned thereto in the
Sale and Servicing Agreement.
"Class A Notes" means collectively the Class A-1 Notes, the
Class A-2 Notes, the Class A-3 Notes and the Class A-4 Notes, as the context may
require.
"Class A-1 Notes" means the 5.36344% Asset Backed Notes, Class
A-1, substantially in the form of Exhibit A-1.
"Class A-1 Rate" means 5.36344% per annum, computed on the
basis of the actual number of days elapsed in the related Interest Period.
"Class A-2 Notes" means the 5.30% Asset Backed Notes, Class
A-2, substantially in the form of Exhibit A-2.
"Class A-2 Rate" means a 5.30% per annum computed on the basis
of a 360-day year consisting of twelve 30-day months.
"Class A-3 Notes" means the 5.13% Asset Backed Notes, Class
A-3, substantially in the form of Exhibit A-3.
"Class A-3 Rate" means 5.13% per annum, computed on the basis
of a 360-day year consisting of twelve 30-day months.
"Class A-4 Notes" means the 5.07% Asset Backed Notes, Class
A-4, substantially in the form of Exhibit A-4.
"Class A-4 Rate" means 5.07% per annum, computed on the basis
of a 360-day year consisting of twelve 30-day months.
"Class B Notes" means the 5.19% Asset Backed Notes, Class B,
substantially in the form of Exhibit A-5.
"Class B Rate" means 5.19% per annum, computed on the basis of
a 360-day year consisting of twelve 30-day months.
"Clearing Agency" means an organization registered as a
"clearing agency" pursuant to Section 17A of the Exchange Act.
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"Clearing Agency Participant" means a broker, dealer, bank,
other financial institution or other Person for whom from time to time a
Clearing Agency effects book-entry transfers and pledges of securities deposited
with the Clearing Agency.
"Closing Date" means September 22, 2006.
"Code" means the Internal Revenue Code of 1986, as amended
from time to time, and Treasury Regulations promulgated thereunder.
"Collateral" has the meaning specified in the Granting Clause
of this Indenture.
"Controlling Class" means with respect to any Notes
Outstanding, the Class A Notes (voting together as a single class) so long as
any Class A Notes are Outstanding, and thereafter the Class B Notes so long as
any Class B Notes are Outstanding.
"Corporate Trust Office" means the principal office of the
Indenture Trustee at which at any particular time its corporate trust business
is administered, which office at the date of execution of this Indenture is
located at (i) solely for the purposes of the transfer or surrender of
definitive Notes, (a) by mail-DB Services Tennessee, Inc., ▇.▇. ▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Corporate Trust and Agency Services, Bond
Transfer Unit-BMW 2006-A and (b) by overnight courier-DB Services Tennessee, ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: Corporate Trust and Agency
Services, Bond Transfer Unit-BMW 2006-A, or (ii) for all other purposes, ▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: Structured Finance Services-BMW 2006-A,
or at such other address as the Indenture Trustee may designate from time to
time by notice to the Noteholders and the Issuer, or the principal corporate
trust office of any successor Indenture Trustee at the address designated by
such successor Indenture Trustee by notice to the Noteholders and the Issuer.
"Default" means any occurrence that is, or with notice or the
lapse of time or both would become, an Event of Default.
"Definitive Notes" has the meaning specified in Section 2.10.
"Deposit Date" means the Business Day prior to each Payment
Date.
"Depositor" means BMW FS Securities LLC and its successors and
assigns.
"Event of Default" has the meaning specified in Section 5.01.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Executive Officer" means, with respect to any corporation,
the Chief Executive Officer, Chief Operating Officer, Chief Financial Officer,
President, any Executive Vice President, any Senior Vice President, any Vice
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President, the Secretary, the Controller or the Treasurer of such corporation;
and with respect to any partnership, any general partner thereof.
"Final Scheduled Payment Date" means the Class A-1 Final
Scheduled Payment Date, the Class A-2 Final Scheduled Payment Date, the Class
A-3 Final Scheduled Payment Date, the Class A-4 Final Scheduled Payment Date, or
the Class B Final Scheduled Payment Date, as applicable, as those terms are
defined in the Sale and Servicing Agreement.
"Grant" means mortgage, pledge, bargain, sell, warrant,
alienate, remise, release, convey, assign, transfer, create, and ▇▇▇▇▇ ▇ ▇▇▇▇
upon and a security interest in and a right of set-off against, deposit, set
over and confirm pursuant to this Indenture. A Grant of the Collateral or of any
other agreement or instrument shall include all rights, powers and options (but
none of the obligations) of the granting party thereunder, including the
immediate and continuing right to claim for, collect, receive and give receipt
for principal and interest payments in respect of the Collateral and all other
moneys payable thereunder, to give and receive notices and other communications,
to make waivers or other agreements, to exercise all rights and options, to
bring Proceedings in the name of the granting party or otherwise, and generally
to do and receive anything that the granting party is or may be entitled to do
or receive thereunder or with respect thereto.
"Holder" or "Noteholder" means a Person in whose name a Note
is registered on the Note Register.
"Indenture Trustee" means Deutsche Bank Trust Company
Americas, a New York banking corporation, not in its individual capacity, but as
Indenture Trustee under this Indenture, or any successor Indenture Trustee under
this Indenture.
"Independent" means, when used with respect to any specified
Person, that such Person (a) is in fact independent of the Issuer, any other
obligor on the Notes, the Seller and any Affiliate of any of the foregoing
Persons, (b) does not have any direct financial interest or any material
indirect financial interest in the Issuer, any such other obligor, the Seller or
any Affiliate of any of the foregoing Persons and (c) is not connected with the
Issuer, any such other obligor, the Seller or any Affiliate of any of the
foregoing Persons as an officer, employee, promoter, underwriter, trustee,
partner, director or person performing similar functions.
"Independent Certificate" means a certificate or opinion to be
delivered to the Indenture Trustee under the circumstances described in, and
otherwise complying with, the applicable requirements of Section 11.01, made by
an Independent appraiser or other expert appointed by an Issuer Order and
approved by the Indenture Trustee in the exercise of reasonable care, and such
opinion or certificate shall state that the signer has read the definition of
"Independent" in this Indenture and that the signer is Independent within the
meaning thereof.
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"Interest Rate" means the Class A-1 Rate, the Class A-2 Rate,
the Class A-3 Rate, the Class A-4 Rate or the Class B Rate, as the context may
require.
"Issuer" means BMW Vehicle Owner Trust 2006-A until a
successor replaces it and, thereafter, means the successor and, for purposes of
any provision contained herein and required by the TIA, each other obligor on
the Notes.
"Issuer Order" or "Issuer Request" means a written order or
request signed in the name of the Issuer by any one of its Authorized Officers
and delivered to the Indenture Trustee.
"Note" means a Class A Note or a Class B Note, as the context
may require.
"Note Depository Agreement" means the agreement dated
September 22, 2006, among the Issuer, the Administrator, the Indenture Trustee
and The Depository Trust Company, as the initial Clearing Agency, relating to
the Class A Notes and the Class B Notes, substantially in the form of Exhibit B.
"Note Owner" means, with respect to a Book-Entry Note, the
Person who is the beneficial owner of such Book-Entry Note, as reflected on the
books of the Clearing Agency or on the books of a Person maintaining an account
with such Clearing Agency (directly as a Clearing Agency Participant or as an
indirect participant, in each case in accordance with the rules of such Clearing
Agency).
"Note Register" and "Note Registrar" have the respective
meanings specified in Section 2.04.
"Officer's Certificate" means a certificate signed by any
Authorized Officer of the Issuer, under the circumstances described in, and
otherwise complying with, the applicable requirements of Section 11.01, and
delivered to the Indenture Trustee. Unless otherwise specified, any reference in
this Indenture to an Officer's Certificate shall be to an Officer's Certificate
of any Authorized Officer of the Issuer.
"Opinion of Counsel" means one or more written opinions of
counsel who may, except as otherwise expressly provided in this Indenture, be an
employee of or counsel to the Issuer and who shall be satisfactory to the
Indenture Trustee, and which opinion or opinions shall be addressed to the
Indenture Trustee, shall comply with any applicable requirements of Section
11.01 and shall be in form and substance satisfactory to the Indenture Trustee.
"Outstanding" means, as of any date of determination, all
Notes theretofore authenticated and delivered under this Indenture except:
(i) Notes theretofore cancelled by the Note Registrar
or delivered to the Note Registrar for cancellation;
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(ii) Notes or portions thereof the payment for which
money in the necessary amount has been theretofore deposited
with the Indenture Trustee or any Paying Agent in trust for
the Holders of such Notes (provided, however, that if such
Notes are to be redeemed, notice of such redemption has been
duly given pursuant to this Indenture or provision for such
notice has been made, satisfactory to the Indenture Trustee);
and
(iii) Notes in exchange for or in lieu of which other
Notes have been authenticated and delivered pursuant to this
Indenture unless proof satisfactory to the Indenture Trustee
is presented that any such Notes are held by a bona fide
purchaser;
provided, however, that in determining whether the Holders of the requisite
Outstanding Amount of the Notes have given any request, demand, authorization,
direction, notice, consent or waiver hereunder or under any Basic Document,
Notes owned by the Issuer, any other obligor on the Notes, the Depositor, the
Seller or any Affiliate of any of the foregoing Persons shall be disregarded and
deemed not to be Outstanding, except that, in determining whether the Indenture
Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Notes that a
Responsible Officer of the Indenture Trustee knows to be so owned shall be so
disregarded. Notes so owned that have been pledged in good faith may be regarded
as Outstanding if the pledgee establishes to the satisfaction of the Indenture
Trustee the pledgee's right so to act with respect to such Notes and that the
pledgee is not the Issuer, any other obligor on the Notes, the Depositor, the
Seller or any Affiliate of any of the foregoing Persons.
"Outstanding Amount" means, as of any date of determination
and as to any Notes, the aggregate principal amount of such Notes Outstanding as
of such date of determination.
"Owner Trustee" means Wilmington Trust Company, not in its
individual capacity but solely as Owner Trustee under the Trust Agreement, or
any successor Owner Trustee under the Trust Agreement.
"Paying Agent" means the Indenture Trustee or any other Person
that meets the eligibility standards for the Indenture Trustee specified in
Section 6.11 and is authorized by the Issuer to make payments to and
distributions from the Collection Account, the Note Distribution Account and the
Reserve Account, including payments of principal of or interest on the Notes on
behalf of the Issuer.
"Payment Date" means the twenty-fifth day of each month, or if
any such date is not a Business Day, the next succeeding Business Day,
commencing October 25, 2006.
"Person" means any individual, corporation, estate,
partnership, limited liability company, joint venture, association, joint stock
company, trust or statutory trust (including any beneficiary thereof),
7
unincorporated organization or government or any agency or political subdivision
thereof.
"Predecessor Note" means, with respect to any particular Note,
every previous Note evidencing all or a portion of the same debt as that
evidenced by such particular Note; and, for the purpose of this definition, any
Note authenticated and delivered under Section 2.06 in lieu of a mutilated,
lost, destroyed or stolen Note shall be deemed to evidence the same debt as the
mutilated, lost, destroyed or stolen Note.
"Proceeding" means any suit in equity, action at law or other
judicial or administrative proceeding.
"Receivables" means any contract listed on Schedule A (which
Schedule may be in the form of microfiche).
"Receivables Purchase Agreement" means the Receivables
Purchase Agreement, dated as of September 1, 2006, among BMW FS, as Seller, and
BMW FS Securities LLC, as Depositor.
"Record Date" means, with respect to a Payment Date or
Redemption Date, the close of business on the day immediately preceding such
Payment Date or Redemption Date.
"Redemption Date" means, as the context requires, in the case
of a redemption of the Notes pursuant to Section 10.01, the Payment Date
specified by the Servicer or the Issuer pursuant to Section 10.01.
"Redemption Price" means in the case of a redemption of the
Notes pursuant to Section 10.01, an amount equal to the unpaid principal amount
of the Notes redeemed plus accrued and unpaid interest thereon at the Interest
Rate for each Note being so redeemed on such Redemption Date.
"Registered Holder" means the Person in whose name a Note is
registered on the Note Register on the applicable Record Date.
"Regulation AB" means Subpart 229.1100 - Asset Backed
Securities (Regulation AB), 17 C.F.R. ss.ss.229.1100-229.1123, 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 release (Asset-Backed
Securities, Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan.
7, 2005)) or by the staff of the Commission, or as may be provided by the
Commission or its staff from time to time.
"Responsible Officer" means, with respect to the Indenture
Trustee or Owner Trustee, as applicable, any officer within the Corporate Trust
Office of the Indenture Trustee or the Owner Trustee, including any Vice
President, Assistant Vice President, Assistant Treasurer, Assistant Secretary or
any other officer of the Indenture Trustee or the Owner Trustee customarily
8
performing functions similar to those performed by any of the above designated
officers and also, with respect to a particular matter, any other officer to
whom such matter is referred because of such officer's knowledge of and
familiarity with the particular subject, in each case having direct
responsibility for the administration of the Basic Documents.
"Sale and Servicing Agreement" means the Sale and Servicing
Agreement, dated as of September 1, 2006, among the Issuer, the Depositor, BMW
FS, as Seller, Servicer, Custodian and Administrator, and the Indenture Trustee.
"Schedule of Receivables" means the list of Receivables set
forth in Schedule A (which Schedule may be in the form of microfiche).
"Securities Act" means the Securities Act of 1933, as amended.
"Seller" means BMW FS, in its capacity as seller under the
Receivables Purchase Agreement and the Sale and Servicing Agreement, and its
successor in interest.
"Servicer" means BMW FS, in its capacity as servicer under the
Sale and Servicing Agreement, and any Successor Servicer thereunder.
"Servicing Criteria" means the "servicing criteria" set forth
in Item 1122(d) of Regulation AB, as such may be amended from time to time.
"Sponsor" means BMW FS, in its capacity as sponsor under the
Sale and Servicing Agreement, and any successor Sponsor thereunder.
"State" means any one of the 50 states of the United States of
America, or the District of Columbia.
"Subcontractor": Any vendor, subcontractor or other Person
that is not responsible for the overall servicing (as "servicing" is commonly
understood by participants in the asset-backed securities market) of the
Receivables but performs one or more discrete functions identified in Item
1122(d) of Regulation AB with respect to the Receivables under the direction or
authority of the Servicer or a Subservicer.
"Subservicer": Any Person that services Receivables on behalf
of the Servicer and is responsible for the performance (whether directly or
through Subservicers or Subcontractors) of a substantial portion of the material
servicing functions required to be performed by the Servicer under this
Agreement that are identified in Item 1122(d) of Regulation AB.
"Successor Servicer" has the meaning specified in Section
3.07(f)
"Trust Agreement" means the Amended and Restated Trust
Agreement, dated as of September 1, 2006, among BMW FS Securities LLC, as
Depositor, and Wilmington Trust Company, as Owner Trustee.
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"Trust Estate" means all money, instruments, rights and other
property that are subject or intended to be subject to the lien and security
interest of this Indenture for the benefit of the Noteholders (including,
without limitation, all property and interests Granted to the Indenture
Trustee), including all proceeds thereof.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act
of 1939 as in force on the date hereof, unless otherwise specifically provided.
"UCC" means, unless the context otherwise requires, the Uniform Commercial Code
as in effect in the relevant jurisdiction, as amended from time to time.
(b) Except as otherwise specified herein or as the context may
otherwise require, capitalized terms used herein but not otherwise defined shall
have the meanings ascribed thereto in the Sale and Servicing Agreement.
SECTION 1.02. Other Definitional Provisions.
(a) Capitalized terms used herein that are not otherwise
defined shall have the meanings ascribed thereto in the Trust Agreement.
(b) All terms defined in this Indenture shall have the defined
meanings when used in any certificate or other document made or delivered
pursuant hereto unless otherwise defined therein.
(c) As used in this Indenture and in any certificate or other
document made or delivered pursuant hereto or thereto, accounting terms not
defined in this Indenture or in any such certificate or other document, and
accounting terms partly defined in this Indenture 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 Indenture 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
Indenture or in any such certificate or other document shall control.
(d) The words "hereof," "herein," "hereunder" and words of
similar import when used in this Indenture shall refer to this Indenture as a
whole and not to any particular provision of this Indenture; Article, Section,
Schedule and Exhibit references contained in this Indenture are references to
Articles, Sections, Schedules and Exhibits in or to this Indenture unless
otherwise specified; and the term "including" shall mean "including without
limitation".
(e) The definitions contained in this Indenture are applicable
to the singular as well as the plural forms of such terms and to the masculine
as well as to the feminine and neuter genders of such terms.
(f) Any agreement, instrument or statute defined or referred
to herein or in any instrument or certificate delivered in connection herewith
means such agreement, instrument or statute as from time to time amended,
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modified or supplemented and includes (in the case of agreements or instruments)
references to all attachments thereto and instruments incorporated therein;
references to a Person are also to its permitted successors and assigns.
SECTION 1.03. Incorporation by Reference of Trust Indenture
Act. Whenever this Indenture refers to a provision of the TIA, such provision is
incorporated by reference in and made a part of this Indenture. The following
TIA terms used in this Indenture have the following meanings:
"Commission" means the Securities and Exchange Commission.
"indenture securities" means the Notes.
"indenture security holder" means a Noteholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the
Indenture Trustee.
"obligor" on the indenture securities means the Issuer and any
other obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by
the TIA, defined by TIA reference to another statute or defined by Commission
rule have the meaning assigned to them by such definitions.
ARTICLE II.
THE NOTES
SECTION 2.01. Form. The Class A-1 Notes, the Class A-2 Notes,
the Class A-3 Notes, the Class A-4 Notes and the Class B Notes, in each case
together with the Indenture Trustee's certificate of authentication, shall be in
substantially the form set forth in Exhibit ▇-▇, ▇▇▇▇▇▇▇ ▇-▇, Exhibit ▇-▇,
▇▇▇▇▇▇▇ ▇-▇ and Exhibit A-5, respectively, with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by
this Indenture, and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may,
consistently herewith, be determined by the officers executing the Notes, as
evidenced by their execution of the Notes. Any portion of the text of any Note
may be set forth on the reverse thereof, with an appropriate reference thereto
on the face of such Note.
The Definitive Notes shall be typewritten, printed,
lithographed or engraved or produced by any combination of these methods (with
or without steel engraved borders), all as determined by the officers executing
such Notes, as evidenced by their execution of such Notes.
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Each Note shall be dated the date of its authentication. The
terms of the Notes set forth in Exhibit ▇-▇, ▇▇▇▇▇▇▇ ▇-▇, Exhibit ▇-▇, ▇▇▇▇▇▇▇
▇-▇ and Exhibit A-5 are part of the terms of this Indenture.
SECTION 2.02. Execution, Authentication and Delivery. The
Notes shall be executed on behalf of the Issuer by any of its Authorized
Officers. The signature of any such Authorized Officer on the Notes may be
manual or facsimile.
Notes bearing the manual or facsimile signature of individuals
who were at any time Authorized Officers of the Issuer shall bind the Issuer,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Notes or did not hold
such offices at the date of such Notes.
The Indenture Trustee shall upon Issuer Order authenticate and
deliver Class A-1 Notes for original issue in an aggregate principal amount of
$323,000,000, Class A-2 Notes for original issue in an aggregate principal
amount of $308,000,000, Class A-3 Notes for original issue in an aggregate
principal amount of $280,000,000, Class A-4 Notes for original issue in an
aggregate principal amount of $173,044,000 and Class B Notes for original issue
in an aggregate principal amount $24,952,000. The aggregate principal amount of
Class A-1 Notes, Class A-2 Notes, Class A-3 Notes, Class A-4 Notes and Class B
Notes outstanding at any time may not exceed such respective amounts except as
provided in Section 2.06.
The Notes shall be issuable as registered Notes in minimum
denominations of $1,000 and in integral multiples of $1,000 in excess thereof
(except for one Note of each class which may be issued in a denomination other
than an integral multiple of $1,000).
No Note shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose, unless there appears on such Note a
certificate of authentication substantially in the form provided for herein
executed by the Indenture Trustee by the manual signature of one of its
authorized signatories, and such certificate upon any Note shall be conclusive
evidence, and the only evidence, that such Note has been duly authenticated and
delivered hereunder.
SECTION 2.03. Temporary Notes. Pending the preparation of
Definitive Notes, the Issuer may execute, and upon receipt of an Issuer Order
the Indenture Trustee shall authenticate and deliver, temporary Notes that are
printed, lithographed, typewritten, mimeographed or otherwise produced, of the
tenor of the Definitive Notes in lieu of which they are issued and with such
variations not inconsistent with the terms of this Indenture as the officers
executing such Notes may determine, as evidenced by their execution of such
Notes.
If temporary Notes are issued, the Issuer shall cause
Definitive Notes to be prepared without unreasonable delay. After the
preparation of Definitive Notes, the temporary Notes shall be exchangeable for
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Definitive Notes upon surrender of the temporary Notes at the office or agency
of the Issuer to be maintained as provided in Section 3.02, without charge to
the Holder. Upon surrender for cancellation of any one or more temporary Notes,
the Issuer shall execute, and the Indenture Trustee shall authenticate and
deliver in exchange therefor, a like principal amount of Definitive Notes of
authorized denominations. Until so exchanged, the temporary Notes shall in all
respects be entitled to the same benefits under this Indenture as Definitive
Notes.
SECTION 2.04. Registration; Registration of Transfer and
Exchange. The Issuer shall cause to be kept a register (the "Note Register") in
which, subject to such reasonable regulations as it may prescribe, the Note
Registrar shall provide for the registration of Notes and the registration of
transfers of Notes. The Indenture Trustee initially shall be the "Note
Registrar" for the purpose of registering Notes and transfers of Notes as herein
provided. Upon any resignation of any Note Registrar, the Issuer shall promptly
appoint a successor or, if it elects not to make such an appointment, assume the
duties of Note Registrar.
If a Person other than the Indenture Trustee is appointed by
the Issuer as Note Registrar, the Issuer will give the Indenture Trustee prompt
written notice of the appointment of such Note Registrar and of the location,
and any change in the location, of the Note Register, and the Indenture Trustee
shall have the right to inspect the Note Register at all reasonable times and to
obtain copies thereof, and the Indenture Trustee shall have the right to
conclusively rely upon a certificate executed on behalf of the Note Registrar by
an Executive Officer thereof as to the names and addresses of the Holders of the
Notes and the principal amounts and number of such Notes.
Upon surrender for registration of transfer of any Note at the
office or agency of the Issuer to be maintained as provided in Section 3.02, if
the requirements of Section 8-401(a) of the UCC are met, the Issuer shall
execute, and the Indenture Trustee shall authenticate and the Noteholder shall
obtain from the Indenture Trustee, in the name of the designated transferee or
transferees, one or more new Notes of the same Class in any authorized
denominations, of a like aggregate principal amount.
At the option of the Holder, Notes may be exchanged for other
Notes of the same Class in any authorized denominations, of a like aggregate
principal amount, upon surrender of the Notes to be exchanged at such office or
agency. Whenever any Notes are so surrendered for exchange, if the requirements
of Section 8-401(a) of the UCC are met, the Issuer shall execute, and the
Indenture Trustee, without having to verify that the requirements of 8-401(a)
have been met, shall authenticate and the Noteholder shall obtain from the
Indenture Trustee, the Notes that the Noteholder making the exchange is entitled
to receive.
All Notes issued upon any registration of transfer or exchange
of Notes shall be the valid obligations of the Issuer, evidencing the same debt,
and entitled to the same benefits under this Indenture, as the Notes surrendered
upon such registration of transfer or exchange.
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Every Note presented or surrendered for registration of
transfer or exchange shall be duly endorsed by, or be accompanied by a written
instrument of transfer in form satisfactory to the Indenture Trustee duly
executed by, the Holder thereof or such Holder's attorney duly authorized in
writing, with such signature guaranteed by an "eligible guarantor institution"
meeting the requirements of the Note Registrar, which requirements include
membership or participation in the Securities Transfer Agent's Medallion Program
("STAMP") or such other "signature guarantee program" as may be determined by
the Note Registrar in addition to, or in substitution for, STAMP, all in
accordance with the Exchange Act.
No service charge shall be made to a Holder for any
registration of transfer or exchange of Notes, but the Issuer may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any registration of transfer or exchange of
Notes, other than exchanges pursuant to Section 2.03 or 9.05 not involving any
transfer.
The preceding provisions of this Section notwithstanding, the
Issuer shall not be required to make and the Note Registrar need not register
transfers or exchanges of Notes selected for redemption or of any Note for a
period of 15 days preceding the due date for any payment with respect to the
Note.
No Note, or any interest therein, may be transferred to an
"employee benefit plan" within the meaning of Section 3(3) of ERISA that is
subject to ERISA, a "plan" described in Section 4975(e)(1) of the Code, any
entity that is deemed to hold "plan assets" of any of the foregoing by reason of
an employee benefit plan's or other plan's investment in such entity, or any
governmental plan subject to applicable law that is substantially similar to the
fiduciary responsibility provisions of ERISA or Section 4975 of the Code, unless
such transferee represents, warrants and covenants that its purchase and holding
of such note is and will be eligible for, and satisfies and will satisfy all the
requirements of Section 408(b)(17) of ERISA or of, Department of Labor
prohibited transaction class exemption ("PTE") 90-1; PTE 96-23; PTE 95-60; PTE
91-38; PTE 84-14 or another applicable prohibited transaction exemption (or in
the case of a governmental plan, will not violate any applicable law that is
substantially similar to ERISA or Section 4975 of the Code). By its acquisition
of a Note in book-entry form or any interest therein, each transferee will be
deemed to have represented, warranted and covenanted that it satisfies the
foregoing requirements and the Indenture Trustee may rely conclusively on the
same for purposes hereof.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the transfer of Notes.
SECTION 2.05. [Reserved].
SECTION 2.06. Mutilated, Destroyed, Lost or Stolen Notes. If
(i) any mutilated Note is surrendered to the Indenture Trustee, or the Indenture
Trustee receives evidence to its satisfaction of the destruction, loss or theft
of any Note, and (ii) there is delivered to the Indenture Trustee such security
14
or indemnity as may be required by it to hold the Issuer and the Indenture
Trustee harmless, then, in the absence of notice to the Issuer, the Note
Registrar or the Indenture Trustee that such Note has been acquired by a bona
fide purchaser, and provided that the requirements of Section 8-405 of the UCC
are met, the Issuer shall execute, and upon an Issuer Order the Indenture
Trustee shall authenticate and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Note, a replacement Note of the same Class;
provided, however, that if any such destroyed, lost or stolen Note, but not a
mutilated Note, shall have become or within 15 days shall be due and payable, or
shall have been called for redemption, instead of issuing a replacement Note,
the Issuer may pay such destroyed, lost or stolen Note when so due or payable or
upon the Redemption Date without surrender thereof. If, after the delivery of
such replacement Note or payment of a destroyed, lost or stolen Note, a bona
fide purchaser of the original Note in lieu of which such replacement Note was
issued presents for payment such original Note, the Issuer and the Indenture
Trustee shall be entitled to recover such replacement Note (or such payment)
from the Person to whom it was delivered or any Person taking such replacement
Note from such Person to whom such replacement Note was delivered or any
assignee of such Person, except a bona fide purchaser, and shall be entitled to
recover upon the security or indemnity provided therefor to the extent of any
loss, damage, cost or expense incurred by the Issuer or the Indenture Trustee in
connection therewith.
Upon the issuance of any replacement Note under this Section,
the Issuer may require the payment by the Holder of such Note of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other reasonable expenses (including the fees and
expenses of the Indenture Trustee) connected therewith.
Every replacement Note issued pursuant to this Section in
replacement of any mutilated, destroyed, lost or stolen Note shall constitute an
original additional contractual obligation of the Issuer, whether or not the
mutilated, destroyed, lost or stolen Note shall be at any time enforceable by
anyone, and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Notes duly issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Notes.
SECTION 2.07. Persons Deemed Owners. Prior to due presentment
for registration of transfer of any Note, the Issuer, the Indenture Trustee and
any agent of the Issuer or the Indenture Trustee may treat the Person in whose
name any Note is registered (as of the day of determination) as the owner of
such Note for the purpose of receiving payments of principal of and interest, if
any, on such Note and for all other purposes whatsoever, whether or not such
Note be overdue, and none of the Issuer, the Indenture Trustee or any agent of
the Issuer or the Indenture Trustee shall be affected by notice to the contrary.
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SECTION 2.08. Payment of Principal and Interest; Defaulted
Interest.
(a) The Class A-1 Notes, the Class A-2 Notes, the Class A-3
Notes, the Class A-4 Notes and the Class B Notes shall accrue interest at the
Class A-1 Rate, the Class A-2 Rate, the Class A-3 Rate, the Class A-4 Rate and
the Class B Rate, respectively, as set forth in Exhibit ▇-▇, ▇▇▇▇▇▇▇ ▇-▇,
Exhibit ▇-▇, ▇▇▇▇▇▇▇ ▇-▇ and Exhibit A-5, respectively, and such interest shall
be payable on each Payment Date as specified therein, subject to Section 3.01.
Any installment of interest or principal payable on a Note that is punctually
paid or duly provided for by the Issuer on the applicable Payment Date shall be
paid to the Person in whose name such Note (or one or more Predecessor Notes) is
registered on the Record Date by check mailed first-class postage prepaid to
such Person's address as it appears on the Note Register on such Record Date,
except that, unless Definitive Notes have been issued pursuant to Section 2.12,
with respect to Notes registered on the Record Date in the name of the nominee
of the Clearing Agency (initially, such nominee to be Cede & Co.), payment shall
be made by wire transfer in immediately available funds to the account
designated by such nominee; provided, however, that the final installment of
principal payable with respect to such Note on a Payment Date or on the related
Final Scheduled Payment Date (including the Redemption Price for any Note called
for redemption pursuant to Section 10.01) shall be payable as provided in
paragraph (b) below. The funds represented by any such checks returned
undelivered shall be held in accordance with Section 3.03.
(b) The principal of each Note shall be payable in
installments on each Payment Date as provided in Section 3.01 and the forms of
the Notes set forth in Exhibit ▇-▇, ▇▇▇▇▇▇▇ ▇-▇, Exhibit ▇-▇, ▇▇▇▇▇▇▇ ▇-▇ and
Exhibit A-5. Notwithstanding the foregoing, the entire unpaid principal amount
of the Notes may be declared immediately due and payable, if not previously
paid, in the manner provided in Section 5.02 on any date on which an Event of
Default shall have occurred and be continuing by the Indenture Trustee or the
Indenture Trustee acting at the direction of the Holders of Notes representing
not less than a majority of the Outstanding Amount of the Notes of the
Controlling Class. All principal payments on each Class of Notes shall be made
pro rata to the Noteholders of the related Class entitled thereto. Upon written
notice thereof, the Indenture Trustee shall notify the Person in whose name a
Note is registered at the close of business on the Record Date preceding the
Payment Date on which the Issuer expects the final installment of principal of
and interest on such Note to be paid. Such notice shall specify that such final
installment will be payable only upon presentation and surrender of such Note
and shall specify the place where such Note may be presented and surrendered for
payment of such installment. Notices in connection with redemptions of Notes
shall be mailed to Noteholders as provided in Section 10.02.
(c) If the Issuer defaults in a payment of interest on the
Notes, the Issuer shall pay defaulted interest (plus interest on such defaulted
interest to the extent lawful) at the applicable Interest Rate in any lawful
manner on the next Payment Date.
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SECTION 2.09. Cancellation. All Notes surrendered for payment,
registration of transfer, exchange or redemption shall, if surrendered to any
Person other than the Indenture Trustee, be delivered to the Indenture Trustee
and shall be promptly cancelled by the Indenture Trustee. The Issuer may at any
time deliver to the Indenture Trustee for cancellation any Notes previously
authenticated and delivered hereunder that the Issuer may have acquired in any
manner whatsoever, and all Notes so delivered shall be promptly cancelled by the
Indenture Trustee. No Notes shall be authenticated in lieu of or in exchange for
any Notes cancelled as provided in this Section, except as expressly permitted
by this Indenture. All cancelled Notes may be held or disposed of by the
Indenture Trustee in accordance with its standard retention or disposal policy
as in effect at the time unless the Issuer shall direct by an Issuer Order that
they be destroyed or returned to it; provided, that such Issuer Order is timely
and the Notes have not been previously disposed of by the Indenture Trustee.
SECTION 2.10. Book-Entry Notes. The Notes, upon original
issuance, will be issued in the form of typewritten Notes representing the
Book-Entry Notes, to be delivered to The Depository Trust Company, the initial
Clearing Agency, by, or on behalf of, the Issuer. The Book-Entry Notes shall be
registered initially on the Note Register in the name of Cede & Co., the nominee
of the initial Clearing Agency, and no Owner thereof will receive a Definitive
Note representing such Note Owner's interest in such Note, except as provided in
Section 2.12. Unless and until definitive, fully registered Notes (the
"Definitive Notes") have been issued to such Note Owners pursuant to Section
2.12:
(i) the provisions of this Section shall be in full
force and effect;
(ii) the Note Registrar and the Indenture Trustee
shall be entitled to deal with the Clearing Agency for all
purposes of this Indenture (including the payment of principal
of and interest on the Notes and the giving of instructions or
directions hereunder) as the sole holder of the Notes, and
shall have no obligation to the Note Owners;
(iii) to the extent that the provisions of this
Section conflict with any other provisions of this Indenture,
the provisions of this Section shall control;
(iv) the rights of Note Owners shall be exercised
only through the Clearing Agency and shall be limited to those
established by law and agreements between such Note Owners and
the Clearing Agency or the Clearing Agency Participants
pursuant to the Note Depository Agreement. Unless and until
Definitive Notes are issued pursuant to Section 2.12, the
initial Clearing Agency will make book-entry transfers among
the Clearing Agency Participants and receive and transmit
payments of principal of and interest on the Notes to such
Clearing Agency Participants; and
17
(v) whenever this Indenture requires or permits
actions to be taken based upon instructions or directions of
Holders of Notes evidencing a specified percentage of the
Outstanding Amount of the Notes of the Controlling Class, the
Clearing Agency shall be deemed to represent such percentage
only to the extent that it has received instructions to such
effect from Note Owners or Clearing Agency Participants owning
or representing, respectively, such required percentage of the
beneficial interest in the Notes and has delivered such
instructions to the Indenture Trustee.
SECTION 2.11. Notices to Clearing Agency. Whenever a notice or
other communication to the Noteholders is required under this Indenture, unless
and until Definitive Notes shall have been issued to such Note Owners pursuant
to Section 2.12, the Indenture Trustee shall give all such notices and
communications specified herein to be given to Holders of the Notes to the
Clearing Agency, and shall have no obligation to such Note Owners.
SECTION 2.12. Definitive Notes. If (i) the Administrator
advises the Indenture Trustee in writing that the Clearing Agency is no longer
willing or able to properly discharge its responsibilities with respect to the
Book-Entry Notes and the Administrator is unable to locate a qualified successor
or (ii) after the occurrence of an Event of Default or a Servicer Termination
Event, Owners of the Book-Entry Notes representing beneficial interests
aggregating at least a majority of the Outstanding Amount of such Notes advise
the Clearing Agency in writing that the continuation of a book-entry system
through the Clearing Agency is no longer in the best interests of such Note
Owners, then the Clearing Agency shall notify all Note Owners, the Administrator
and the Indenture Trustee of the occurrence of any such event and of the
availability of Definitive Notes to Note Owners requesting the same. Upon
surrender to the Indenture Trustee of the typewritten Notes representing the
Book-Entry Notes by the Clearing Agency, accompanied by registration
instructions, the Issuer shall execute and the Indenture Trustee upon an Issuer
Order shall authenticate the Definitive Notes in accordance with the written
instructions of the Clearing Agency. None of the Issuer, the Note Registrar, the
Administrator or the Indenture Trustee shall be liable for any delay in delivery
of such instructions and may conclusively rely on, and shall be protected in
relying on, such instructions. Upon the issuance of Definitive Notes, the
Indenture Trustee shall recognize the Holders of the Definitive Notes as
Noteholders.
SECTION 2.13. Tax Treatment. The Issuer has entered into this
Indenture, and the Notes will be issued, with the intention that, for purposes
of federal and state income tax, franchise tax and any other tax measured in
whole or in part by income, the Notes will qualify as indebtedness secured by
the Trust Estate. The Issuer, by entering into this Indenture, and each
Noteholder, by its acceptance of a Note (and each Note Owner by its acceptance
of an interest in the applicable Book-Entry Note), agree to treat the Notes for
such purposes as indebtedness.
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ARTICLE III.
COVENANTS
SECTION 3.01. Payment of Principal and Interest. The Issuer
will duly and punctually pay the principal of and interest, if any, on the Notes
in accordance with the terms of the Notes and this Indenture. Without limiting
the foregoing, subject to Section 8.02(c), on each Payment Date, the Issuer will
cause to be distributed all amounts deposited pursuant to the Sale and Servicing
Agreement into the Note Distribution Account (i) for the benefit of the Class
A-1 Notes, to the Class A-1 Noteholders, (ii) for the benefit of the Class A-2
Notes, to the Class A-2 Noteholders, (iii) for the benefit of the Class A-3
Notes, to the Class A-3 Noteholders (iv) for the benefit of the Class A-4 Notes,
to the Class A-4 Noteholders and (v) for the benefit of the Class B Notes, to
the Class B Noteholders. Amounts properly withheld under the Code by any Person
from a payment to any Noteholder of interest or principal shall be considered as
having been paid by the Issuer to such Noteholder for all purposes of this
Indenture.
SECTION 3.02. Maintenance of Office or Agency. The Issuer will
maintain in the Borough of Manhattan, The City of New York, an office or agency
where notices and demands to or upon the Issuer in respect of the Notes and this
Indenture may be served. Such office will initially be located at ▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: Structured Finance Services-BMW 2006-A.
The Issuer will maintain in Nashville, Tennessee, an office or agency where
definitive Notes may be surrendered for registration of transfer or exchange.
Such office will initially be located at (a) by mail-DB Services Tennessee,
Inc., ▇.▇. ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Corporate Trust and
Agency Services, Bond Transfer Unit-BMW 2006-A and (b) by overnight courier-DB
Services Tennessee, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention:
Corporate Trust and Agency Services, Bond Transfer Unit-BMW 2006-A. The Issuer
will give prompt written notice to the Indenture Trustee of the location, and of
any change in the location, of any such office or agency. If at any time the
Issuer shall fail to maintain any such office or agency or shall fail to furnish
the Indenture Trustee with the address thereof, such surrenders, notices and
demands may be made or served at the Corporate Trust Office, and the Issuer
hereby appoints the Indenture Trustee as its agent to receive all such
surrenders, notices and demands.
SECTION 3.03. Money for Payments To Be Held in Trust. All
payments of amounts due and payable with respect to any Notes that are to be
made from amounts withdrawn from the Collection Account, the Note Distribution
Account and the Reserve Account shall be made on behalf of the Issuer by the
Indenture Trustee or by another Paying Agent, and no amounts so withdrawn from
the Collection Account, the Note Distribution Account or the Reserve Account for
payments of Notes shall be paid to the Issuer except as provided in this
Section.
On or before the Business Day preceding each Payment Date and
Redemption Date, the Issuer shall deposit or cause to be deposited in the Note
Distribution Account an aggregate sum sufficient to pay the amounts then
becoming due under the Notes, such sum to be held in trust for the benefit of
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the Persons entitled thereto, and (unless the Paying Agent is the Indenture
Trustee) shall promptly notify the Indenture Trustee of its action or failure so
to act.
The Issuer will cause each Paying Agent other than the
Indenture Trustee to execute and deliver to the Indenture Trustee an instrument
in which such Paying Agent shall agree with the Indenture Trustee (and if the
Indenture Trustee acts as Paying Agent, it hereby so agrees), subject to the
provisions of this Section, that such Paying Agent will:
(i) hold all sums held by it for the payment of
amounts due with respect to the Notes in trust for the benefit
of the Persons entitled thereto until such sums shall be paid
to such Persons or otherwise disposed of as herein provided
and pay such sums to such Persons as herein provided;
(ii) give the Indenture Trustee notice of any default
by the Issuer (or any other obligor on the Notes) of which it
has actual knowledge in the making of any payment required to
be made with respect to the Notes;
(iii) at any time during the continuance of any such
default, upon the written request of the Indenture Trustee,
forthwith pay to the Indenture Trustee all sums so held in
trust by such Paying Agent;
(iv) immediately resign as a Paying Agent and
forthwith pay to the Indenture Trustee all sums held by it in
trust for the payment of Notes if at any time it ceases to
meet the standards required to be met by a Paying Agent at the
time of its appointment; and
(v) comply with all requirements of the Code with
respect to the withholding from any payments made by it on any
Notes of any applicable withholding taxes imposed thereon and
with respect to any applicable reporting requirements in
connection therewith.
The Issuer may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, by Issuer
Order direct any Paying Agent to pay to the Indenture Trustee all sums held in
trust by such Paying Agent, such sums to be held by the Indenture Trustee upon
the same trusts as those upon which the sums were held by such Paying Agent; and
upon such payment by any Paying Agent to the Indenture Trustee, such Paying
Agent shall be released from all further liability with respect to such money.
Subject to applicable laws with respect to escheat of funds,
any money held by the Indenture Trustee or any Paying Agent in trust for the
payment of any amount due with respect to any Note and remaining unclaimed for
two years after such amount has become due and payable shall be discharged from
such trust and be paid upon Issuer Request to the Issuer; and the Holder of such
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Note shall thereafter, as an unsecured general creditor, look only to the Issuer
for payment thereof (but only to the extent of the amounts so paid to the
Issuer), and all liability of the Indenture Trustee or such Paying Agent with
respect to such trust money shall thereupon cease; provided, however, that the
Indenture Trustee or such Paying Agent, before being required to make any such
repayment, shall at the expense and direction of the Issuer cause to be
published once, in a newspaper published in the English language, customarily
published on each Business Day and of general circulation in The City of New
York, notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such publication,
any unclaimed balance of such money then remaining will be repaid to the Issuer.
The Indenture Trustee shall also adopt and employ, at the expense and direction
of the Issuer, any other reasonable means of notification of such repayment
(including, but not limited to, mailing notice of such repayment to Holders
whose Notes have been called but have not been surrendered for redemption or
whose right to or interest in moneys due and payable but not claimed is
determinable from the records of the Indenture Trustee or of any Paying Agent,
at the last address of record for each such Holder).
SECTION 3.04. Existence. Except as otherwise permitted by the
provisions of Section 3.10, the Issuer will keep in full effect its existence,
rights and franchises as a statutory trust under the laws of the State of
Delaware (unless it becomes, or any successor Issuer hereunder is or becomes,
organized under the laws of any other State or of the United States of America,
in which case the Issuer will keep in full effect its existence, rights and
franchises under the laws of such other jurisdiction) and will obtain and
preserve its qualification to do business in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Indenture, the Notes, the Collateral and each other
instrument or agreement included in the Trust Estate.
SECTION 3.05. Protection of Trust Estate. The Issuer will from
time to time execute and deliver all such supplements and amendments hereto and
all such financing statements, continuation statements, instruments of further
assurance and other instruments, and will take such other action necessary or
advisable to:
(i) maintain or preserve the lien and security
interest (and the priority thereof) of this Indenture or carry
out more effectively the purposes hereof;
(ii) perfect, publish notice of or protect the
validity of any Grant made or to be made by this Indenture;
(iii) enforce any of the Collateral; or
(iv) preserve and defend title to the Trust Estate
and the rights of the Indenture Trustee and the Noteholders in
such Trust Estate against the claims of all Persons and
parties.
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The Issuer hereby designates the Indenture Trustee, as its agent and
attorney-in-fact, to execute upon an Issuer Order any financing statement,
continuation statement or other instrument required to be executed pursuant to
this Section 3.05.
SECTION 3.06. Opinions as to Trust Estate.
(a) On the Closing Date, the Issuer shall cause to be
furnished to the Indenture Trustee an Opinion of Counsel either stating that, in
the opinion of such counsel, such action has been taken with respect to the
recording and filing of this Indenture, any indentures supplemental hereto, and
any other requisite documents, and with respect to the execution and filing of
any financing statements and continuation statements, as are necessary to
perfect and make effective the lien and security interest of this Indenture and
reciting the details of such action, or stating that, in the opinion of such
counsel, no such action is necessary to make such lien and security interest
effective.
(b) On or before April 30, in each calendar year, beginning in
2007, the Issuer shall furnish to the Indenture Trustee and the Rating Agencies
an Opinion of Counsel either stating that, in the opinion of such counsel, such
action has been taken with respect to the recording, filing, re-recording and
refiling of this Indenture, any indentures supplemental hereto and any other
requisite documents and with respect to the execution and filing of any
financing statements and continuation statements as is necessary to maintain the
lien and security interest created by this Indenture and reciting the details of
such action, or stating that in the opinion of such counsel no such action is
necessary to maintain such lien and security interest. Such Opinion of Counsel
shall also describe the recording, filing, re-recording and refiling of this
Indenture, any indentures supplemental hereto and any other requisite documents
and the execution and filing of any financing statements and continuation
statements that will, in the opinion of such counsel, be required to maintain
the lien and security interest of this Indenture until April 30 of the following
calendar year.
SECTION 3.07. Performance of Obligations; Servicing of
Receivables.
(a) The Issuer will not take any action and will use its
reasonable best efforts not to permit any action to be taken by others that
would release any Person from any of such Person's material covenants or
obligations under any instrument or agreement included in the Trust Estate or
that would result in the amendment, hypothecation, subordination, termination or
discharge of, or impair the validity or effectiveness of, any such instrument or
agreement, except as expressly provided in this Indenture, the Sale and
Servicing Agreement or such other instrument or agreement.
(b) The Issuer may contract with other Persons with
notification to the Rating Agencies to assist it in performing its duties under
this Indenture, and any performance of such duties by a Person identified to the
Indenture Trustee in an Officer's Certificate of the Issuer shall be deemed to
be action taken by the Issuer. Initially, the Issuer has contracted with the
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Servicer and the Administrator to assist the Issuer in performing its duties
under this Indenture.
(c) The Issuer will punctually perform and observe all of its
obligations and agreements contained in this Indenture, the Basic Documents and
in the instruments and agreements included in the Trust Estate, including but
not limited to filing or causing to be filed all UCC financing statements and
continuation statements required to be filed by the terms of this Indenture and
the Sale and Servicing Agreement in accordance with and within the time periods
provided for herein and therein. Except as otherwise expressly provided therein,
the Issuer shall not waive, amend, modify, supplement or terminate any Basic
Document or any provision thereof without the written consent of either the
Indenture Trustee or the Holders of at least a majority of the Outstanding
Amount of the Notes.
(d) If the Issuer shall have knowledge of the occurrence of a
Servicer Termination Event under the Sale and Servicing Agreement, the Issuer
shall promptly notify the Indenture Trustee and the Rating Agencies thereof, and
shall specify in such notice the action, if any, the Issuer is taking with
respect to such default.
(e) [Reserved]
(f) Upon any termination of the Servicer's rights and powers
pursuant to the Sale and Servicing Agreement, the Issuer shall promptly notify
the Indenture Trustee thereof. As soon as a successor servicer (a "Successor
Servicer") is appointed, the Issuer shall notify the Indenture Trustee in
writing of such appointment, specifying in such notice the name and address of
such Successor Servicer.
(g) Without limitation of the absolute nature of the
assignment granted to the Indenture Trustee under this Indenture or the rights
of the Indenture Trustee hereunder, the Issuer agrees (i) except to the extent
otherwise provided in any Basic Document, that it will not, without the prior
written consent of the Indenture Trustee acting at the direction of the Holders
of at least a majority in Outstanding Amount of the Notes, amend, modify, waive,
supplement, terminate or surrender, or agree to any amendment, modification,
supplement, termination, waiver or surrender of, the terms of any Collateral
(except to the extent otherwise provided in the Sale and Servicing Agreement) or
the Basic Documents, or waive timely performance or observance by the Servicer
or the Seller under the Sale and Servicing Agreement; and (ii) that any such
amendment shall not (A) increase or reduce in any manner the amount of, or
accelerate or delay the timing of, distributions that are required to be made
for the benefit of the Noteholders or (B) reduce the aforesaid percentage of the
Notes that is required to consent to any such amendment, without the consent of
the Holders of all Outstanding Notes. If the Indenture Trustee acting at the
direction of such Holders agrees to any such amendment, modification, supplement
or waiver, the Indenture Trustee agrees, promptly following a request by the
Issuer to do so, to execute and deliver, at the Issuer's own expense, such
agreements, instruments, consents and other documents as the Issuer may deem
necessary or appropriate in the circumstances.
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SECTION 3.08. Negative Covenants. So long as any Notes are
Outstanding, the Issuer shall not:
(i) except as expressly permitted by this Indenture,
the Receivables Purchase Agreement or the Sale and Servicing
Agreement, sell, transfer, exchange or otherwise dispose of
any of the properties or assets of the Issuer, including those
included in the Trust Estate, unless directed to do so by the
Indenture Trustee acting on direction of at least a majority
of the Outstanding Amount of the Notes of the Controlling
Class given pursuant to this Indenture;
(ii) claim any credit on, or make any deduction from
the principal or interest payable in respect of, the Notes
(other than amounts properly withheld from such payments under
the Code) or assert any claim against any present or former
Noteholder by reason of the payment of the taxes levied or
assessed upon any part of the Trust Estate; or
(iii) (A) permit the validity or effectiveness of
this Indenture to be impaired, or permit the lien of this
Indenture to be amended, hypothecated, subordinated,
terminated or discharged, or permit any Person to be released
from any covenants or obligations with respect to the Notes
under this Indenture except as may be expressly permitted
hereby, (B) permit any lien, charge, excise, claim, security
interest, mortgage or other encumbrance (other than the lien
of this Indenture) to be created on or extend to or otherwise
arise upon or burden the Trust Estate or any part thereof or
any interest therein or the proceeds thereof (other than tax
liens, mechanics' liens and other liens that arise by
operation of law, in each case on any of the Financed Vehicles
and arising solely as a result of an action or omission of the
related Obligor and the lien of this Indenture) or (C) permit
the lien of this Indenture not to constitute a valid first
priority (other than with respect to any such tax, mechanics'
or other lien) security interest in the Trust Estate.
SECTION 3.09. Annual Statement and Assessment as to
Compliance.
(a) The Issuer will deliver to the Indenture Trustee and the
Rating Agencies, within 90 days after the end of each fiscal year of the Issuer
(commencing with the fiscal year 2006), an Officer's Certificate stating, as to
the Authorized Officer signing such Officer's Certificate, that:
(i) a review of the activities of the Issuer during
such year and of its performance under this Indenture has been
made under such Authorized Officer's supervision; and
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(ii) to the best of such Authorized Officer's
knowledge, based on such review, the Issuer has complied with
all conditions and covenants under this Indenture throughout
such year or, if there has been a default in its compliance
with any such condition or covenant, specifying each such
default known to such Authorized Officer and the nature and
status thereof.
(b) On or before March 1st of each calendar year on which the
Issuer is required to file a Form 10-K, commencing in 2007, the Indenture
Trustee shall deliver to the Issuer and the Administrator (i) a report regarding
the Indenture Trustee's assessment of compliance with the Servicing Criteria set
forth in Exhibit C hereto during the immediately preceding calendar year, as
required under Rules 13a-18 and 15d-18 of the Exchange Act and Item 1122 of
Regulation AB and (ii) an attestation report in respect of the Indenture
Trustee's assessment of compliance with the Servicing Criteria set forth in
Exhibit C hereto. The report set forth in clause (i) above shall be signed by an
authorized officer of the Indenture Trustee.
SECTION 3.10. Issuer May Consolidate, etc., Only on Certain
Terms.
(a) The Issuer shall not consolidate or merge with or into any
other Person, unless:
(i) the Person (if other than the Issuer) formed by
or surviving such consolidation or merger shall be a Person
organized and existing under the laws of the United States of
America or any State and shall expressly assume, by an
indenture supplemental hereto, executed and delivered to the
Indenture Trustee, in form satisfactory to the Indenture
Trustee, the due and punctual payment of the principal of and
interest on all Notes and the performance or observance of
every agreement and covenant of this Indenture on the part of
the Issuer to be performed or observed, all as provided
herein;
(ii) immediately after giving effect to such
transaction, no Default or Event of Default shall have
occurred and be continuing;
(iii) the Rating Agency Condition shall have been
satisfied with respect to such transaction;
(iv) the Issuer shall have received an Opinion of
Counsel (and shall have delivered copies thereof to the
Indenture Trustee) to the effect that such transaction will
not have any material adverse federal income tax consequences
to the Issuer, any Noteholder or any Certificateholder;
(v) any action that is necessary to maintain the lien
and security interest created by this Indenture shall have
been taken; and
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(vi) the Issuer shall have delivered to the Indenture
Trustee an Officer's Certificate and an Opinion of Counsel
each stating that such consolidation or merger and such
supplemental indenture comply with this Article III and that
all conditions precedent herein provided for relating to such
transaction have been complied with (including any filing
required by the Exchange Act) in all material respects.
(b) The Issuer shall not convey or transfer any of its
properties or assets, including those included in the Trust Estate, to any
Person, unless:
(i) the Person that acquires by conveyance or
transfer the properties and assets of the Issuer the
conveyance or transfer of which is hereby restricted (A) shall
be a United States citizen or a Person organized and existing
under the laws of the United States of America or any State,
(B) expressly assumes, by an indenture supplemental hereto,
executed and delivered to the Indenture Trustee, in form
satisfactory to the Indenture Trustee, the due and punctual
payment of the principal of and interest on all Notes and the
performance or observance of every agreement and covenant of
this Indenture on the part of the Issuer to be performed or
observed, all as provided herein, (C) expressly agrees by
means of such supplemental indenture that all right, title and
interest so conveyed or transferred shall be subject and
subordinate to the rights of Holders of the Notes, (D) unless
otherwise provided in such supplemental indenture, expressly
agrees to indemnify, defend and hold harmless the Issuer and
the Indenture Trustee against and from any loss, liability or
expense arising under or related to this Indenture and the
Notes and (E) expressly agrees by means of such supplemental
indenture that such Person (or, if a group of Persons, one
specified Person) shall make all filings with the Commission
(and any other appropriate Person) required by the Exchange
Act in connection with the Notes;
(ii) immediately after giving effect to such
transaction, no Default or Event of Default shall have
occurred and be continuing;
(iii) the Rating Agency Condition shall have been
satisfied with respect to such transaction;
(iv) the Issuer shall have received an Opinion of
Counsel (and shall have delivered copies thereof to the
Indenture Trustee) to the effect that such transaction will
not have any material adverse federal income tax consequences
to the Issuer, any Noteholder or any Certificateholder;
(v) any action that is necessary to maintain the lien
and security interest created by this Indenture shall have
been taken; and
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(vi) the Issuer shall have delivered to the Indenture
Trustee an Officer's Certificate and an Opinion of Counsel
each stating that such conveyance or transfer and such
supplemental indenture comply with this Article III and that
all conditions precedent herein provided for relating to such
transaction have been complied with (including any filing
required by the Exchange Act) in all material respects.
SECTION 3.11. Successor or Transferee.
(a) Upon any consolidation or merger of the Issuer in
accordance with Section 3.10(a), the Person formed by or surviving such
consolidation or merger (if other than the Issuer) shall succeed to, and be
substituted for, and may exercise every right and power of, the Issuer under
this Indenture with the same effect as if such Person had been named as the
Issuer herein.
(b) Upon a conveyance or transfer of all the assets and
properties of the Issuer pursuant to Section 3.10(b), BMW Vehicle Owner Trust
2006-A will be released from every covenant and agreement of this Indenture to
be observed by or performed on the part of the Issuer with respect to the Notes
immediately upon the delivery of written notice to the Indenture Trustee stating
that BMW Vehicle Owner Trust 2006-A is to be so released.
SECTION 3.12. No Other Business. The Issuer shall not engage
in any business other than financing, purchasing, owning, selling and managing
the Receivables in the manner contemplated by this Indenture and the Basic
Documents and any activities incidental thereto.
SECTION 3.13. No Borrowing. The Issuer shall not issue, incur,
assume, guarantee or otherwise become liable, directly or indirectly, for any
indebtedness except for the Notes.
SECTION 3.14. Servicer's Obligations. The Issuer shall cause
the Servicer to comply with the Sale and Servicing Agreement, including Sections
4.09, 4.10 and 4.11 and Article VII thereof.
SECTION 3.15. Guarantees, Loans, Advances and Other
Liabilities. Except as contemplated by the Trust Agreement, the Sale and
Servicing Agreement or this Indenture, the Issuer shall not make any loan or
advance or credit to, or guarantee (directly or indirectly or by an instrument
having the effect of assuring another's payment or performance on any obligation
or capability of so doing or otherwise), endorse or otherwise become
contingently liable, directly or indirectly, in connection with the obligations,
stocks or dividends of, or own, purchase, repurchase or acquire (or agree
contingently to do so) any stock, obligations, assets or securities of, or any
other interest in, or make any capital contribution to, any Person.
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SECTION 3.16. Capital Expenditures. The Issuer shall not make
any expenditure (by long-term or operating lease or otherwise) for capital
assets (either realty or personalty).
SECTION 3.17. Removal of Administrator. So long as any Notes
are Outstanding, the Issuer shall not remove the Administrator unless the Rating
Agency Condition shall have been satisfied in connection with such removal and
the Indenture Trustee receives written notice of the foregoing and consents
thereto.
SECTION 3.18. Restricted Payments. Except with respect to the
proceeds from issuance of the Notes, the Issuer shall not, directly or
indirectly, (i) pay any dividend or make any distribution (by reduction of
capital or otherwise), whether in cash, property, securities or a combination
thereof, to the Owner Trustee or any owner of a beneficial interest in the
Issuer or otherwise with respect to any ownership or equity interest or security
in or of the Issuer or to the Servicer, (ii) redeem, purchase, retire or
otherwise acquire for value any such ownership or equity interest or security or
(iii) set aside or otherwise segregate any amounts for any such purpose;
provided, however, that the Issuer may make, or cause to be made, distributions
as contemplated by, and to the extent funds are available for such purpose
under, the Sale and Servicing Agreement, this Indenture or the Trust Agreement.
The Issuer will not, directly or indirectly, make payments to or distributions
from the Note Distribution Account, the Collection Account or the Reserve
Account except in accordance with this Indenture and the other Basic Documents.
SECTION 3.19. Notice of Events of Default. The Issuer shall
give the Indenture Trustee and the Rating Agencies prompt written notice of each
Event of Default hereunder, and of each default on the part of the Servicer or
the Seller of its obligations under the Sale and Servicing Agreement.
SECTION 3.20. Further Instruments and Acts. Upon request of
the Indenture Trustee, the Issuer will execute and deliver such further
instruments and do such further acts as may be reasonably necessary or proper to
carry out more effectively the purpose of this Indenture.
ARTICLE IV.
SATISFACTION AND DISCHARGE
SECTION 4.01. Satisfaction and Discharge of Indenture. This
Indenture shall cease to be of further effect with respect to the Notes except
as to (i) rights of registration of transfer and exchange, (ii) substitution of
mutilated, destroyed, lost or stolen Notes, (iii) rights of Noteholders to
receive payments of principal thereof and interest thereon, (iv) Sections 3.03,
3.04, 3.05, 3.08, 3.10, 3.11, 3.12, 3.13, 3.15, 3.16 and 3.18, (v) the rights,
obligations and immunities of the Indenture Trustee hereunder (including the
rights of the Indenture Trustee under Section 6.07 and the obligations of the
Indenture Trustee under Section 4.02) and (vi) the rights of Noteholders as
28
beneficiaries hereof with respect to the property so deposited with the
Indenture Trustee payable to all or any of them, and the Indenture Trustee, on
demand of and at the expense of the Issuer, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture with respect to the
Notes, when
(A) either:
(1) all Notes theretofore authenticated and delivered
(other than (i) Notes that have been destroyed, lost or stolen
and that have been replaced or paid as provided in Section
2.06 and (ii) Notes for the payment of which money has
theretofore been deposited in trust or segregated and held in
trust by the Issuer and thereafter repaid to the Issuer or
discharged from such trust, as provided in Section 3.03) have
been delivered to the Indenture Trustee for cancellation; or
(2) all Notes not theretofore delivered to the
Indenture Trustee for cancellation
a. have become due and payable,
b. will become due and payable at the Class B Final
Scheduled Payment Date within one year or
c. are to be called for redemption within one year
under arrangements satisfactory to the Indenture
Trustee for the giving of notice of redemption by the
Indenture Trustee in the name, and at the expense, of
the Issuer;
and the Issuer, in the case of a, b, or c above, has
irrevocably deposited or caused to be irrevocably
deposited with the Indenture Trustee cash or direct
obligations of or obligations guaranteed by the
United States of America (that will mature prior to
the date such amounts are payable), in trust for such
purpose, in an amount sufficient to pay and discharge
the entire indebtedness on such Notes not theretofore
delivered to the Indenture Trustee for cancellation
when due to the applicable Final Scheduled Payment
Date or Redemption Date (if Notes shall have been
called for redemption pursuant to Section 10.01), as
the case may be;
(B) the Issuer has paid or caused to be paid all
other sums payable hereunder by the Issuer
including, but not limited to, fees and
expenses due to the Indenture Trustee; and
29
(C) the Issuer has delivered to the Indenture
Trustee an Officer's Certificate, an Opinion
of Counsel and (if required by the TIA or
the Indenture Trustee) an Independent
Certificate from a firm of certified public
accountants, each meeting the applicable
requirements of Section 11.01(a) and,
subject to Section 11.02, each stating that
all conditions precedent herein provided for
relating to the satisfaction and discharge
of this Indenture have been complied with.
SECTION 4.02. Application of Trust Money. All moneys deposited
with the Indenture Trustee pursuant to Section 4.01 shall be held in trust and
applied by it in accordance with the provisions of the Notes and this Indenture
to the payment, either directly or through any Paying Agent, as the Indenture
Trustee may determine, to the Holders of the particular Notes for the payment or
redemption of which such moneys have been deposited with the Indenture Trustee,
of all sums due and to become due thereon for principal and interest.
SECTION 4.03. Repayment of Moneys Held by Paying Agent. In
connection with the satisfaction and discharge of this Indenture with respect to
the Notes, all moneys then held by any Paying Agent other than the Indenture
Trustee under the provisions of this Indenture with respect to such Notes shall,
upon written demand of the Issuer, be paid to the Indenture Trustee to be held
and applied according to Section 3.03; and thereupon, such Paying Agent shall be
released from all further liability with respect to such moneys.
SECTION 4.04. Release of Collateral. Subject to Section 11.01
and the terms of the Basic Documents, the Indenture Trustee shall release
property from the lien of this Indenture only upon receipt by it of an Issuer
Request accompanied by an Officer's Certificate, an Opinion of Counsel and
Independent Certificates in accordance with TIA ss. 314(c) and 314(d)(1) or an
Opinion of Counsel in lieu of such Independent Certificates to the effect that
the TIA does not require any such Independent Certificates.
ARTICLE V.
REMEDIES
SECTION 5.01. Events of Default. "Event of Default", wherever
used herein, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
30
(i) default in the payment of any interest on any
Note of the Controlling Class when the same becomes due and
payable, and such default shall continue for a period of five
days;
(ii) default in the payment of the principal of or
any installment of the principal of any Note when the same
becomes due and payable;
(iii) default in the observance or performance of any
representation, warranty, covenant or agreement of the Issuer
made in this Indenture (other than a covenant or agreement, a
default in the observance or performance of which is elsewhere
in this Section specifically dealt with) or in any certificate
or other writing delivered pursuant hereto or in connection
herewith proving to have been incorrect in any material
respect as of the time when the same shall have been made, and
such default shall continue or not be cured, or the
circumstance or condition in respect of which such
misrepresentation or warranty was incorrect shall not have
been eliminated or otherwise cured, for a period of 30 days
after there shall have been given, by registered or certified
mail, to the Issuer by the Indenture Trustee or to the Issuer
and the Indenture Trustee by the Holders of at least 25% of
the Outstanding Amount of the Notes of the Controlling Class,
a written notice specifying such default or incorrect
representation or warranty and requiring it to be remedied and
stating that such notice is a notice of Default hereunder;
(iv) the filing of a decree or order for relief by a
court having jurisdiction in the premises in respect of the
Issuer or any substantial part of the Trust Estate in an
involuntary case under any applicable federal or state
bankruptcy, insolvency or other similar law now or hereafter
in effect, or the appointment of a receiver, liquidator,
assignee, custodian, trustee, sequestrator or similar official
of the Issuer or for any substantial part of the Trust Estate,
or the ordering of the winding-up or liquidation of the
Issuer's affairs, and such decree or order shall remain
unstayed and in effect for a period of 60 consecutive days; or
(v) the commencement by the Issuer of a voluntary
case under any applicable federal or state bankruptcy,
insolvency or other similar law now or hereafter in effect, or
the consent by the Issuer to the entry of an order for relief
in an involuntary case under any such law, or the consent by
the Issuer to the appointment of or taking of possession by a
receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official of the Issuer or for any
substantial part of the Trust Estate, or the making by the
Issuer of any general assignment for the benefit of creditors,
or the failure by the Issuer generally to pay its debts as
such debts become due, or the taking of any action by the
Issuer in furtherance of any of the foregoing.
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The Issuer shall promptly deliver to the Indenture Trustee written notice in the
form of an Officer's Certificate of any event that with the giving of notice and
the lapse of time would become an Event of Default under clause (iii), its
status and what action the Issuer is taking or proposes to take with respect
thereto.
SECTION 5.02. Acceleration of Maturity; Rescission and
Annulment.
(a) If an Event of Default shall occur and be continuing, then
and in every such case the Indenture Trustee may, or the Indenture Trustee as
directed in writing by the Holders of Notes representing not less than a
majority of the Outstanding Amount of the Notes of the Controlling Class shall,
declare all the Notes to be then immediately due and payable, by a notice in
writing to the Issuer (and to the Indenture Trustee if given by Noteholders),
and upon any such declaration the Outstanding Amount of such Notes, together
with accrued and unpaid interest thereon through the date of acceleration, shall
become immediately due and payable as provided in the Notes set forth in Exhibit
▇-▇, ▇▇▇▇▇▇▇ ▇-▇, Exhibit ▇-▇, ▇▇▇▇▇▇▇ ▇-▇ and Exhibit A-5. Notwithstanding
anything to the contrary in this paragraph (a), if an Event of Default specified
in clauses (iv) or (v) of Section 5.01 shall have occurred and be continuing the
Notes shall become immediately due and payable at par, together with accrued
interest thereon.
(b) [Reserved]
(c) At any time after such declaration of acceleration of
maturity has been made and before a judgment or decree for payment of the money
due has been obtained by the Indenture Trustee as hereinafter provided in this
Article V provided, the Holders of Notes representing a majority of the
Outstanding Amount of the Notes of the Controlling Class, by written notice to
the Issuer and the Indenture Trustee, may rescind and annul such declaration and
its consequences if:
(i) the Issuer has paid or deposited with the
Indenture Trustee a sum sufficient to pay:
A. all payments of principal of and interest
on the Notes and all other amounts that would then be
due hereunder or upon such Notes if the Event of
Default giving rise to such acceleration had not
occurred; and
B. all sums paid by the Indenture Trustee
hereunder and the reasonable compensation, expenses
and disbursements of the Indenture Trustee and its
agents and counsel and the reasonable compensation,
expenses and disbursements of the Owner Trustee and
its agents and counsel; and
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(ii) all Events of Default, other than the nonpayment
of the principal of the Notes that has become due solely by
such acceleration, have been cured or waived as provided in
Section 5.12.
No such rescission shall affect any subsequent default or impair any right
consequent thereto.
SECTION 5.03. Collection of Indebtedness and Suits for
Enforcement by Indenture Trustee.
(a) The Issuer covenants that if (i) a default is made in the
payment of any interest on any Note when the same becomes due and payable, and
such default continues for a period of five days or, (ii) default is made in the
payment of the principal of or any installment of the principal of any Note when
the same becomes due and payable, the Issuer will, upon demand of the Indenture
Trustee, pay to it, for the benefit of the Holders of the Notes, the entire
amount then due and payable on such Notes in respect of principal and interest,
with interest on the overdue principal and, to the extent payment at such rate
of interest shall be legally enforceable, on overdue installments of interest at
the related Interest Rate and, in addition thereto, such further amount as shall
be sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses and disbursements of the Indenture Trustee and
its agents and counsel.
(b) In case the Issuer shall fail forthwith to pay such
amounts upon such demand, the Indenture Trustee, in its own name and as trustee
of an express trust, may institute a Proceeding for the collection of the sums
so due and unpaid, and may prosecute such Proceeding to judgment or final
decree, and may enforce the same against the Issuer or other obligor on such
Notes and collect in the manner provided by law out of the Trust Estate or the
property of any other obligor on such Notes, wherever situated, the moneys
adjudged or decreed to be payable.
(c) If an Event of Default occurs, the Indenture Trustee may,
as more particularly provided in Section 5.04, in its discretion or shall at the
directions of the Holders of at least a majority of the Outstanding Amount of
the Notes of the Controlling Class proceed to protect and enforce its rights and
the rights of the Noteholders, by such appropriate Proceedings as the Indenture
Trustee or the Indenture Trustee at the direction of the Holders of at least a
majority of the Outstanding Amount of the Notes of the Controlling Class shall
reasonably deem most effective to protect and enforce any such rights, whether
for the specific enforcement of any covenant or agreement in this Indenture or
in aid of the exercise of any power granted herein, or to enforce any other
proper remedy or legal or equitable right vested in the Indenture Trustee by
this Indenture or by law.
(d) In case there shall be pending, relative to the Issuer or
any other obligor on the Notes or any Person having or claiming an ownership
interest in the Trust Estate, Proceedings under Title 11 of the United States
Code or any other applicable federal or state bankruptcy, insolvency or other
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similar law, or in case a receiver, assignee or trustee in bankruptcy or
reorganization, or liquidator, sequestrator or similar official shall have been
appointed for or taken possession of the Issuer or its property or such other
obligor or Person, or in case of any other comparable Proceedings relative to
the Issuer or other obligor on the Notes, or to the creditors or property of the
Issuer or such other obligor, the Indenture Trustee, irrespective of whether the
principal of any Notes shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Indenture Trustee shall
have made any demand pursuant to the provisions of this Section, shall be
entitled and empowered, by intervention in such Proceedings or otherwise:
(i) to file and prove a claim or claims for the
entire amount of principal and interest owing and unpaid in
respect of the Notes and to file such other papers or
documents as may be necessary or advisable in order to have
the claims of the Indenture Trustee (including any claim for
reasonable compensation to the Indenture Trustee and each
predecessor Indenture Trustee, and their respective agents,
attorneys and counsel, and for reimbursement of reasonable
out-of-pocket expenses and liabilities incurred, by the
Indenture Trustee and each predecessor Indenture Trustee,
except as a result of negligence or bad faith) and of the
Noteholders allowed in such Proceedings;
(ii) unless prohibited by applicable law or
regulation, to vote on behalf of the Holders of Notes in any
election of a trustee, a standby trustee or a Person
performing similar functions in any such Proceedings;
(iii) to collect and receive any moneys or other
property payable or deliverable on any such claims and to
distribute all amounts received with respect to the claims of
the Noteholders and of the Indenture Trustee on their behalf;
and
(iv) to file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have
the claims of the Indenture Trustee or the Holders of Notes
allowed in any Proceedings relative to the Issuer, its
creditors or its property;
and any trustee, receiver, liquidator, custodian or other similar official in
any such Proceeding is hereby authorized by each of such Noteholders to make
payments to the Indenture Trustee and, in the event that the Indenture Trustee
shall consent to the making of payments directly to such Noteholders, to pay to
the Indenture Trustee such amounts as shall be sufficient to cover reasonable
compensation to the Indenture Trustee, each predecessor Indenture Trustee and
their respective agents, attorneys and counsel, and all other expenses and
liabilities incurred by the Indenture Trustee and each predecessor Indenture
Trustee except as a result of negligence or bad faith.
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(e) Nothing herein contained shall be deemed to authorize the
Indenture Trustee to authorize or consent to or vote for or accept or adopt on
behalf of any Noteholder any plan of reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any Holder thereof or to
authorize the Indenture Trustee to vote in respect of the claim of any
Noteholder in any such proceeding except, as aforesaid, to vote for the election
of a trustee in bankruptcy or similar Person.
(f) All rights of action and of asserting claims under this
Indenture, or under any of the Notes, may be enforced by the Indenture Trustee
without the possession of any of the Notes or the production thereof in any
Proceedings relative thereto, and any such Proceedings instituted by the
Indenture Trustee shall be brought in its own name as trustee of an express
trust, and any recovery of judgment, subject to the payment of the expenses,
disbursements and compensation of the Indenture Trustee, each predecessor
Indenture Trustee and their respective agents and attorneys, shall be for the
ratable benefit of the Holders of the Notes.
(g) In any Proceedings brought by the Indenture Trustee (and
also any Proceedings involving the interpretation of any provision of this
Indenture to which the Indenture Trustee shall be a party), the Indenture
Trustee shall be held to represent all the Holders of the Notes, and it shall
not be necessary to make any Noteholder a party to any such Proceedings.
SECTION 5.04. Remedies; Priorities.
(a) If an Event of Default shall have occurred and be
continuing, the Indenture Trustee may do one or more of the following (subject
to Section 5.05):
(i) institute Proceedings in its own name and as
trustee of an express trust for the collection of all amounts
then payable on the Notes or under this Indenture with respect
thereto, whether by declaration or otherwise, enforce any
judgment obtained and collect from the Issuer and any other
obligor on such Notes moneys adjudged due;
(ii) institute Proceedings from time to time for the
complete or partial foreclosure of this Indenture with respect
to the Trust Estate;
(iii) exercise any remedies of a secured party under
the UCC and take any other appropriate action to protect and
enforce the rights and remedies of the Indenture Trustee and
the Holders of the Notes; and
(iv) sell the Trust Estate or any portion thereof or
rights or interest therein, at one or more public or private
sales called and conducted in any manner permitted by law;
provided that Indenture Trustee may not sell or otherwise liquidate the Trust
Estate following an Event of Default unless:
35
(A) the Event of Default is of the type
described in Section 5.01(i) or (ii); or
(B) with respect to an Event of Default
described in Section 5.01 (iii);
(i) the Noteholders of all Outstanding Notes
consent thereto; or
(ii) the proceeds of such sale or
liquidation are sufficient to pay in full the
principal of and accrued interest on the Outstanding
Notes.
(C) with respect to any Event of Default
described in Section 5.01 (iv) and (v):
(i) the Noteholders of Notes evidencing 100%
of the principal amount of the Controlling Class of
Notes consent thereto; or
(ii) the proceeds of such sale or
liquidation are sufficient to pay in full the
principal of and the accrued interest on the
Outstanding Notes; or
(iii) the Indenture Trustee
(x) determines (but shall have no
obligation to make such determination) that
the Trust Estate will not continue to
provide sufficient funds for the payment of
principal of and interest on the Notes as
they would have become due if the Notes had
not been declared due and payable; and
(y) the Indenture Trustee obtains
the consent of Noteholders of Notes
evidencing not less than 66 2/3% of the
principal amount of the Controlling Class of
Notes; or
In determining such sufficiency or insufficiency with respect to clause (B)(ii)
and (C)(ii) or (C)(iii)(x), Indenture Trustee may, but need not, obtain at the
Issuer's expense, and rely upon an opinion of an Independent investment banking
or accounting firm of national reputation as to the feasibility of such proposed
action and as to the sufficiency of the Trust Estate for such purpose.
(b) (i) Notwithstanding the provisions of Section 8.02,
following the occurrence and during the continuation of an Event of Default
specified in Section 5.01(i), 5.01(ii), 5.01(iv) or 5.01(v) that has resulted in
an acceleration of the Notes (or following the occurrence of any such event
36
after an Event of Default specified in Section 5.01(iii) has occurred and the
Trust Estate has been liquidated), if Indenture Trustee collects any money or
property, it shall pay out such money or property (and other amounts including
amounts held on deposit in the Reserve Account) held as Collateral for the
benefit of the Noteholders, net of liquidation costs associated with the sale of
the Trust Estate (inclusive of any amount owing to the Indenture Trustee under
Section 6.07), in the following order:
FIRST: to the Servicer for due and unpaid Servicing Fees;
SECOND: to Class A Noteholders for amounts due and unpaid on
the Class A Notes in respect of interest, ratably, without
preference or priority of any kind, according to the amounts
due and payable on the Class A Notes in respect of interest;
THIRD: to Holders of the Class A-1 Notes for amounts due and
unpaid on the Class A-1 Notes in respect of principal,
ratably, without preference or priority of any kind, according
to the amounts due and payable on the Class A-1 Notes in
respect of principal, until the Outstanding Amount of the
Class A-1 Notes is reduced to zero;
FOURTH: to Holders of the Class A-2 Notes, Class A-3 Notes and
Class A-4 Notes for amounts due and unpaid on the Class A-2
Notes, Class A-3 Notes and Class A-4 Notes in respect of
principal, ratably, without preference or priority of any
kind, according to the amounts due and payable on the Class
A-2 Notes, Class A-3 Notes and Class A-4 Notes in respect of
principal, until the Outstanding Amount of the Class A-2
Notes, Class A-3 Notes and Class A-4 Notes is reduced to zero;
FIFTH: to Holders of the Class B Notes for amounts due and
unpaid on the Class B Notes in respect of interest, ratably,
without preference or priority of any kind, according to the
amounts due and payable on the Class B Notes in respect of
interest;
SIXTH: to Holders of the Class B Notes for amounts due and
unpaid on the Class B Notes in respect of principal, ratably,
without preference or priority of any kind, according to the
amounts due and payable on the Class B Notes in respect of
principal, until the Outstanding Amount of the Class B Notes
is reduced to zero;
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SEVENTH: to the Indenture Trustee, any amounts due under
Section 6.07; and to the Owner Trustee, any amounts due under
Article VIII of the Trust Agreement; and
EIGHTH: to the Certificate Distribution Account, for
distribution to the Certificateholders.
The Indenture Trustee may fix a Record Date and Payment Date for any payment to
Noteholders pursuant to this Section. At least 15 days before such Record Date,
the Issuer shall mail to each Noteholder and the Indenture Trustee a notice that
states the Record Date, the Payment Date and the amount to be paid.
(ii) Except as provided in Section 5.04(b)(i), the
Indenture Trustee shall make all payments and distributions of
the Trust Estate in accordance with Section 8.02.
SECTION 5.05. Optional Preservation of the Receivables. If the
Notes have been declared to be due and payable under Section 5.02 following an
Event of Default, and such declaration and its consequences have not been
rescinded and annulled, the Indenture Trustee may, but need not, elect to
maintain possession of the Trust Estate. It is the desire of the parties hereto
and the Noteholders that there be at all times sufficient funds for the payment
of principal of and interest on the Notes, and the Indenture Trustee shall take
such desire into account when determining whether or not to maintain possession
of the Trust Estate. In determining whether or not to maintain possession of the
Trust Estate, the Indenture Trustee may, at the expense of the Issuer and paid
in the priority set forth in Section 5.06(b) of the Sale and Servicing
Agreement, but need not, obtain and conclusively rely upon an opinion of an
Independent investment banking or accounting firm of national reputation as to
the feasibility of such proposed action and as to the sufficiency of the Trust
Estate for such purpose.
SECTION 5.06. Limitation of Suits. No Holder of any Note shall
have any right to institute any Proceeding, judicial or otherwise, with respect
to this Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless:
(i) such Holder has previously given written notice
to the Indenture Trustee of a continuing Event of Default;
(ii) the Holders of not less than 25% of the
Outstanding Amount of the Notes of the Controlling Class have
made written request to the Indenture Trustee to institute
such Proceeding in respect of such Event of Default in its own
name as Indenture Trustee hereunder;
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(iii) such Holder or Holders have offered to the Indenture Trustee
reasonable indemnity against the costs, expenses and
liabilities that may be incurred in complying with such
request;
(iv) the Indenture Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute
such Proceedings; and
(v) no direction inconsistent with such written request has been
given to the Indenture Trustee during such 60 day period by
the Holders of a majority of the Outstanding Amount of the
Notes of the Controlling Class.
It is understood and intended that no one or more Holders of Notes shall have
any right in any manner whatsoever by virtue of, or by availing of, any
provision of this Indenture to affect, disturb or prejudice the rights of any
other Holders of Notes or to obtain or to seek to obtain priority or preference
over any other Holders or to enforce any right under this Indenture, except in
the manner herein provided.
In the event the Indenture Trustee shall receive conflicting
or inconsistent requests and indemnity from two or more groups of Holders of
Notes pursuant to this Section, each representing less than a majority of the
Outstanding Amount of the Notes of the Controlling Class, the Indenture Trustee
shall act at the direction of the group representing the greater percentage of
the Outstanding Amount of Notes and if there is no such group then in its sole
discretion may determine what action, if any, shall be taken, notwithstanding
any other provisions of this Indenture.
SECTION 5.07. Unconditional Rights of Noteholders To Receive
Principal and Interest. Notwithstanding any other provisions in this Indenture,
the Holder of any Note shall have the right, which is absolute and
unconditional, to receive payment of the principal of and interest, if any, on
such Note on or after the respective due dates thereof expressed in such Note or
in this Indenture (or, in the case of redemption, on or after the Redemption
Date) and to institute suit for the enforcement of any such payment, and such
right shall not be impaired without the consent of such Holder.
SECTION 5.08. Restoration of Rights and Remedies. If the
Indenture Trustee or any Noteholder has instituted any Proceeding to enforce any
right or remedy under this Indenture and such Proceeding has been discontinued
or abandoned for any reason or has been determined adversely to the Indenture
Trustee or to such Noteholder, then and in every such case the Issuer, the
Indenture Trustee and the Noteholders shall, subject to any determination in
such Proceeding, be restored severally and respectively to their former
positions hereunder, and thereafter all rights and remedies of the Indenture
Trustee and the Noteholders shall continue as though no such Proceeding had been
instituted.
39
SECTION 5.09. Rights and Remedies Cumulative. No right or
remedy herein conferred upon or reserved to the Indenture Trustee or to the
Noteholders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 5.10. Delay or Omission Not a Waiver. No delay or
omission of the Indenture Trustee, or any Holder of any Note to exercise any
right or remedy accruing upon any Default or Event of Default shall impair any
such right or remedy or constitute a waiver of any such Default or Event of
Default or an acquiescence therein. Every right and remedy given by this Article
V or by operation of law to the Indenture Trustee or to the Noteholders may be
exercised from time to time, and as often as may be deemed expedient, by the
Indenture Trustee or the Noteholders, as the case may be.
SECTION 5.11. Control by the Controlling Class of Noteholders.
The Holders of a majority of the Outstanding Amount of the Notes of the
Controlling Class shall have the right to direct the time, method and place of
conducting any Proceeding for any remedy available to the Indenture Trustee with
respect to the Notes or exercising any trust or power conferred on the Indenture
Trustee; provided that:
(i) such direction shall not be in conflict with any
rule of law or with this Indenture;
(ii) subject to the express terms of Section 5.04,
any direction to the Indenture Trustee to sell or liquidate
the Trust Estate shall be by Holders of Notes representing not
less than 100% of the Outstanding Amount of the Notes of the
Controlling Class;
(iii) if the conditions set forth in Section 5.05
have been satisfied and the Indenture Trustee elects to retain
the Trust Estate pursuant to such Section, then any written
direction to the Indenture Trustee by Holders of Notes
representing less than 100% of the Outstanding Amount of the
Notes to sell or liquidate the Trust Estate shall be of no
force and effect; and
(iv) the Indenture Trustee may take any other action
deemed proper by the Indenture Trustee that is not
inconsistent with such direction.
Notwithstanding the rights of Noteholders set forth in this
Section, subject to Section 6.01, the Indenture Trustee need not take any action
that it determines might involve it in liability or might materially adversely
affect the rights of any Noteholders not consenting to such action.
40
SECTION 5.12. Waiver of Past Defaults. Prior to the
declaration of the acceleration of the maturity of the Notes as provided in
Section 5.02, the Holders of Notes of not less than a majority of the
Outstanding Amount of the Notes of the Controlling Class may waive any past
Default or Event of Default and its consequences except a Default (a) in the
deposit of collections or other required amounts, any required payment from
amounts held in any trust account in respect of amounts due on the Notes, (b) in
payment of principal of, interest or amounts due on any of the Notes or (c) in
respect of a covenant or provision hereof that cannot be modified or amended
without the consent of the Holder of each Note. In the case of any such waiver,
the Issuer, the Indenture Trustee and the Holders of the Notes shall be restored
to their former positions and rights hereunder, respectively; but no such waiver
shall extend to any subsequent or other Default or impair any right consequent
thereto.
Upon any such waiver, such Default shall cease to exist and be
deemed to have been cured and not to have occurred, and any Event of Default
arising therefrom shall be deemed to have been cured and not to have occurred,
for every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other Default or Event of Default or impair any right consequent
thereto.
SECTION 5.13. Undertaking for Costs. All parties to this
Indenture agree, and each Holder of a Note by such Holder's acceptance thereof
shall be deemed to have agreed, that any court may in its discretion require, in
any suit for the enforcement of any right or remedy under this Indenture, or in
any suit against the Indenture Trustee for any action taken, suffered or omitted
by it as Indenture Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to (a) any suit instituted by the
Indenture Trustee, (b) any suit instituted by any Noteholder, or group of
Noteholders, in each case holding in the aggregate more than 10% of the
Outstanding Amount of the Notes (or in the case of a right or remedy under this
Indenture which is instituted by the Controlling Class, more than 10% of the
Outstanding Amount of the Notes of the Controlling Class) or (c) any suit
instituted by any Noteholder for the enforcement of the payment of principal of
or interest on any Note on or after the respective due dates expressed in such
Note and in this Indenture (or, in the case of redemption, on or after the
Redemption Date)
SECTION 5.14. Waiver of Stay or Extension Laws. The Issuer
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead or in any manner whatsoever claim or take the benefit
or advantage of, any stay or extension law wherever enacted, now or at any time
hereafter in force, that may affect the covenants or the performance of this
Indenture; and the Issuer (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and covenants that it
will not hinder, delay or impede the execution of any power herein granted to
the Indenture Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
41
SECTION 5.15. Action on Notes. The Indenture Trustee's right
to seek and recover judgment on the Notes or under this Indenture shall not be
affected by the seeking, obtaining or application of any other relief under or
with respect to this Indenture. Neither the lien of this Indenture nor any
rights or remedies of the Indenture Trustee or the Noteholders shall be impaired
by the recovery of any judgment by the Indenture Trustee against the Issuer or
by the levy of any execution under such judgment upon any portion of the Trust
Estate or upon any of the assets of the Issuer. Any money or property collected
by the Indenture Trustee shall be applied in accordance with Section 5.04(b).
SECTION 5.16. Performance and Enforcement of Certain
Obligations.
(a) Promptly following a request from the Indenture Trustee to
do so and at the Administrator's expense, the Issuer shall take all such lawful
action as the Indenture Trustee may request to compel or secure the performance
and observance by the Seller or the Servicer, as applicable, of each of their
obligations to the Issuer under or in connection with the Sale and Servicing
Agreement or the Receivables Purchase Agreement, as applicable, and to exercise
any and all rights, remedies, powers and privileges lawfully available to the
Issuer under or in connection with the Sale and Servicing Agreement or the
Receivables Purchase Agreement to the extent and in the manner directed by the
Indenture Trustee, including the transmission of notices of default on the part
of either Seller or the Servicer thereunder and the institution of legal or
administrative actions or proceedings to compel or secure performance by the
Seller or the Servicer of each of their obligations under the Sale and Servicing
Agreement or the Receivables Purchase Agreement; provided, however, nothing
herein shall in any way impose on the Indenture Trustee the duty to monitor the
performance of the Seller or the Servicer of any of their liabilities, duties or
obligations under any Basic Document.
(b) If an Event of Default has occurred, the Indenture Trustee
may, and at the direction (which direction shall be in writing) of the Holders
of not less than a majority of the Outstanding Amount of the Notes of the
Controlling Class shall, exercise all rights, remedies, powers, privileges and
claims of the Issuer against the Seller or the Servicer under or in connection
with the Sale and Servicing Agreement and the Receivables Purchase Agreement
including the right or power to take any action to compel or secure performance
or observance by the Seller or the Servicer, as the case may be, of each of
their obligations to the Issuer thereunder and to give any consent, request,
notice, direction, approval, extension or waiver under the Sale and Servicing
Agreement and the Receivables Purchase Agreement, as the case may be, and any
right of the Issuer to take such action shall be suspended.
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ARTICLE VI.
THE INDENTURE TRUSTEE
SECTION 6.01. Duties of Indenture Trustee.
(a) If an Event of Default has occurred and is continuing of
which a Responsible Officer of the Indenture Trustee has actual knowledge, the
Indenture Trustee shall exercise the rights and powers vested in it by this
Indenture and use the same degree of care and skill in their exercise as a
prudent person would exercise or use under the circumstances in the conduct of
such person's own affairs.
(b) Except during the continuance of an Event of Default:
(i) the Indenture Trustee undertakes to perform such
duties and only such duties as are specifically set forth in
this Indenture and no implied covenants or obligations shall
be read into this Indenture against the Indenture Trustee; and
(ii) in the absence of bad faith or negligence on its
part, the Indenture Trustee may conclusively rely, as to the
truth of the statements and the correctness of the opinions
expressed therein, upon the face value of the certificates,
reports, resolutions, documents, orders, opinions or other
instruments furnished to the Indenture Trustee and conforming
to the requirements of this Indenture; provided, however, that
the Indenture Trustee shall not be responsible for the
accuracy or content of any such resolution, certificate,
statement, opinion, report, document, order or other
instrument; provided, further, however, the Indenture Trustee
shall examine the certificates and opinions to determine
whether or not they conform to the requirements of this
Indenture. If any such instrument is found not to conform in
any material respect to the requirements of this Indenture,
the Indenture Trustee shall notify the Noteholders of such
instrument in the event that the Indenture Trustee, after so
requesting, does not receive a satisfactorily corrected
instrument.
(c) The Indenture Trustee may not be relieved from liability
for its own negligent action, its own negligent failure to act or its own
willful misconduct or bad faith, except that:
(i) this paragraph does not limit the effect of
paragraph (b) of this Section;
(ii) the Indenture Trustee shall not be liable for
any error of judgment made in good faith by a Responsible
Officer unless it is proved that the Indenture Trustee was
negligent in ascertaining the pertinent facts; and
43
(iii) the Indenture Trustee shall not be liable with
respect to any action it takes or omits to take in good faith
in accordance with a direction received by it pursuant to the
terms of this Indenture or any other Basic Documents.
(d) [Reserved]
(e) The Indenture Trustee shall not be liable for indebtedness
evidenced by or arising under any of the Basic Documents, including principal of
or interest on the Notes, or interest on any money received by it except as the
Indenture Trustee may agree in writing with the Issuer.
(f) [Reserved]
(g) No provision of this Indenture shall require the Indenture
Trustee to advance, expend or risk its own funds or otherwise incur financial
liability in the performance of any of its duties hereunder or in the exercise
of any of its rights or powers, if it shall have reasonable grounds to believe
that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
(h) Every provision of this Indenture that in any way relates
to the conduct or affecting the liability of or affording protection to the
Indenture Trustee shall be subject to the provisions of this Section and to the
provisions of the TIA.
(i) Except as otherwise specifically set forth in the Sale and
Servicing Agreement, in no event shall the Indenture Trustee be required to
perform, or be responsible for the manner of performance of, any of the
obligations of the Servicer or any other party under the Sale and Servicing
Agreement.
(j) The Indenture Trustee shall have no duty (A) to see to any
recording, filing, or depositing of this Indenture or any agreement referred to
herein or any financing statement or continuation statement evidencing a
security interest, or to see to the maintenance of any such recording or filing
or depositing or to any rerecording, refiling or redepositing of any thereof,
(B) to see to any insurance, or (C) to see to the payment or discharge of any
tax, assessment, or other governmental charge or any lien or encumbrance of any
kind owing with respect to, assessed or levied against, any part of the Trust
Fund.
For purposes of this Section 6.01 and Section 8.03(c), the
Indenture Trustee, or a Responsible Officer thereof, shall be charged with
actual knowledge of any default or an Event of Default if a Responsible Officer
actually knows of such default or Event of Default or the Indenture Trustee
receives written notice of such default or Event of Default from the Issuer, the
Servicer or Noteholders owning Notes aggregating not less than 10% of the
Outstanding Amount of the Notes. Notwithstanding the foregoing, the Indenture
Trustee shall not be required to take notice and in the absence of such actual
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notice and knowledge, the Indenture Trustee may conclusively assume that there
is no such default or Event of Default.
SECTION 6.02. Rights of Indenture Trustee.
(a) The Indenture Trustee may conclusively rely on the face
value of any document believed by it to be genuine and to have been signed or
presented by the proper person. The Indenture Trustee need not investigate any
fact or matter stated in the document.
(b) Before the Indenture Trustee acts or refrains from acting,
it may require an Officer's Certificate or an Opinion of Counsel from the
appropriate party. The Indenture Trustee shall not be liable for any action it
takes or omits to take in good faith in reliance on an Officer's Certificate or
Opinion of Counsel from the appropriate party. The right of the Indenture
Trustee to perform any discretionary act enumerated in this Indenture or in any
Basic Document shall not be construed as a duty of the Indenture Trustee and the
Indenture Trustee shall not be answerable for other than its negligence, bad
faith or willful misconduct in the performance of such discretionary act.
(c) The Indenture Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by or
through agents or attorneys or a custodian or nominee and the Indenture Trustee
shall not be responsible for any misconduct or negligence on the part of any
such agent, attorney or custodian appointed by the Indenture Trustee with due
care.
(d) The Indenture Trustee shall not be liable for any action
it takes or omits to take in good faith that it believes to be authorized or
within its rights or powers; provided, that the Indenture Trustee's conduct does
not constitute willful misconduct, negligence or bad faith.
(e) The Indenture Trustee may consult, at the Issuer's expense
and paid in the priority set forth in Section 5.06(b) of the Sale and Servicing
Agreement, with counsel, and the written advice or opinion of counsel with
respect to legal matters relating to this Indenture and the Notes shall be full
and complete authorization and protection from liability in respect to any
action taken, omitted or suffered by it hereunder in good faith and in
accordance with the advice or opinion of such counsel.
(f) In the event that the Indenture Trustee is also acting as
Paying Agent, Note Registrar or collateral agent, the rights and protections
afforded to the Indenture Trustee pursuant to this Article 6 shall be afforded
to such Paying Agent, Note Registrar or collateral agent.
(g) The Indenture Trustee shall be under no obligation to
exercise any of the trusts or powers vested in it by this Indenture or to
institute, conduct or defend any litigation hereunder or in relation hereto at
the request, order or direction of any of the Noteholders, pursuant to the
provisions of this Indenture, unless such Noteholders shall have offered to the
45
Indenture Trustee reasonable security or indemnity against the costs, expenses
and liabilities which may be incurred therein or thereby.
(h) The right of the Indenture Trustee to perform any
discretionary act enumerated in this Indenture shall not be construed as a duty,
and the Indenture Trustee shall not be answerable for other than its negligence
or willful misconduct in the performance of such act.
(i) The Indenture Trustee shall not be required to give any
bond or surety in respect of the powers granted hereunder.
SECTION 6.03. Individual Rights of Indenture Trustee. The
Indenture Trustee in its individual or any other capacity may become the owner
or pledgee of Notes and may otherwise deal with the Issuer or its Affiliates
with the same rights it would have if it were not Indenture Trustee. Any Paying
Agent, Note Registrar, co-registrar or co-paying agent may do the same with like
rights. However, the Indenture Trustee must comply with Sections 6.11 and 6.13.
SECTION 6.04. Indenture Trustee's Disclaimer. The Indenture
Trustee shall not be responsible for and makes no representation as to the
validity or adequacy of this Indenture, the Trust Estate or the Notes, it shall
not be accountable for the Issuer's use of the proceeds from the Notes, and it
shall not be responsible for any statement of the Issuer in the Indenture, any
Basic Document, any document issued in connection with the sale of the Notes or
the Notes other than the Indenture Trustee's certificate of authentication.
SECTION 6.05. Notice of Defaults. If a Default occurs and is
continuing and if it is actually known to a Responsible Officer of the Indenture
Trustee, the Indenture Trustee shall mail to each Noteholder notice of the
Default within 30 days after it occurs. Except in the case of a Default in
payment of principal of or interest on any Note (including payments pursuant to
the mandatory redemption provisions of such Note), the Indenture Trustee may
withhold the notice to Noteholders if and so long as a committee of its
Responsible Officers in good faith determines that withholding the notice is in
the best interests of Noteholders.
SECTION 6.06. Reports by Indenture Trustee to Holders. The
Indenture Trustee shall deliver to each Noteholder such information as may be
required to enable such holder to prepare its federal and state income tax
returns.
SECTION 6.07. Compensation and Indemnity. The Issuer shall
cause the Administrator to pay to the Indenture Trustee from time to time
reasonable compensation for its services. The Issuer shall cause the
Administrator to reimburse the Indenture Trustee for all reasonable
out-of-pocket expenses incurred or made by it, including costs of collection, in
addition to the compensation for its services. Such expenses shall include the
reasonable out-of-pocket compensation and expenses, disbursements and advances
of the Indenture Trustee's agents, counsel, accountants and experts. The Issuer
46
shall cause the Administrator to indemnify the Indenture Trustee against any and
all loss, liability or expense (including attorneys' fees and expenses) incurred
by it in connection with the administration of this trust and the performance of
its duties hereunder or under the Sale and Servicing Agreement or under any
other Basic Document. The Indenture Trustee shall notify the Issuer and the
Administrator promptly of any claim for which it may seek indemnity. Failure by
the Indenture Trustee to so notify the Issuer and the Administrator shall not
relieve the Issuer or the Administrator of its obligations hereunder if no
prejudice to the Issuer or the Administrator shall have resulted from such
failure. The Issuer shall, or shall cause the Administrator to, defend any such
claim, and the Indenture Trustee may have separate counsel and the Issuer shall,
or shall cause the Administrator to, pay the fees and expenses of such counsel.
Neither the Issuer nor the Administrator need reimburse any expense or indemnify
against any loss, liability or expense incurred by the Indenture Trustee through
the Indenture Trustee's own willful misconduct, negligence or bad faith.
The Issuer's payment obligations to the Indenture Trustee and
the Administrator's indemnities to the Indenture Trustee pursuant to this
Section shall survive the discharge of this Indenture or the earlier resignation
or removal of the Indenture Trustee. When the Indenture Trustee incurs expenses
after the occurrence of a Default specified in Section 5.01(iv) or (v) with
respect to the Issuer, the expenses are intended to constitute expenses of
administration under Title 11 of the United States Code or any other applicable
federal or State bankruptcy, insolvency or similar law.
SECTION 6.08. Replacement of Indenture Trustee. No resignation
or removal of the Indenture Trustee and no appointment of a successor Indenture
Trustee shall become effective until the acceptance of appointment by the
successor Indenture Trustee pursuant to this Section. The Indenture Trustee may
resign at any time by so notifying the Issuer and each Rating Agency. The
Holders of a majority in Outstanding Amount of the Notes of the Controlling
Class may remove the Indenture Trustee by notifying the Indenture Trustee if:
(i) the Indenture Trustee fails to comply with
Section 6.11;
(ii) the Indenture Trustee is adjudged a bankrupt or
insolvent;
(iii) a receiver or other public officer takes charge
of the Indenture Trustee or its property;
(iv) the Indenture Trustee otherwise becomes
incapable of acting; or
(v) the Indenture Trustee breaches any
representation, warranty or covenant made by it under any
Basic Document.
If the Indenture Trustee resigns or is removed or if a vacancy exists in the
office of Indenture Trustee for any reason (the Indenture Trustee in such event
47
being referred to herein as the retiring Indenture Trustee), the Issuer shall
promptly appoint a successor Indenture Trustee.
A successor Indenture Trustee shall deliver a written
acceptance of its appointment to the retiring Indenture Trustee and to the
Issuer. Thereupon the resignation or removal of the retiring Indenture Trustee
shall become effective, and the successor Indenture Trustee shall have all the
rights, powers and duties of the Indenture Trustee under this Indenture. The
retiring Indenture Trustee shall be paid all amounts owed to it upon its
resignation or removal.
The successor Indenture Trustee shall mail a notice of its
succession to Noteholders. The retiring Indenture Trustee shall promptly
transfer all property held by it as Indenture Trustee to the successor Indenture
Trustee. The retiring Indenture Trustee shall not be liable for the acts or
omissions of any Successor Indenture Trustee.
If a successor Indenture Trustee does not take office within
60 days after the retiring Indenture Trustee resigns or is removed, the retiring
Indenture Trustee, the Issuer or the Holders of a majority in Outstanding Amount
of the Notes of the Controlling Class may petition any court of competent
jurisdiction for the appointment of a successor Indenture Trustee.
If the Indenture Trustee fails to comply with Section 6.11,
any Noteholder may petition any court of competent jurisdiction for the removal
of the Indenture Trustee and the appointment of a successor Indenture Trustee.
Notwithstanding the replacement of the Indenture Trustee
pursuant to this Section, the Issuer's and the Administrator's obligations under
Section 6.07 shall continue for the benefit of the retiring Indenture Trustee.
SECTION 6.09. Successor Indenture Trustee by Merger. If the
Indenture Trustee consolidates with, merges or converts into, or transfers all
or substantially all its corporate trust business or assets to, another
corporation or banking association, the resulting, surviving or transferee
corporation without any further act shall be the successor Indenture Trustee;
provided, that such corporation or banking association shall be qualified and
eligible under Section 6.11. The Indenture Trustee shall provide the Rating
Agencies notice of any such transaction.
If at the time such successor or successors by merger,
conversion or consolidation to the Indenture Trustee shall succeed to the trusts
created by this Indenture any of the Notes shall have been authenticated but not
delivered, any such successor to the Indenture Trustee may adopt the certificate
of authentication of any predecessor trustee and deliver such Notes so
authenticated; and if at that time any of the Notes shall not have been
authenticated, any successor to the Indenture Trustee may authenticate such
Notes either in the name of any predecessor hereunder or in the name of the
successor to the Indenture Trustee; and in all such cases such certificates
authenticated by the successor Indenture Trustee shall have the full force and
48
effect for purposes of this Indenture and the Notes as any certificate of
authentication executed and delivered by the predecessor Indenture Trustee.
SECTION 6.10. Appointment of Co-Indenture Trustee or Separate
Indenture Trustee.
(a) Notwithstanding any other provisions of this Indenture, at
any time, for the purpose of meeting any legal requirement of any jurisdiction
in which any part of the Trust Estate may at the time be located, the Indenture
Trustee shall have the power and may execute and deliver all instruments to
appoint one or more Persons to act as a co-trustee or co-trustees, or separate
trustee or separate trustees, of all or any part of the Trust, and to vest in
such Person or Persons, in such capacity and for the benefit of the Noteholders,
such title to the Trust Estate, or any part thereof, and, subject to the other
provisions of this Section, such powers, duties, obligations, rights and trusts
as the Indenture Trustee may consider necessary or desirable. No co-trustee or
separate trustee hereunder shall be required to meet the terms of eligibility as
a successor trustee under Section 6.11 and no notice to Noteholders of the
appointment of any co-trustee or separate trustee shall be required under
Section 6.08.
(b) Every separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions and
conditions:
(i) all rights, powers, duties and obligations
conferred or imposed upon the Indenture Trustee shall be
conferred or imposed upon and exercised or performed by the
Indenture 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
Indenture 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 Indenture 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 Indenture Trustee;
(ii) no trustee hereunder shall be personally liable
by reason of any act or omission of any other trustee
hereunder; and
(iii) the Indenture Trustee may at any time accept
the resignation of or remove any separate trustee or
co-trustee.
(c) Any notice, request or other writing given to the
Indenture 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 Indenture and the conditions of this Article VI. Each separate trustee and
49
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 Indenture Trustee or separately, as may be provided therein,
subject to all the provisions of this Indenture, specifically including every
provision of this Indenture relating to the conduct of, affecting the liability
of, or affording protection to, the Indenture Trustee. Every such instrument
shall be filed with the Indenture Trustee.
(d) Any separate trustee or co-trustee may at any time
constitute the Indenture 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 Indenture 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 Indenture Trustee, to the extent permitted by law,
without the appointment of a new or successor trustee.
SECTION 6.11. Eligibility; Disqualification. The Indenture
Trustee shall at all times satisfy the requirements of TIA ss. 310(a). The
Indenture Trustee shall have a combined capital and surplus of at least
$50,000,000 as set forth in its most recent published annual report of
condition, and the time deposits of the Indenture Trustee shall be rated at
least "A-1" by Standard & Poor's and "Prime-1" by Moody's. The Indenture Trustee
shall comply with TIA ss. 310(b), including the optional provision permitted by
the second sentence of TIA ss. 310(b)(9); provided, however, that there shall be
excluded from the operation of TIA ss. 310(b)(1) any indenture or indentures
under which other securities of the Issuer are outstanding if the requirements
for such exclusion set forth in TIA ss. 310(b)(1) are met.
SECTION 6.12. [Reserved].
SECTION 6.13. Preferential Collection of Claims Against
Issuer. The Indenture Trustee shall comply with TIA ss. 311(a), excluding any
creditor relationship listed in TIA ss. 311(b) An Indenture Trustee who has
resigned or been removed shall be subject to TIA ss. 311(a) to the extent
indicated.
SECTION 6.14. Waiver of Setoffs. The Indenture Trustee hereby
expressly waives any and all rights of setoff that the Indenture Trustee may
otherwise at any time have under applicable law with respect to any Trust
Account and agrees that amounts in the Trust Accounts shall at all times be held
and applied solely in accordance with the provisions hereof and of the other
Basic Documents.
SECTION 6.15. Licenses. The Issuer shall take such action as,
in its reasonable judgment, shall be necessary to maintain the effectiveness of
all sales finance company licenses required under the Maryland Code and all
licenses required under the Pennsylvania Motor Vehicle Sales Finance Act, in
connection with this Indenture and the transactions contemplated hereby until
the lien and security interest of this Indenture shall no longer be in effect in
accordance with the terms hereof.
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ARTICLE VII.
NOTEHOLDERS' LISTS AND REPORTS
SECTION 7.01. Issuer To Furnish Indenture Trustee Names and
Addresses of Noteholders. The Issuer will furnish or cause to be furnished to
the Indenture Trustee (a) not more than five days after the earlier of (i) each
Record Date and (ii) three months after the last Record Date, a list, in such
form as the Indenture Trustee may reasonably require, of the names and addresses
of the Holders of Notes as of such Record Date, and (b) at such other times as
the Indenture Trustee may request in writing, within 30 days after receipt by
the Issuer of any such request, a list of similar form and content as of a date
not more than 10 days prior to the time such list is furnished; provided,
however, that so long as the Indenture Trustee is the Note Registrar, no such
list shall be required to be furnished.
SECTION 7.02. Preservation of Information; Communications to
Noteholders.
(a) The Indenture Trustee shall preserve, in as current a form
as is reasonably practicable, the names and addresses of the Holders of Notes
contained in the most recent list furnished to the Indenture Trustee as provided
in Section 7.01 and the names and addresses of Holders of Notes received by the
Indenture Trustee in its capacity as Note Registrar. The Indenture Trustee may
destroy any list furnished to it as provided in such Section 7.01 upon receipt
of a new list so furnished. The Indenture Trustee shall make such list available
to the Owner Trustee on written request, and to the Noteholders upon written
request of three or more Noteholders or one or more Noteholders evidencing not
less than 25% of the Outstanding Amount of the Notes. Upon receipt by the
Indenture Trustee of any request by a Noteholder to receive a copy of the
current list of Noteholders, the Indenture Trustee shall promptly notify the
Administrator thereof by providing to the Administrator a copy of such request
and a copy of the list of Noteholders in response thereto.
(b) Noteholders may communicate pursuant to TIA ss. 312(b)
with other Noteholders with respect to their rights under this Indenture or
under the Notes.
(c) The Issuer, the Indenture Trustee and the Note Registrar
shall have the protection of TIA ss. 312(c).
SECTION 7.03. Reports by Issuer.
(a) The Issuer shall:
(i) file with the Indenture Trustee, within 15 days
after the Issuer is required (if at all) to file the same with
the Commission, copies of the annual reports and of the
information, documents and other reports (or copies of such
portions of any of the foregoing as the Commission may from
51
time to time by rules and regulations prescribe) that the
Issuer may be required to file with the Commission pursuant to
Section 13 or 15(d) of the Exchange Act;
(ii) file with the Indenture Trustee and the
Commission in accordance with rules and regulations prescribed
from time to time by the Commission such additional
information, documents and reports with respect to compliance
by the Issuer with the conditions and covenants of this
Indenture as may be required from time to time by such rules
and regulations; and
(iii) supply to the Indenture Trustee (and the
Indenture Trustee shall transmit by mail to all Noteholders
described in TIA ss. 313(c)) such summaries of any
information, documents and reports required to be filed by the
Issuer pursuant to clauses (i) and (ii) of this Section
7.03(a) and by rules and regulations prescribed from time to
time by the Commission.
(b) Unless the Issuer otherwise determines, the fiscal year of
the Issuer shall end on December 31 of each year.
SECTION 7.04. Reports by Indenture Trustee. If required by TIA
ss. 313(a), within 60 days after each March 31 beginning with March 31, 2007,
the Indenture Trustee shall mail to each Noteholder as required by TIA ss.
313(c) a brief report dated as of such date that complies with TIA ss. 313(a).
The Indenture Trustee also shall comply with TIA ss. 313(b).
A copy of each report at the time of its mailing to
Noteholders shall be filed by the Indenture Trustee with the Commission and each
stock exchange, if any, on which the Notes are listed. The Issuer shall notify
the Indenture Trustee if and when the Notes are listed on any stock exchange.
ARTICLE VIII.
ACCOUNTS, DISBURSEMENTS AND RELEASES
SECTION 8.01. Collection of Money. Except as otherwise
expressly provided herein, the Indenture Trustee may demand payment or delivery
of, and shall receive and collect, directly and without intervention or
assistance of any fiscal agent or other intermediary, all money and other
property payable to or receivable by the Indenture Trustee pursuant to this
Indenture. The Indenture Trustee shall apply all such money received by it as
provided in this Indenture. Except as otherwise expressly provided in this
Indenture, if any default occurs in the making of any payment or performance
under any agreement or instrument that is part of the Trust Estate, the
Indenture Trustee may take such action as may be appropriate to enforce such
payment or performance, including the institution and prosecution of appropriate
Proceedings. Any such action shall be without prejudice to any right to claim a
52
Default or Event of Default under this Indenture and any right to proceed
thereafter as provided in Article V.
SECTION 8.02. Trust Accounts.
(a) On or prior to the Closing Date, the Issuer shall cause
the Servicer to establish and maintain, in the name of the Indenture Trustee,
for the benefit of the Noteholders and, in the case of the Collection Account
and the Reserve Account, the Certificateholders, the Trust Accounts as provided
in Section 5.01 of the Sale and Servicing Agreement.
(b) On or before each Deposit Date, the Issuer shall cause the
Servicer to deposit all Available Amounts with respect to the Collection Period
preceding such Payment Date in the Collection Account as provided in Section
5.02 and 5.04 of the Sale and Servicing Agreement. On or before each Deposit
Date, all amounts required to be withdrawn from the Reserve Account and
deposited in the Collection Account pursuant to Section 5.06 of the Sale and
Servicing Agreement shall be withdrawn by the Indenture Trustee from the Reserve
Account and deposited to the Collection Account as provided therein, as to which
Issuer shall cause Servicer to timely provide the related instructions.
(c) On each Payment Date, the Indenture Trustee (based on the
information contained in the Servicer's Certificate delivered on or before the
related Determination Date pursuant to Section 4.09 of the Sale and Servicing
Agreement) shall make the withdrawals from the Collection Account and make
deposits, distributions and payments, to the extent of funds on deposit in the
Collection Account with respect to the Collection Period preceding such Payment
Date (including funds, if any, deposited therein from the Reserve Account), in
accordance with the provisions of Section 5.06(b) of the Sale and Servicing
Agreement (as to which the Issuer shall cause the Servicer to timely provide the
related instructions).
(i) On each Payment Date, the Indenture Trustee
(based on the information contained in the Servicer's
Certificate delivered on or before the related Determination
Date pursuant to Section 4.09 of the Sale and Servicing
Agreement) shall withdraw the funds on deposit in the Interest
Distribution Account with respect to the Collection Period
preceding such Distribution Date and make distributions and
payments in the following order of priority:
(A) first, to the Noteholders of Class A
Notes, the accrued and unpaid interest on the Class A
Notes; provided that if there are not sufficient
funds available to pay the entire amount of the
accrued and unpaid interest on the Class A Notes, the
amounts available shall be applied to the payment of
such interest on the Class A Notes on a pro rata
basis based upon the amount of interest due on each
Class of Class A Notes; and
53
(B) second, to the Noteholders of Class B
Notes, the accrued and unpaid interest on the Class B
Notes; provided that if there are not sufficient
funds available to pay the entire amount of the
accrued and unpaid interest on the Class B Notes, the
amounts available shall be applied to the payment of
such interest on the Class B Notes on a pro rata
basis.
(d) On each Distribution Date, the Indenture Trustee (based on
the information contained in the Servicer's Certificate delivered on or before
the related Determination Date pursuant to Section 4.09 of the Sale and
Servicing Agreement) shall withdraw the funds on deposit on the Principal
Distribution Account with respect to the Collection Period preceding such
Distribution Date and make distributions and payments in the following order of
priority:
(i) first, to the Noteholders of the Class A-1 Notes
in reduction of principal until the principal amount of the
Outstanding Class A-1 Notes has been paid in full; provided
that if there are not sufficient funds available to pay the
principal amount of the Outstanding Class A-1 Notes in full,
the amounts available shall be applied to the payment of
principal on the Class A-1 Notes on a pro rata basis;
(ii) second, to the Noteholders of the Class A-2
Notes in reduction of principal until the principal amount of
the Outstanding Class A-2 Notes has been paid in full;
provided that if there are not sufficient funds available to
pay the principal amount of the Outstanding Class A-2 Notes in
full, the amounts available shall be applied to the payment of
principal on the Class A-2 Notes on a pro rata basis;
(iii) third, to the Noteholders of the Class A-3
Notes in reduction of principal until the principal amount of
the Outstanding Class A-3 Notes has been paid in full;
provided that if there are not sufficient funds available to
pay the principal amount of the Outstanding Class A-3 Notes in
full, the amounts available shall be applied to the payment of
principal on the Class A-3 Notes on a pro rata basis;
(iv) fourth, to the Noteholders of the Class A-4
Notes in reduction of principal until the principal amount of
the Outstanding Class A-4 Notes has been paid in full;
provided that if there are not sufficient funds available to
pay the principal amount of the Outstanding Class A-4 Notes in
full, the amounts available shall be applied to the payment of
principal on the Class A-4 Notes on a pro rata basis;
(v) fifth, to the Noteholders of the Class B Notes in
reduction of principal until the principal amount of the
Outstanding Class B Notes has been paid in full; provided that
if there are not sufficient funds available to pay the
principal amount of the Outstanding Class B Notes in full, the
54
amounts available shall be applied to the payment of principal
on the Class B Notes on a pro rata basis; and
(vi) sixth, any remaining amounts, to the Certificate
Distribution Account.
SECTION 8.03. General Provisions Regarding Accounts. The
Indenture Trustee shall not in any way be held liable by reason of any
insufficiency in any of the Trust Accounts resulting from any loss on any
Eligible Investment included therein except for losses attributable to the
Indenture Trustee's failure to make payments on such Eligible Investments issued
by the Indenture Trustee, in its commercial capacity as principal obligor and
not as trustee, in accordance with their terms.
SECTION 8.04. Release of Trust Estate.
(a) Subject to the payment of its fees and expenses pursuant
to Section 6.07, the Indenture Trustee may, and when required by the provisions
of this Indenture shall, execute instruments to release property from the lien
of this Indenture, or convey the Indenture Trustee's interest in the same, in a
manner and under circumstances that are not inconsistent with the provisions of
this Indenture. No party relying upon an instrument executed by the Indenture
Trustee as provided in this Article VIII shall be bound to ascertain the
Indenture Trustee's authority, inquire into the satisfaction of any conditions
precedent or see to the application of any moneys.
(b) The Indenture Trustee shall, at such time as there are no
Notes Outstanding and all sums due the Indenture Trustee pursuant to Section
6.07 have been paid in full, release any remaining portion of the Trust Estate
that secured the Notes from the lien of this Indenture and release to the Issuer
or any other Person entitled thereto any funds then on deposit in the Trust
Accounts. The Indenture Trustee shall release property from the lien of this
Indenture pursuant to this Section 8.04(b) only upon receipt by it of an Issuer
Request accompanied by an Officer's Certificate, an Opinion of Counsel and (if
required by the TIA) Independent Certificates in accordance with TIA ▇▇.▇▇.
314(c) and 314(d)(1) meeting the applicable requirements of Section 11.01.
(c) The Issuer agrees, upon request by the Servicer and
representation by the Servicer that it has complied with the procedure in
Section 9.01 of the Sale and Servicing Agreement, to render the Issuer Request
to the Indenture Trustee in accordance with Section 4.04, and take such other
actions as are required in that Section.
SECTION 8.05. Opinion of Counsel. The Indenture Trustee shall
receive at least seven days prior written notice when requested by the Issuer to
take any action pursuant to Section 8.04(b), accompanied by copies of any
instruments involved, and the Indenture Trustee shall also require, as a
condition to such action, an Opinion of Counsel, in form and substance
satisfactory to the Indenture Trustee, stating the legal effect of any such
action, outlining the steps required to complete the same, and concluding that
all conditions precedent to the taking of such action have been complied with
55
and such action will not materially and adversely impair the security for the
Notes or the rights of the Noteholders in contravention of the provisions of
this Indenture; provided, however, that such Opinion of Counsel shall not be
required to express an opinion as to the fair value of the Trust Estate. Counsel
rendering any such opinion may rely, without independent investigation, on the
accuracy and validity of any certificate or other instrument delivered to the
Indenture Trustee in connection with any such action.
ARTICLE IX.
SUPPLEMENTAL INDENTURES
SECTION 9.01. Supplemental Indentures Without Consent of
Noteholders.
(a) Without the consent of the Holders of any Notes but with
prior written notice to the Rating Agencies (with copy to the Indenture
Trustee), the Issuer and the Indenture Trustee, when authorized by an Issuer
Order, at any time and from time to time, may enter into one or more
supplemental indentures hereto (which shall conform to the provisions of the
Trust Indenture Act as in force at the date of the execution thereof), in form
satisfactory to the Indenture Trustee, for any of the following purposes:
(i) to correct or amplify the description of any
property at any time subject to the lien of this Indenture, or
better to assure, convey and confirm unto the Indenture
Trustee any property subject or required to be subjected to
the lien of this Indenture, or to subject to the lien of this
Indenture additional property;
(ii) to evidence the succession, in compliance with
the applicable provisions hereof, of another person to the
Issuer, and the assumption by any such successor of the
covenants of the Issuer contained herein and in the Notes;
(iii) to add to the covenants of the Issuer, for the
benefit of the Holders of the Notes, or to surrender any right
or power herein conferred upon the Issuer;
(iv) to convey, transfer, assign, mortgage or pledge
any property to or with the Indenture Trustee;
(v) to cure any ambiguity, to correct or supplement
any provision herein or in any supplemental indenture that may
be inconsistent with any other provision herein or in any
supplemental indenture or to make any other provisions with
respect to matters or questions arising under this Indenture
or in any supplemental indenture; provided, that such action
shall not adversely affect the interests of the Holders of the
Notes;
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(vi) to evidence and provide for the acceptance of
the appointment hereunder by a successor trustee with respect
to the Notes and to add to or change any of the provisions of
this Indenture as shall be necessary to facilitate the
administration of the trusts hereunder by more than one
trustee, pursuant to the requirements of Article VI; or
(vii) to modify, eliminate or add to the provisions
of this Indenture to such extent as shall be necessary to
effect the qualification of this Indenture under the TIA or
under any similar federal statute hereafter enacted and to add
to this Indenture such other provisions as may be expressly
required by the TIA.
The Indenture Trustee is hereby authorized to join in the execution of any such
supplemental indenture and to make any further appropriate agreements and
stipulations that may be therein contained.
(b) The Issuer and the Indenture Trustee, when authorized by
an Issuer Order, may, also without the consent of any of the Holders of the
Notes but with prior notice to the Rating Agencies, enter into an indenture or
indentures supplemental hereto for the purpose of adding any provisions to, or
changing in any manner or eliminating any of the provisions of, this Indenture
or of modifying in any manner the rights of the Holders of the Notes under this
Indenture; provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interests of
any Noteholder; provided, further, that such action shall not be deemed to
adversely affect in any material respect the interests of any Noteholder and no
Opinion of Counsel to that effect shall be required if the person requesting
such amendment obtains a letter from the Rating Agencies stating that the
amendment would not result in the downgrading or withdrawal of the ratings then
assigned to the Notes.
SECTION 9.02. Supplemental Indentures with Consent of
Noteholders. The Issuer and the Indenture Trustee, when authorized by an Issuer
Order, also may, with prior notice to the Rating Agencies and with the consent
of the Holders of not less than a majority of the Outstanding Amount of the
Notes of the Controlling Class, by Act of such Holders delivered to the Issuer
and the Indenture Trustee, enter into an indenture or indentures supplemental
hereto for the purpose of adding any provisions to, or changing in any manner or
eliminating any of the provisions of, this Indenture or of modifying in any
manner the rights of the Holders of the Notes under this Indenture; provided,
however, that no such supplemental indenture shall, without the consent of the
Holder of each Outstanding Note affected thereby:
(i) change the date of payment of any installment of
principal of or interest on any Note, or reduce the principal
amount thereof, the interest rate thereon or the Redemption
Price with respect thereto, change the provisions of this
Indenture relating to the application of collections on, or
the proceeds of the sale of, the Trust Estate to payment of
principal of or interest on the Notes, or change any place of
payment where, or the coin or currency in which, any Note or
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the interest thereon is payable, or impair the right to
institute suit for the enforcement of the provisions of this
Indenture requiring the application of funds available
therefor, as provided in Article V, to the payment of any such
amount due on the Notes on or after the respective due dates
thereof (or, in the case of redemption, on or after the
Redemption Date);
(ii) reduce the percentage of the Outstanding Amount
of the Notes or the Notes of the Controlling Class, the
consent of the Holders of which is required for any such
supplemental indenture, or the consent of the Holders of which
is required for any waiver of compliance with certain
provisions of this Indenture or certain defaults hereunder and
their consequences provided for in this Indenture;
(iii) modify or alter (x) the provisions of the
proviso to the definition of "Outstanding" or (y) the
definition of "Controlling Class";
(iv) reduce the percentage of the Outstanding Amount
of the Notes or the Notes of the Controlling Class, as
applicable, required to direct the Indenture Trustee to direct
the Issuer to sell or liquidate the Trust Estate pursuant to
Section 5.04;
(v) modify any provision of this Section except to
increase any percentage specified herein or to provide that
certain additional provisions of this Indenture or the Basic
Documents cannot be modified or waived without the consent of
the Holder of each Outstanding Note affected thereby;
(vi) modify any of the provisions of this Indenture
in such manner as to affect the calculation of the amount of
any payment of interest or principal due on any Note on any
Payment Date (including the calculation of any of the
individual components of such calculation) or to affect the
rights of the Holders of Notes to the benefit of any
provisions for the mandatory redemption of the Notes contained
herein; or
(vii) permit the creation of any lien ranking prior
to or on a parity with the lien of this Indenture with respect
to any part of the Trust Estate or, except as otherwise
permitted or contemplated herein, terminate the lien of this
Indenture on any property at any time subject hereto or
deprive the Holder of any Note of the security provided by the
lien of this Indenture.
The Indenture Trustee may in its discretion or at the advice of counsel
determine whether or not any Notes would be affected by any supplemental
indenture and any such determination shall be conclusive upon the Holders of all
Notes, whether theretofore or thereafter authenticated and delivered hereunder.
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The Indenture Trustee shall not be liable for any such determination made in
good faith.
It shall not be necessary for any Act of Noteholders under
this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the substance
thereof.
Promptly after the execution by the Issuer and the Indenture
Trustee of any supplemental indenture pursuant to this Section, the Indenture
Trustee shall mail to the Holders of the Notes to which such amendment or
supplemental indenture relates a notice setting forth in general terms the
substance of such supplemental indenture. Any failure of the Indenture Trustee
to mail such notice, or any defect therein, shall not, however, in any way
impair or affect the validity of any such supplemental indenture.
SECTION 9.03. Execution of Supplemental Indentures. In
executing, or permitting the additional trusts created by, any supplemental
indenture permitted by this Article IX or the modification thereby of the trusts
created by this Indenture, the Indenture Trustee shall be entitled to receive,
and subject to Sections 6.01 and 6.02, shall be fully protected in relying upon,
an Opinion of Counsel stating that the execution of such supplemental indenture
is authorized or permitted by this Indenture. The Indenture Trustee may, but
shall not be obligated to, enter into any such supplemental indenture that
affects the Indenture Trustee's own rights, duties, liabilities or immunities
under this Indenture or otherwise. The Administrator shall provide a fully
executed copy of any supplemental indentures to this Indenture to each Rating
Agency.
SECTION 9.04. Effect of Supplemental Indenture. Upon the
execution of any supplemental indenture pursuant to the provisions hereof, this
Indenture shall be and shall be deemed to be modified and amended in accordance
therewith with respect to the Notes affected thereby, and the respective rights,
limitations of rights, obligations, duties, liabilities and immunities under
this Indenture of the Indenture Trustee, the Issuer and the Holders of the Notes
shall thereafter be determined, exercised and enforced hereunder subject in all
respects to such modifications and amendments, and all the terms and conditions
of any such supplemental indenture shall be and be deemed to be part of the
terms and conditions of this Indenture for any and all purposes.
SECTION 9.05. Reference in Notes to Supplemental Indentures.
Notes authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article IX may, and if required by the Indenture
Trustee shall, bear a notation in form approved by the Indenture Trustee as to
any matter provided for in such supplemental indenture. If the Issuer or the
Indenture Trustee shall so determine, new Notes so modified as to conform, in
the opinion of the Indenture Trustee and the Issuer, to any such supplemental
indenture may be prepared and executed by the Issuer and authenticated and
delivered by the Indenture Trustee in exchange for Outstanding Notes.
SECTION 9.06. Conformity with Trust Indenture Act. Every
amendment of this Indenture and every supplemental indenture executed pursuant
to this Article IX shall conform to the requirements of the Trust Indenture Act
59
as then in effect so long as this Indenture shall then be qualified under the
Trust Indenture Act.
ARTICLE X.
REDEMPTION OF NOTES
SECTION 10.01. Redemption. The Notes are subject to redemption
in whole, but not in part, at the direction of the Servicer pursuant to Section
9.01 of the Sale and Servicing Agreement, on any Payment Date on which the
Servicer exercises its option to purchase the Trust Estate pursuant to said
Section 9.01, for a purchase price equal to the Redemption Price; provided, that
the Issuer has available funds sufficient to pay the Redemption Price. The
Servicer or the Issuer shall furnish the Rating Agencies and the Indenture
Trustee notice of such redemption. If the Notes are to be redeemed pursuant to
this Section 10.01, the Servicer shall furnish notice of such election to the
Indenture Trustee not later than 20 days prior to the Redemption Date and shall
deposit the Business Day prior to the Redemption Date with the Indenture Trustee
in the Note Distribution Account the Redemption Price of the Notes to be
redeemed, whereupon all such Notes shall be due and payable on the Redemption
Date upon the furnishing of a notice complying with Section 10.02 to each Holder
of the Notes.
SECTION 10.02. Form of Redemption Notice. Notice of redemption
under Section 10.01 shall be given by the Indenture Trustee by first-class mail,
postage prepaid, or by facsimile mailed or transmitted not later than 10 days
prior to the applicable Redemption Date to each Holder of Notes, as of the close
of business on the Record Date preceding the applicable Redemption Date, at such
Holder's address or facsimile number appearing in the Note Register.
All notices of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) the place where such Notes are to be
surrendered for payment of the Redemption Price (which shall
be the office or agency of the Issuer to be maintained as
provided in Section 3.02); and
(iv) that interest on the Notes shall cease to accrue
on the Redemption Date.
Notice of redemption of the Notes shall be given by the Indenture Trustee in the
name and at the expense of the Issuer. Failure to give notice of redemption, or
any defect therein, to any Holder of any Note shall not impair or affect the
validity of the redemption of any other Note.
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SECTION 10.03. Notes Payable on Redemption Date. The Notes or
portions thereof to be redeemed shall, following notice of redemption as
required by Section 10.02 (in the case of redemption pursuant to Section 10.01),
on the Redemption Date become due and payable at the Redemption Price and
(unless the Issuer shall default in the payment of the Redemption Price) no
interest shall accrue on the Redemption Price for any period after the date to
which accrued interest is calculated for purposes of calculating the Redemption
Price.
ARTICLE XI.
MISCELLANEOUS
SECTION 11.01. Compliance Certificates and Opinions, etc.
(a) Upon any application or request by the Issuer to the
Indenture Trustee to take any action under any provision of this Indenture, the
Issuer shall furnish to the Indenture Trustee (i) an Officer's Certificate
stating that all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with and (ii) an Opinion of
Counsel stating that in the opinion of such counsel all such conditions
precedent, if any, have been complied with and (iii) (if required by the TIA) an
Independent Certificate from a firm of certified public accountants meeting the
applicable requirements of this Section, except that, in the case of any such
application or request as to which the furnishing of such documents is
specifically required by any provision of this Indenture, no additional
certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(i) a statement that each signatory of such
certificate or opinion has read or has caused to be read such
covenant or condition and the definitions herein relating
thereto;
(ii) a brief statement as to the nature and scope of
the examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based;
(iii) a statement that, in the opinion of each such
signatory, such signatory has made such examination or
investigation as is necessary to enable such signatory to
express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(iv) a statement as to whether, in the opinion of
each such signatory, such condition or covenant has been
complied with.
(b) (i) Prior to the deposit of any Collateral or other
property or securities with the Indenture Trustee that is to be made the basis
for the release of any property or securities subject to the lien of this
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Indenture, the Issuer shall, in addition to any obligation imposed in Section
11.01(a) or elsewhere in this Indenture, furnish to the Indenture Trustee an
Officer's Certificate certifying or stating the opinion of each person signing
such certificate as to the fair value (within 90 days of such deposit) to the
Issuer of the Collateral or other property or securities to be so deposited.
(ii) Whenever the Issuer is required to furnish to
the Indenture Trustee an Officer's Certificate certifying or
stating the opinion of any signatory thereof as to the matters
described in clause (i) above, the Issuer shall also deliver
to the Indenture Trustee an Independent Certificate as to the
same matters, if the fair value to the Issuer of the
securities to be so deposited and of all other such securities
made the basis of any such withdrawal or release since the
commencement of the then-current fiscal year of the Issuer, as
set forth in the certificates delivered pursuant to clause (i)
above and this clause (ii), is 10% or more of the Outstanding
Amount of the Notes, but such a certificate need not be
furnished with respect to any securities so deposited, if the
fair value thereof to the Issuer as set forth in the related
Officer's Certificate is less than $25,000 or less than one
percent of the Outstanding Amount of the Notes.
(iii) Whenever any property or securities are to be
released from the lien of this Indenture, the Issuer shall
also furnish to the Indenture Trustee an Officer's Certificate
certifying or stating the opinion of each person signing such
certificate as to the fair value (within 90 days of such
release) of the property or securities proposed to be released
and stating that in the opinion of such person the proposed
release will not impair the security under this Indenture in
contravention of the provisions hereof.
(iv) Other than with respect to the release of any
Purchased Receivable, the Issuer is required to furnish to the
Indenture Trustee an Officer's Certificate certifying or
stating the opinion of any signer thereof as to the matters
described in clause (v) above, the Issuer shall also furnish
to the Indenture Trustee an Independent Certificate as to the
same matters if the fair value of the property or securities
and of all other property, other than property as contemplated
by clause (v) below, or securities released from the lien of
this Indenture since the commencement of the then-current
calendar year, as set forth in the certificates required by
clause (iii) above and this clause (iv), equals 10% or more of
the Outstanding Amount of the Notes, but such certificate need
not be furnished in the case of any release of property or
securities if the fair value thereof as set forth in the
related Officer's Certificate is less than $25,000 or less
than one percent of the then Outstanding Amount of the Notes.
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(v) Notwithstanding Section 4.04 or any other
provision of this Section, the Issuer may, without compliance
with the requirements of the other provisions of this Section,
(A) collect, liquidate, sell or otherwise dispose of
Receivables and Financed Vehicles as and to the extent
permitted or required by the Basic Documents and (B) make cash
payments out of the Trust Accounts as and to the extent
permitted or required by the Basic Documents.
SECTION 11.02. Form of Documents Delivered to Indenture
Trustee. In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an Authorized Officer of the
Issuer may be based, insofar as it relates to legal matters, upon a certificate
or opinion of, or representations by, counsel, unless such officer knows, or in
the exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which such officer's
certificate or opinion is based are erroneous. Any such certificate of an
Authorized Officer or Opinion of Counsel may be based, insofar as it relates to
factual matters, upon a certificate or opinion of, or representations by, an
officer or officers of the Servicer, either Seller, the Issuer or the
Administrator, stating that the information with respect to such factual matters
is in the possession of the Servicer, the applicable Seller, the Issuer or the
Administrator, unless such counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to
such matters are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
Whenever in this Indenture, in connection with any application
or certificate or report to the Indenture Trustee, it is provided that the
Issuer shall deliver any document as a condition of the granting of such
application, or as evidence of the Issuer's compliance with any term hereof, it
is intended that the truth and accuracy, at the time of the granting of such
application or at the effective date of such certificate or report (as the case
may be), of the facts and opinions stated in such document shall in such case be
conditions precedent to the right of the Issuer to have such application granted
or to the sufficiency of such certificate or report. The foregoing shall not,
however, be construed to affect the Indenture Trustee's right to rely upon the
truth and accuracy of any statement or opinion contained in any such document as
provided in Article VI.
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SECTION 11.03. Acts of Noteholders.
(a) Any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this Indenture to be given
or taken by Noteholders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Noteholders in person
or by agents duly appointed in writing; and except as herein otherwise expressly
provided such action shall become effective when such instrument or instruments
are delivered to the Indenture Trustee and, where it is hereby expressly
required, to the Issuer. Such instrument or instruments (and the action embodied
therein and evidenced thereby) are herein sometimes referred to as the "Act" of
the Noteholders signing such instrument or instruments. Proof of execution of
any such instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Indenture and (subject to Section 6.01)
conclusive in favor of the Indenture Trustee and the Issuer, if made in the
manner provided in this Section.
(b) The fact and date of the execution by any person of
any such instrument or writing may be proved in any manner that the Indenture
Trustee deems sufficient.
(c) The ownership of Notes shall be proved by the Note
Register.
(d) Any request, demand, authorization, direction,
notice, consent, waiver or other action by the Holder of any Notes shall bind
the Holder of every Note issued upon the registration thereof or in exchange
therefor or in lieu thereof, in respect of anything done, omitted or suffered to
be done by the Indenture Trustee or the Issuer in reliance thereon, whether or
not notation of such action is made upon such Note.
SECTION 11.04. Notices, etc., to Indenture Trustee, Issuer and
Rating Agencies. Any request, demand, authorization, direction, notice, consent,
waiver or Act of Noteholders or other documents provided or permitted by this
Indenture shall be in writing and, if such request, demand, authorization,
direction, notice, consent, waiver or Act of Noteholders is to be made upon,
given or furnished to or filed with:
(i) the Indenture Trustee by any Noteholder or by the
Issuer, shall be sufficient for every purpose hereunder if
made, given, furnished or filed in writing to or with the
Indenture Trustee at its Corporate Trust Office; or
(ii) the Issuer by the Indenture Trustee or by any
Noteholder, shall be sufficient for every purpose hereunder if
in writing and mailed first-class, postage prepaid to the
Issuer addressed to: BMW Vehicle Owner Trust 2006-A, in care
of Wilmington Trust Company, as Owner Trustee, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention:
Corporate Trust Administration, or at any other address
previously furnished in writing to the Indenture Trustee by
the Issuer or the Administrator. The Issuer shall promptly
64
transmit any notice received by it from the Noteholders to the
Indenture Trustee.
Notices required to be given to the Rating Agencies by the
Issuer, the Indenture Trustee or the Owner Trustee shall be in writing,
personally delivered or mailed by certified mail, return receipt requested, to
(i) in the case of Moody's, at the following address: ▇▇▇▇▇'▇ Investors Service,
Inc., ABS Monitoring Department, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇;
(ii) in the case of Standard & Poor's, at the following address: Standard &
Poor's, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Asset Backed Surveillance Department; or as to
each of the foregoing, at such other address as shall be designated by written
notice to the other parties.
SECTION 11.05. Notices to Noteholders; Waiver. Where this
Indenture provides for notice to Noteholders of any event, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing
and mailed, first-class, postage prepaid to each Noteholder affected by such
event, at such Holder's address as it appears on the Note Register, not later
than the latest date, and not earlier than the earliest date, prescribed for the
giving of such notice. In any case where notice to Noteholders is given by mail,
neither the failure to mail such notice nor any defect in any notice so mailed
to any particular Noteholder shall affect the sufficiency of such notice with
respect to other Noteholders, and any notice that is mailed in the manner herein
provided shall conclusively be presumed to have been duly given.
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by any Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Noteholders shall be filed with the Indenture
Trustee but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such a waiver.
In case, by reason of the suspension of regular mail service
as a result of a strike, work stoppage or similar activity, it shall be
impractical to mail notice of any event to Noteholders when such notice is
required to be given pursuant to any provision of this Indenture, then any
manner of giving such notice as shall be satisfactory to the Indenture Trustee
shall be deemed to be a sufficient giving of such notice.
Where this Indenture provides for notice to the Rating
Agencies, failure to give such notice shall not affect any other rights or
obligations created hereunder, and shall not under any circumstance constitute a
Default or Event of Default.
SECTION 11.06. Alternate Payment and Notice Provisions.
Notwithstanding any provision of this Indenture or any of the Notes to the
contrary, the Issuer may enter into any agreement with any Holder of a Note
providing for a method of payment, or notice by the Indenture Trustee or any
Paying Agent to such Holder, that is different from the methods provided for in
this Indenture for such payments or notices. The Issuer will furnish to the
Indenture Trustee a copy of each such agreement and the Indenture Trustee will
65
cause payments to be made and notices to be given in accordance with such
agreements. The Indenture Trustee shall provide a copy of any request made
pursuant to this Section 11.06 to the Owner Trustee.
SECTION 11.07. Effect of Headings and Table of Contents. The
Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 11.08. Successors and Assigns. All covenants and
agreements in this Indenture and the Notes by the Issuer shall bind its
successors and assigns, whether so expressed or not. All agreements of the
Indenture Trustee in this Indenture shall bind its successors, co-trustees and
agents.
SECTION 11.09. Separability. In case any provision in this
Indenture or in the Notes shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 11.10. Benefits of Indenture. Nothing in this
Indenture or in the Notes, express or implied, shall give to any Person, other
than the parties hereto and their successors hereunder, and the Noteholders, and
any other party secured hereunder, and any other Person with an ownership
interest in any part of the Trust Estate, any benefit or any legal or equitable
right, remedy or claim under this Indenture.
SECTION 11.11. Legal Holidays. In any case where the date on
which any payment is due shall not be a Business Day, then (notwithstanding any
other provision of the Notes or this Indenture) payment need not be made on such
date, but may be made on the next succeeding Business Day with the same force
and effect as if made on the date on which nominally due, and no interest shall
accrue for the period from and after any such nominal date.
SECTION 11.12. Governing Law. THIS INDENTURE SHALL BE
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REFERENCE TO ITS CONFLICT OF LAW PROVISIONS (OTHER THAN SECTION 5-1401 OF THE
GENERAL OBLIGATIONS LAW), AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 11.13. Counterparts. This Indenture may be executed in
any number of counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but one and the
same instrument.
SECTION 11.14. Recording of Indenture. If this Indenture is
subject to recording in any appropriate public recording offices, such recording
is to be effected by the Issuer and at the expense of the Servicer accompanied
by an Opinion of Counsel (which may be counsel to the Indenture Trustee or any
other counsel reasonably acceptable to the Indenture Trustee) to the effect that
66
such recording is necessary either for the protection of the Noteholders or any
other Person secured hereunder or for the enforcement of any right or remedy
granted to the Indenture Trustee under this Indenture.
SECTION 11.15. Trust Obligation. No recourse may be taken,
directly or indirectly, with respect to the obligations of the Issuer, the Owner
Trustee or the Indenture Trustee on the Notes or under this Indenture or any
certificate or other writing delivered in connection herewith or therewith,
against (i) the Indenture Trustee or the Owner Trustee in its individual
capacity, (ii) any owner of a beneficial interest in the Issuer, including the
Seller, or (iii) any partner, owner, beneficiary, agent, officer, director,
employee or agent of the Indenture Trustee or the Owner Trustee in its
individual capacity, any holder of a beneficial interest in the Issuer, the
Owner Trustee or the Indenture Trustee or of any successor or assign of the
Indenture Trustee or the Owner Trustee in its individual capacity, except as any
such Person may have expressly agreed (it being understood that the Indenture
Trustee and the Owner Trustee have no such obligations in their individual
capacity). For all purposes of this Indenture, in the performance of any duties
or obligations of the Issuer hereunder, the Owner Trustee shall be subject to,
and entitled to the benefits of, the terms and provisions of Article VI, VII and
VIII of the Trust Agreement.
SECTION 11.16. No Petition. The Indenture Trustee, by entering
into this Indenture, and each Noteholder, by accepting a Note, hereby covenant
and agree that they will not at any time institute against the Issuer or the
Depositor, or join in any institution against the Issuer or the Depositor, of
any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or other proceedings under any United States federal or state
bankruptcy or similar law in connection with any obligations relating to the
Notes, this Indenture or any of the Basic Documents.
SECTION 11.17. Inspection. The Issuer agrees that, on
reasonable prior notice, it will permit any representative of the Indenture
Trustee, during the Issuer's normal business hours, to examine all the books of
account, records, reports and other papers of the Issuer, to make copies and
extracts therefrom, to cause such books to be audited by Independent certified
public accountants, and to discuss the Issuer's affairs, finances and accounts
with the Issuer's officers, employees and Independent certified public
accountants, all at such reasonable times and as often as may be reasonably
requested; provided, however, that the Indenture Trustee may only cause the
books of the Issuer to be audited on an annual basis, unless there occurs an
Event of Default hereunder. The Indenture Trustee shall, and shall cause its
representatives to, hold in confidence all such information except to the extent
such information is publicly available or such disclosure may be required by law
(and all reasonable applications for confidential treatment are unavailing) and
except to the extent that the Indenture Trustee may reasonably determine with
the advice of counsel and after consultation with the Issuer that such
disclosure is consistent with its obligations hereunder.
SECTION 11.18. Conflict with Trust Indenture Act. If any
provision hereof limits, qualifies or conflicts with another provision hereof
67
that is required to be included in this Indenture by any of the provisions of
the Trust Indenture Act, such required provision shall control.
The provisions of TIA ▇▇.▇▇. 310 through 317 that impose
duties on any person (including the provisions automatically deemed included
herein unless expressly excluded by this Indenture) are a part of and govern
this Indenture, whether or not physically contained herein.
SECTION 11.19. Limitation of Liability. It is expressly
understood and agreed by the parties hereto that (a) this Indenture is executed
and delivered by Wilmington Trust Company, not individually or personally but
solely as Owner Trustee of BMW Vehicle Owner Trust 2006-A, in the exercise of
the powers and authority conferred and vested in it, (b) each of the
representations, undertakings and agreements herein made on the part of the
Issuer is made and intended not as personal representations, undertakings and
agreements by Wilmington Trust Company but is made and intended for the purpose
for binding only the Issuer, (c) nothing herein contained shall be construed as
creating any liability on Wilmington Trust Company, individually or personally,
to perform any covenant either expressed or implied contained herein, all such
liability, if any, being expressly waived by the parties hereto and by any
Person claiming by, through or under the parties hereto and (d) under no
circumstances shall Wilmington Trust Company be personally liable for the
payment of any indebtedness or expenses of the Issuer or be liable for the
breach or failure of any obligation, representation, warranty or covenant made
or undertaken by the Issuer under this Indenture or any other related documents.
SECTION 11.20. Intent of the Parties; Reasonableness.
The Indenture Trustee and Issuer acknowledge and agree that the purpose
of Section 3.10 of this Agreement is to facilitate compliance by the Issuer and
the Depositor with the provisions of Regulation AB and related rules and
regulations of the Commission.
Neither the Issuer nor the Administrator (acting on behalf of the
Issuer) 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 Indenture 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 securities markets or otherwise in respect of the requirements of
Regulation AB, and agrees to exercise reasonable effort to comply with requests
made by the Issuer (or the Administrator, acting on behalf of the Issuer) in
good faith for delivery of information under these provisions on the basis of
evolving interpretations of Regulation AB. In connection with this transaction,
the Indenture Trustee shall exercise reasonable effort to cooperate with the
Issuer (or the Administrator, acting on behalf of the Issuer) to deliver to the
68
Issuer (or the Administrator, acting on behalf of the Issuer), any and all
statements, reports, certifications, records and any other information, in each
case solely to the extent that such material or information is available to the
Indenture Trustee, which is necessary in the good faith determination of the
Issuer (or the Administrator, acting on behalf of the Issuer) to permit the
Issuer to comply with the provisions of Regulation AB, together with such
disclosures relating to the Indenture Trustee reasonably believed by the Issuer
in good faith (or the Administrator, acting on behalf of the Issuer) to be
necessary in order to effect such compliance.
The Issuer (or the Administrator, acting on behalf of the Issuer) shall
cooperate with the Indenture Trustee by providing timely notice of requests for
information under these provisions and by reasonably limiting such requests to
information required, in the reasonable judgment or the Issuer to comply with
Regulation AB.
* * * * *
69
IN WITNESS WHEREOF, the Issuer and the Indenture Trustee have
caused this Indenture to be duly executed by their respective officers,
thereunto duly authorized and duly attested, all as of the day and year first
above written.
BMW VEHICLE OWNER TRUST 2006-A,
By: WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as
Owner Trustee,
By: /s/
-------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
DEUTSCHE BANK TRUST COMPANY AMERICAS,
not in its individual capacity but solely
as Indenture Trustee,
By: /s/
-------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
By: /s/
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Assistant Vice President
70
STATE OF DELAWARE }
} ss.:
COUNTY OF NEW CASTLE }
BEFORE ME, the undersigned authority, a Notary Public in and for said
county and state, on this day personally appeared ________________, a
_____________ of WILMINGTON TRUST COMPANY not in its individual capacity but
solely as Owner Trustee of BMW Vehicle Owner Trust 2006-A, a Delaware statutory
trust (the "Trust") known to me to be the person and officer whose name is
subscribed to the foregoing instrument and acknowledged to me that the same was
the act of the said Trust, and that s/he executed the same as the act of said
Trust for the purpose and consideration therein expressed, and in the capacities
therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this ___ day of _____________.
----------------------------------------------
Notary Public in and for the State of Delaware
My commission expires:
INDENTURE NOTARIZATION
STATE OF DELAWARE }
} ss.:
COUNTY OF NEW CASTLE }
BEFORE ME, the undersigned authority, a Notary Public in and for said
county and state, on this day personally appeared _____________, known to me to
be the person and officer whose name is subscribed to the foregoing instrument
and acknowledged to me that the same was the act of Deutsche Bank Trust Company
Americas, a New York banking corporation, and that s/he executed the same as the
act of said corporation for the purpose and consideration therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this ___ day of _____________.
----------------------------------
Notary Public in and for the State
of New York.
My commission expires:
71
SCHEDULE A
Schedule of Receivables
[On file with the Servicer]
EXHIBIT A-1
[FORM OF CLASS A-1 NOTE]
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), NEW YORK, NEW
YORK, TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC) ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET
FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY
TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
REGISTERED $323,000,000(1) CUSIP ▇▇. ▇▇▇▇▇▇ ▇▇ ▇
▇▇. ▇-▇
BMW VEHICLE OWNER TRUST 2006-A
5.36344% ASSET BACKED NOTE, CLASS A-1
BMW VEHICLE OWNER TRUST 2006-A, a statutory trust organized
and existing under the laws of the State of Delaware (herein referred to as the
"Issuer"), for value received, hereby promises to pay to Cede & Co., or
registered assigns, the principal sum of THREE HUNDRED TWENTY-THREE MILLION
DOLLARS, payable on each Payment Date in an amount equal to the result obtained
by multiplying (i) $323,000,000 by (ii) the aggregate amount, if any, payable
from the Note Distribution Account in respect of principal on the Class A-1
Notes pursuant to Section 3.01 of the Indenture dated as of September 1, 2006
(the "Indenture"), between the Issuer and Deutsche Bank Trust Company Americas,
a New York banking corporation, as Indenture Trustee (the "Indenture Trustee");
provided, however, that the entire unpaid principal amount of this Note shall be
due and payable on September 25, 2007, (the "Class A-1 Final Scheduled Payment
Date"). Capitalized terms used but not defined herein are defined in the
Indenture, which also contains rules as to construction that shall be applicable
herein.
The Issuer will pay interest on this Note at the rate per
annum set forth above, on each Payment Date until the principal of this Note is
paid or made available for payment, on the principal amount of this Note
outstanding on the preceding Payment Date (after giving effect to all payments
of principal made on the preceding Payment Date), subject to certain limitations
contained in the last sentence of Section 3.01 of the Indenture. Interest on
this Note will accrue for each Payment Date from and including the prior Payment
Date (or, in the case of the first Payment Date, from the Closing Date) to the
next Payment Date. Interest will be computed on the basis of the actual number
of days elapsed in the related Interest Period and a 360-day year. Such
principal of and interest on this Note shall be paid in the manner specified on
the reverse hereof.
The principal of and interest on this Note are payable in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts. All payments made by the
Issuer with respect to this Note shall be applied first to interest due and
payable on this Note as provided above and then to the unpaid principal of this
Note.
Reference is made to the further provisions of this Note set
forth on the reverse hereof, which shall have the same effect as though fully
set forth on the face of this Note.
--------
(1) Denominations of $1,000 and integral multiples of $1,000 in excess thereof.
2
Unless the certificate of authentication hereon has been
executed by the Indenture Trustee whose name appears below by manual signature,
this Note shall not be entitled to any benefit under the Indenture, or be valid
or obligatory for any purpose.
3
IN WITNESS WHEREOF, the Issuer has caused this instrument to
be signed, manually or in facsimile, by its Authorized Officer, as of the date
set forth below.
Date: BMW VEHICLE OWNER TRUST 2006-A
By: WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as
Owner Trustee under the Trust
Agreement,
By: _________________________________
Authorized Signatory
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
Date: DEUTSCHE BANK TRUST COMPANY AMERICAS,
not in its individual capacity but
solely as Indenture Trustee,
By:_______________________________
Authorized Officer
4
REVERSE OF CLASS A-1 NOTE
This Note is one of a duly authorized issue of Notes of the
Issuer, designated as its 5.36344% Asset Backed Notes, Class A-1 (herein called
the "Class A-1 Notes"), all issued under the Indenture, to which Indenture and
all indentures supplemental thereto reference is hereby made for a statement of
the respective rights and obligations thereunder of the Issuer, the Indenture
Trustee and the Holders of the Notes. The Class A-1 Notes are subject to all
terms of the Indenture.
The Class A-1 Notes, Class A-2 Notes, Class A-3 Notes and
Class A-4 Notes (collectively, the "Class A Notes" and together with the Class B
Notes, the "Notes") are and will be secured by the collateral pledged as
security therefor as provided in the Indenture.
Principal of the Class A-1 Notes will be payable on each
Payment Date in an amount described on the face hereof. "Payment Date" means the
25th day of each month, or, if any such date is not a Business Day, the next
succeeding Business Day, commencing October 25, 2006.
As described above, the entire unpaid principal amount of this
Note shall be due and payable on the Class A-1 Final Scheduled Payment Date.
Notwithstanding the foregoing, if an Event of Default occurs, the Indenture
Trustee or the Holders of Notes representing not less than a majority of the
Outstanding Amount of the Notes of the Controlling Class have declared the Notes
to be immediately due and payable in the manner provided in Section 5.02 of the
Indenture. All principal payments on the Class A-1 Notes shall be made pro rata
to the Class A-1 Noteholders entitled thereto.
Payments of interest on this Note due and payable on each
Payment Date, together with the installment of principal, if any, to the extent
not in full payment of this Note, shall be made by check mailed to the Person
whose name appears as the Registered Holder of this Note (or one or more
Predecessor Notes) on the Note Register as of the close of business on each
Record Date, except that with respect to Notes registered on the Record Date in
the name of the nominee of the Clearing Agency (initially, such nominee to be
Cede & Co.), payments will be made by wire transfer in immediately available
funds to the account designated by such nominee. Such checks shall be mailed to
the Person entitled thereto at the address of such Person as it appears on the
Note Register as of the applicable Record Date without requiring that this Note
be submitted for notation of payment. Any reduction in the principal amount of
this Note (or any one or more Predecessor Notes) effected by any payments made
on any Payment Date shall be binding upon all future Holders of this Note and of
any Note issued upon the registration of transfer hereof or in exchange hereof
or in lieu hereof, whether or not noted hereon. If funds are expected to be
available, as provided in the Indenture, for payment in full of the then
remaining unpaid principal amount of this Note on a Payment Date, then the
Indenture Trustee, in the name of and on behalf of the Issuer, will notify the
Person who was the Registered Holder hereof as of the Record Date preceding such
Payment Date by notice mailed or transmitted by facsimile prior to such Payment
5
Date, and the amount then due and payable shall be payable only upon
presentation and surrender of this Note at the Indenture Trustee's principal
Corporate Trust Office or at the office of the Indenture Trustee's agent
appointed for such purposes located in The City of New York..
The Issuer shall pay interest on overdue installments of
interest at the Class A-1 Rate to the extent lawful.
As provided in the Indenture and subject to the limitations
set forth therein and on the face hereof, the transfer of this Note may be
registered on the Note Register upon surrender of this Note for registration of
transfer at the office or agency designated by the Issuer pursuant to the
Indenture, duly endorsed by, or accompanied by a written instrument of transfer
in form satisfactory to the Indenture Trustee duly executed by, the Holder
hereof or such Holder's attorney duly authorized in writing, with such signature
guaranteed by an "eligible guarantor institution" meeting the requirements of
the Note Registrar, which requirements include membership or participation in
the Securities Transfer Agent's Medallion Program ("STAMP") or such other
"signature guarantee program" as may be determined by the Note Registrar in
addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended, and thereupon one or more new Notes
of authorized denominations and in the same aggregate principal amount will be
issued to the designated transferee or transferees. No service charge will be
charged for any registration of transfer or exchange of this Note, but the
transferor may be required to pay a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any such registration
of transfer or exchange subject to certain exceptions set forth in the
Indenture.
Each Noteholder or Note Owner, by acceptance of a Note or, in
the case of a Note Owner, a beneficial interest in a Note, covenants and agrees
that no recourse may be taken, directly or indirectly, with respect to the
obligations of the Issuer, the Owner Trustee or the Indenture Trustee on the
Notes or under the Indenture or any certificate or other writing delivered in
connection therewith, against (i) the Seller, the Servicer, the Indenture
Trustee or the Owner Trustee in its individual capacity, (ii) any owner of a
beneficial interest in the Issuer, including the Seller or (iii) any partner,
owner, beneficiary, agent, officer, director or employee of the Seller, the
Servicer, the Indenture Trustee or the Owner Trustee in its individual capacity,
any holder of a beneficial interest in the Issuer, the Seller, the Servicer, the
Owner Trustee or the Indenture Trustee or of any successor or assign of the
Indenture Trustee or the Owner Trustee in its individual capacity, except as any
such Person may have expressly agreed and except that any such partner, owner or
beneficiary shall be fully liable, to the extent provided by applicable law, for
any unpaid consideration for stock, unpaid capital contribution or failure to
pay any installment or call owing to such entity.
Each Noteholder or Note Owner, by acceptance of a Note or, in
the case of a Note Owner, a beneficial interest in a Note, covenants and agrees
by accepting the benefits of the Indenture that such Noteholder or Note Owner
will not at any time institute against the Issuer, or join in any institution
against the Issuer of, any bankruptcy, reorganization, arrangement, insolvency
or liquidation proceedings under any United States federal or state bankruptcy
6
or similar law in connection with any obligations relating to the Notes, the
Indenture or the other Basic Documents.
The Issuer has entered into the Indenture and this Note is
issued with the intention that, for purposes of federal and state income tax,
franchise tax and any other tax measured in whole or in part by income, the
Notes will qualify as indebtedness secured by the Trust Estate. Each Noteholder,
by acceptance of a Note (and each Note Owner by acceptance of a beneficial
interest in a Note), agrees to treat the Notes for such purposes as
indebtedness.
This Note, or any interest therein, may not be transferred to
an "employee benefit plan" within the meaning of Section 3(3) of ERISA that is
subject to ERISA, a "plan" described in Section 4975(e)(1) of the Code, any
entity that is deemed to hold "plan assets" of any of the foregoing by reason of
an employee benefit plan's or other plan's investment in such entity, or any
governmental plan subject to applicable law that is substantially similar to the
fiduciary responsibility provisions of ERISA or Section 4975 of the Code, unless
such transferee represents, warrants and covenants that its purchase and holding
of this note is and will be eligible for, and satisfies and will satisfy all the
requirements of Section 408(b)(17) of ERISA or of, Department of Labor
prohibited transaction class exemption ("PTE") 90-1; PTE 96-23; PTE 95-60; PTE
91-38; PTE 84-14 or another applicable prohibited transaction exemption (or in
the case of a governmental plan, will not violate any applicable law that is
substantially similar to ERISA or Section 4975 of the Code). By its acquisition
of this Note in book-entry form or any interest therein, each transferee will be
deemed to have represented, warranted and covenanted that it satisfies the
foregoing requirements and the Indenture Trustee may relay conclusively on the
same for purposes hereof.
Prior to the due presentment for registration of transfer of
this Note, the Issuer, the Indenture Trustee and any agent of the Issuer or the
Indenture Trustee may treat the Person in whose name this Note (as of the day of
determination or as of such other date as may be specified in the Indenture) is
registered as the owner hereof for all purposes, whether or not this Note be
overdue, and none of the Issuer, the Indenture Trustee or any such agent shall
be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Issuer and the rights of the Holders of the Notes under the
Indenture at any time by the Issuer with the consent of the Holders of Notes or
the Controlling Class of Notes, as applicable, representing a majority of the
Outstanding Amount of all Notes or the Controlling Class of Notes at the time
Outstanding. The Indenture also contains provisions permitting Holders of Notes
representing specified percentages of the Outstanding Amount of the Notes of the
Controlling Class, on behalf of the Holders of all the Notes, to waive
compliance by the Issuer with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Note (or any one or more Predecessor Notes) shall
be conclusive and binding upon such Holder and upon all future Holders of this
Note and of any Note issued upon the registration of transfer hereof or in
7
exchange hereof or in lieu hereof whether or not notation of such consent or
waiver is made upon this Note. The Indenture also permits the Indenture Trustee
to amend or waive certain terms and conditions set forth in the Indenture
without the consent of Holders of the Notes issued thereunder.
The term "Issuer" as used in this Note includes any successor
to the Issuer under the Indenture.
The Notes are issuable only in registered form in
denominations as provided in the Indenture, subject to certain limitations
therein set forth.
This Note and the Indenture shall be construed in accordance
with the laws of the State of New York, without reference to its conflict of law
provisions, and the obligations, rights and remedies of the parties hereunder
and thereunder shall be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the Issuer,
which is absolute and unconditional, to pay the principal of and interest on
this Note at the times, place and rate, and in the coin or currency herein
prescribed.
Anything herein to the contrary notwithstanding, except as
expressly provided in the Basic Documents, none of Wilmington Trust Company in
its individual capacity, Deutsche Bank Trust Company Americas in its individual
capacity, any owner of a beneficial interest in the Issuer, the Seller, the
Servicer, or any of their respective partners, beneficiaries, agents, officers,
directors, employees or successors or assigns shall be personally liable for,
nor shall recourse be had to any of them for, the payment of principal of or
interest on this Note or performance of, or omission to perform, any of the
covenants, obligations or indemnifications contained in the Indenture. The
Holder of this Note by its acceptance hereof agrees that, except as expressly
provided in the Basic Documents, in the case of an Event of Default under the
Indenture, the Holder shall have no claim against any of the foregoing for any
deficiency, loss or claim therefrom; provided, however, that nothing contained
herein shall be taken to prevent recourse to, and enforcement against, the
assets of the Issuer for any and all liabilities, obligations and undertakings
contained in the Indenture or in this Note.
8
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
--------------------------------------------------
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto:
-----------------------------------------------------------------------
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints ____________________________________________, attorney, to transfer
said Note on the books kept for registration thereof, with full power of
substitution in the premises.
Dated: */
Signature Guaranteed:
*/
-----------------
*/ NOTICE: The signature to this assignment must correspond with the name
of the registered owner as it appears on the face of the within Note in
every particular, without alteration, enlargement or any change
whatsoever. Such signature must be guaranteed by an "eligible guarantor
institution" meeting the requirements of the Note Registrar, which
requirements include membership or participation in STAMP or such other
"signature guarantee program" as may be determined by the Note
Registrar in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.
9
EXHIBIT A-2
[FORM OF CLASS A-2 NOTE]
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), NEW YORK, NEW
YORK, TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC) ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET
FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY
TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
1
REGISTERED $308,000,000(2) CUSIP ▇▇. ▇▇▇▇▇▇ ▇▇ ▇
▇▇. ▇-▇
BMW VEHICLE OWNER TRUST 2006-A
5.30% ASSET BACKED NOTE, CLASS A-2
BMW VEHICLE OWNER TRUST 2006-A, a statutory trust organized
and existing under the laws of the State of Delaware (herein referred to as the
"Issuer"), for value received, hereby promises to pay to Cede & Co., or
registered assigns, the principal sum of THREE HUNDRED EIGHT MILLION DOLLARS,
payable on each Payment Date in an amount equal to the result obtained by
multiplying (i) $308,000,000 by (ii) the aggregate amount, if any, payable from
the Note Distribution Account in respect of principal on the Class A-2 Notes
pursuant to Section 3.01 of the Indenture dated as of September 1, 2006 (the
"Indenture"), between the Issuer and Deutsche Bank Trust Company Americas, a New
York banking corporation, as Indenture Trustee (the "Indenture Trustee");
provided, however, that the entire unpaid principal amount of this Note shall be
due and payable on May 26, 2009 (the "Class A-2 Final Scheduled Payment Date").
No payments of principal of the Class A-2 Notes shall be made until the Class
A-1 Notes have been paid in full. Capitalized terms used but not defined herein
are defined in the Indenture, which also contains rules as to construction that
shall be applicable herein.
The Issuer will pay interest on this Note at the rate per
annum set forth above, on each Payment Date until the principal of this Note is
paid or made available for payment, on the principal amount of this Note
outstanding on the preceding Payment Date (after giving effect to all payments
of principal made on the preceding Payment Date), subject to certain limitations
contained in the last sentence of Section 3.01 of the Indenture. Interest on
this Note will accrue for each Payment Date from and including the 25th day of
the month preceding the month of such Payment Date (or, in the case of the first
Payment Date, from the Closing Date) to but excluding the 25th day of the month
of such Payment Date. Interest will be computed on the basis of a 360-day year
of twelve 30-day months. Such principal of and interest on this Note shall be
paid in the manner specified on the reverse hereof.
The principal of and interest on this Note are payable in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts. All payments made by the
Issuer with respect to this Note shall be applied first to interest due and
payable on this Note as provided above and then to the unpaid principal of this
Note.
Reference is made to the further provisions of this Note set
forth on the reverse hereof, which shall have the same effect as though fully
set forth on the face of this Note.
--------
(1) Denominations of $1,000 and integral multiples of $1,000 in excess thereof.
2
Unless the certificate of authentication hereon has been
executed by the Indenture Trustee whose name appears below by manual signature,
this Note shall not be entitled to any benefit under the Indenture, or be valid
or obligatory for any purpose.
3
IN WITNESS WHEREOF, the Issuer has caused this instrument to
be signed, manually or in facsimile, by its Authorized Officer, as of the date
set forth below.
Date: BMW VEHICLE OWNER TRUST 2006-A
By: WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as
Owner Trustee under the Trust
Agreement,
By: _________________________________
Authorized Signatory
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
Date: DEUTSCHE BANK TRUST COMPANY AMERICAS,
not in its individual capacity but
solely as Indenture Trustee,
By:_______________________________
Authorized Officer
4
REVERSE OF CLASS A-2 NOTE
This Note is one of a duly authorized issue of Notes of the
Issuer, designated as its 5.30% Asset Backed Notes, Class A-2 (herein called the
"Class A-2 Notes"), all issued under the Indenture, to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights and obligations thereunder of the Issuer, the Indenture
Trustee and the Holders of the Notes. The Class A-2 Notes are subject to all
terms of the Indenture.
The Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes
and the Class A-4 Notes (collectively, the "Class A Notes" and together with the
Class B Notes, the "Notes") are and will be secured by the collateral pledged as
security therefor as provided in the Indenture.
Principal of the Class A-2 Notes will be payable on each
Payment Date in an amount described on the face hereof only after the Class A-1
Notes are paid in full and have no Outstanding Amount. "Payment Date" means the
25th day of each month, or, if any such date is not a Business Day, the next
succeeding Business Day, commencing October 25, 2006.
As described above, the entire unpaid principal amount of this
Note shall be due and payable on the Class A-2 Final Scheduled Payment Date.
Notwithstanding the foregoing, if an Event of Default occurs, the Indenture
Trustee or the Holders of Notes representing not less than a majority of the
Outstanding Amount of the Notes of the Controlling Class have declared the Notes
to be immediately due and payable in the manner provided in Section 5.02 of the
Indenture. All principal payments on the Class A-2 Notes shall be made pro rata
to the Class A-2 Noteholders entitled thereto.
Payments of interest on this Note due and payable on each
Payment Date, together with the installment of principal, if any, to the extent
not in full payment of this Note, shall be made by check mailed to the Person
whose name appears as the Registered Holder of this Note (or one or more
Predecessor Notes) on the Note Register as of the close of business on each
Record Date, except that with respect to Notes registered on the Record Date in
the name of the nominee of the Clearing Agency (initially, such nominee to be
Cede & Co.), payments will be made by wire transfer in immediately available
funds to the account designated by such nominee. Such checks shall be mailed to
the Person entitled thereto at the address of such Person as it appears on the
Note Register as of the applicable Record Date without requiring that this Note
be submitted for notation of payment. Any reduction in the principal amount of
this Note (or any one or more Predecessor Notes) effected by any payments made
on any Payment Date shall be binding upon all future Holders of this Note and of
any Note issued upon the registration of transfer hereof or in exchange hereof
or in lieu hereof, whether or not noted hereon. If funds are expected to be
available, as provided in the Indenture, for payment in full of the then
remaining unpaid principal amount of this Note on a Payment Date, then the
Indenture Trustee, in the name of and on behalf of the Issuer, will notify the
Person who was the Registered Holder hereof as of the Record Date preceding such
5
Payment Date by notice mailed or transmitted by facsimile prior to such Payment
Date, and the amount then due and payable shall be payable only upon
presentation and surrender of this Note at the Indenture Trustee's principal
Corporate Trust Office or at the office of the Indenture Trustee's agent
appointed for such purposes located in The City of New York.
The Issuer shall pay interest on overdue installments of
interest at the Class A-2 Rate to the extent lawful.
As provided in the Indenture and subject to the limitations
set forth therein and on the face hereof, the transfer of this Note may be
registered on the Note Register upon surrender of this Note for registration of
transfer at the office or agency designated by the Issuer pursuant to the
Indenture, duly endorsed by, or accompanied by a written instrument of transfer
in form satisfactory to the Indenture Trustee duly executed by, the Holder
hereof or such Holder's attorney duly authorized in writing, with such signature
guaranteed by an "eligible guarantor institution" meeting the requirements of
the Note Registrar, which requirements include membership or participation in
the Securities Transfer Agent's Medallion Program ("STAMP") or such other
"signature guarantee program" as may be determined by the Note Registrar in
addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended, and thereupon one or more new Notes
of authorized denominations and in the same aggregate principal amount will be
issued to the designated transferee or transferees. No service charge will be
charged for any registration of transfer or exchange of this Note, but the
transferor may be required to pay a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any such registration
of transfer or exchange subject to certain exceptions set forth in the
Indenture.
Each Noteholder or Note Owner, by acceptance of a Note or, in
the case of a Note Owner, a beneficial interest in a Note, covenants and agrees
that no recourse may be taken, directly or indirectly, with respect to the
obligations of the Issuer, the Owner Trustee or the Indenture Trustee on the
Notes or under the Indenture or any certificate or other writing delivered in
connection therewith, against (i) the Seller, the Servicer, the Indenture
Trustee or the Owner Trustee in its individual capacity, (ii) any owner of a
beneficial interest in the Issuer, including the Seller or (iii) any partner,
owner, beneficiary, agent, officer, director or employee of the Seller, the
Servicer, Indenture Trustee or the Owner Trustee in its individual capacity, any
holder of a beneficial interest in the Issuer, the Seller, the Servicer, the
Owner Trustee or the Indenture Trustee or of any successor or assign of the
Indenture Trustee or the Owner Trustee in its individual capacity, except as any
such Person may have expressly agreed and except that any such partner, owner or
beneficiary shall be fully liable, to the extent provided by applicable law, for
any unpaid consideration for stock, unpaid capital contribution or failure to
pay any installment or call owing to such entity.
Each Noteholder or Note Owner, by acceptance of a Note or, in
the case of a Note Owner, a beneficial interest in a Note, covenants and agrees
by accepting the benefits of the Indenture that such Noteholder or Note Owner
will not at any time institute against the Issuer, or join in any institution
against the Issuer of, any bankruptcy, reorganization, arrangement, insolvency
6
or liquidation proceedings under any United States federal or state bankruptcy
or similar law in connection with any obligations relating to the Notes, the
Indenture or the other Basic Documents.
The Issuer has entered into the Indenture and this Note is
issued with the intention that, for purposes of federal and state income tax,
franchise tax and any other tax measured in whole or in part by income, the
Notes will qualify as indebtedness secured by the Trust Estate. Each Noteholder,
by acceptance of a Note (and each Note Owner by acceptance of a beneficial
interest in a Note), agrees to treat the Notes for such purposes as
indebtedness.
This Note, or any interest therein, may not be transferred to
an "employee benefit plan" within the meaning of Section 3(3) of ERISA that is
subject to ERISA, a "plan" described in Section 4975(e)(1) of the Code, any
entity that is deemed to hold "plan assets" of any of the foregoing by reason of
an employee benefit plan's or other plan's investment in such entity, or any
governmental plan subject to applicable law that is substantially similar to the
fiduciary responsibility provisions of ERISA or Section 4975 of the Code, unless
such transferee represents, warrants and covenants that its purchase and holding
of this note is and will be eligible for, and satisfies and will satisfy all the
requirements of Section 408(b)(17) of ERISA or of, Department of Labor
prohibited transaction class exemption ("PTE") 90-1; PTE 96-23; PTE 95-60; PTE
91-38; PTE 84-14 or another applicable prohibited transaction exemption (or in
the case of a governmental plan, will not violate any applicable law that is
substantially similar to ERISA or Section 4975 of the Code). By its acquisition
of this Note in book-entry form or any interest therein, each transferee will be
deemed to have represented, warranted and covenanted that it satisfies the
foregoing requirements and the Indenture Trustee may relay conclusively on the
same for purposes hereof.
Prior to the due presentment for registration of transfer of
this Note, the Issuer, the Indenture Trustee and any agent of the Issuer or the
Indenture Trustee may treat the Person in whose name this Note (as of the day of
determination or as of such other date as may be specified in the Indenture) is
registered as the owner hereof for all purposes, whether or not this Note be
overdue, and none of the Issuer, the Indenture Trustee or any such agent shall
be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Issuer and the rights of the Holders of the Notes under the
Indenture at any time by the Issuer with the consent of the Holders of Notes or
the Controlling Class of Notes, as applicable, representing a majority of the
Outstanding Amount of all Notes or Controlling Class of Notes at the time
Outstanding. The Indenture also contains provisions permitting Holders of Notes
representing specified percentages of the Outstanding Amount of the Notes of the
Controlling Class, on behalf of the Holders of all the Notes, to waive
compliance by the Issuer with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Note (or any one or more Predecessor Notes) shall
7
be conclusive and binding upon such Holder and upon all future Holders of this
Note and of any Note issued upon the registration of transfer hereof or in
exchange hereof or in lieu hereof whether or not notation of such consent or
waiver is made upon this Note. The Indenture also permits the Indenture Trustee
to amend or waive certain terms and conditions set forth in the Indenture
without the consent of Holders of the Notes issued thereunder.
The term "Issuer" as used in this Note includes any successor
to the Issuer under the Indenture.
The Notes are issuable only in registered form in
denominations as provided in the Indenture, subject to certain limitations
therein set forth.
This Note and the Indenture shall be construed in accordance
with the laws of the State of New York, without reference to its conflict of law
provisions, and the obligations, rights and remedies of the parties hereunder
and thereunder shall be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the Issuer,
which is absolute and unconditional, to pay the principal of and interest on
this Note at the times, place and rate, and in the coin or currency herein
prescribed.
Anything herein to the contrary notwithstanding, except as
expressly provided in the Basic Documents, none of Wilmington Trust Company in
its individual capacity, Deutsche Bank Trust Company Americas in its individual
capacity, any owner of a beneficial interest in the Issuer, the Seller, the
Servicer, or any of their respective partners, beneficiaries, agents, officers,
directors, employees or successors or assigns shall be personally liable for,
nor shall recourse be had to any of them for, the payment of principal of or
interest on this Note or performance of, or omission to perform, any of the
covenants, obligations or indemnifications contained in the Indenture. The
Holder of this Note by its acceptance hereof agrees that, except as expressly
provided in the Basic Documents, in the case of an Event of Default under the
Indenture, the Holder shall have no claim against any of the foregoing for any
deficiency, loss or claim therefrom; provided, however, that nothing contained
herein shall be taken to prevent recourse to, and enforcement against, the
assets of the Issuer for any and all liabilities, obligations and undertakings
contained in the Indenture or in this Note.
8
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
--------------------------------------------------
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto:
-----------------------------------------------------------------------
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints ____________________________________________, attorney, to transfer
said Note on the books kept for registration thereof, with full power of
substitution in the premises.
Dated: */
Signature Guaranteed:
*/
-----------------
*/ NOTICE: The signature to this assignment must correspond with the name
of the registered owner as it appears on the face of the within Note in
every particular, without alteration, enlargement or any change
whatsoever. Such signature must be guaranteed by an "eligible guarantor
institution" meeting the requirements of the Note Registrar, which
requirements include membership or participation in STAMP or such other
"signature guarantee program" as may be determined by the Note
Registrar in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.
9
EXHIBIT A-3
[FORM OF CLASS A-3 NOTE]
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), NEW YORK, NEW
YORK, TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC) ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET
FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY
TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
1
REGISTERED: $280,000,000(3) CUSIP ▇▇. ▇▇▇▇▇▇ ▇▇ ▇
▇▇. ▇-▇
BMW VEHICLE OWNER TRUST 2006-A
5.13% ASSET BACKED NOTE, CLASS A-3
BMW VEHICLE OWNER TRUST 2006-A, a statutory trust organized
and existing under the laws of the State of Delaware (herein referred to as the
"Issuer"), for value received, hereby promises to pay to Cede &Co., or
registered assigns, the principal sum of TWO HUNDRED EIGHTY MILLION DOLLARS,
payable on each Payment Date in an amount equal to the result obtained by
multiplying (i) $280,000,000 by (ii) the aggregate amount, if any, payable from
the Note Distribution Account in respect of principal on the Class A-3 Notes
pursuant to Section 3.01 of the Indenture dated as of September 1, 2006 (the
"Indenture"), between the Issuer and Deutsche Bank Trust Company Americas, a New
York banking corporation, as Indenture Trustee (the "Indenture Trustee");
provided, however, that the entire unpaid principal amount of this Note shall be
due and payable on September 27, 2010 (the "Class A-3 Final Scheduled Payment
Date"). No payments of principal of the Class A-3 Notes shall be made until the
Class A-1 Notes and the Class A-2 Notes have been paid in full. Capitalized
terms used but not defined herein are defined in the Indenture, which also
contains rules as to construction that shall be applicable herein.
The Issuer will pay interest on this Note at the rate per
annum set forth above, on each Payment Date until the principal of this Note is
paid or made available for payment, on the principal amount of this Note
outstanding on the preceding Payment Date (after giving effect to all payments
of principal made on the preceding Payment Date), subject to certain limitations
contained in the last sentence of Section 3.01 of the Indenture. Interest on
this Note will accrue for each Payment Date from and including the 25th day of
the month preceding the month of such Payment Date (or, in the case of the first
Payment Date, from the Closing Date) to but excluding the 25th day of the month
of such Payment Date. Interest will be computed on the basis of a 360-day year
of twelve 30-day months. Such principal of and interest on this Note shall be
paid in the manner specified on the reverse hereof.
The principal of and interest on this Note are payable in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts. All payments made by the
Issuer with respect to this Note shall be applied first to interest due and
payable on this Note as provided above and then to the unpaid principal of this
Note.
Reference is made to the further provisions of this Note set
forth on the reverse hereof, which shall have the same effect as though fully
set forth on the face of this Note.
--------
(1) Denominations of $1,000 and integral multiples of $1,000 in excess thereof.
2
Unless the certificate of authentication hereon has been
executed by the Indenture Trustee whose name appears below by manual signature,
this Note shall not be entitled to any benefit under the Indenture, or be valid
or obligatory for any purpose.
3
IN WITNESS WHEREOF, the Issuer has caused this instrument to
be signed, manually or in facsimile, by its Authorized Officer, as of the date
set forth below.
Date: BMW VEHICLE OWNER TRUST 2006-A
By: WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as
Owner Trustee under the Trust
Agreement,
By: _________________________________
Authorized Signatory
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
Date: DEUTSCHE BANK TRUST COMPANY AMERICAS,
not in its individual capacity but
solely as Indenture Trustee,
By:_______________________________
Authorized Officer
4
REVERSE OF CLASS A-3 NOTE
This Note is one of a duly authorized issue of Notes of the
Issuer, designated as its 5.13% Asset Backed Notes, Class A-3 (herein called the
"Class A-3 Notes"), all issued under the Indenture, to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights and obligations thereunder of the Issuer, the Indenture
Trustee and the Holders of the Notes. The Class A-3 Notes are subject to all
terms of the Indenture.
The Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes
and the Class A-4 Notes (collectively, the "Class A Notes" and together with the
Class B Notes, the "Notes") are and will be secured by the collateral pledged as
security therefor as provided in the Indenture.
Principal of the Class A-3 Notes will be payable on each
Payment Date in an amount described on the face hereof only after the Class A-1
Notes and the Class A-2 Notes are paid in full and have no Outstanding Amount.
"Payment Date" means the 25th day of each month, or, if any such date is not a
Business Day, the next succeeding Business Day, commencing October 25, 2006.
As described above, the entire unpaid principal amount of this
Note shall be due and payable on the Class A-3 Final Scheduled Payment Date.
Notwithstanding the foregoing, if an Event of Default occurs, the Indenture
Trustee or the Holders of Notes representing not less than a majority of the
Outstanding Amount of the Notes of the Controlling Class have declared the Notes
to be immediately due and payable in the manner provided in Section 5.02 of the
Indenture. All principal payments on the Class A-3 Notes shall be made pro rata
to the Class A-3 Noteholders entitled thereto.
Payments of interest on this Note due and payable on each
Payment Date, together with the installment of principal, if any, to the extent
not in full payment of this Note, shall be made by check mailed to the Person
whose name appears as the Registered Holder of this Note (or one or more
Predecessor Notes) on the Note Register as of the close of business on each
Record Date, except that with respect to Notes registered on the Record Date in
the name of the nominee of the Clearing Agency (initially, such nominee to be
Cede & Co.), payments will be made by wire transfer in immediately available
funds to the account designated by such nominee. Such checks shall be mailed to
the Person entitled thereto at the address of such Person as it appears on the
Note Register as of the applicable Record Date without requiring that this Note
be submitted for notation of payment. Any reduction in the principal amount of
this Note (or any one or more Predecessor Notes) effected by any payments made
on any Payment Date shall be binding upon all future Holders of this Note and of
any Note issued upon the registration of transfer hereof or in exchange hereof
or in lieu hereof, whether or not noted hereon. If funds are expected to be
available, as provided in the Indenture, for payment in full of the then
remaining unpaid principal amount of this Note on a Payment Date, then the
Indenture Trustee, in the name of and on behalf of the Issuer, will notify the
Person who was the Registered Holder hereof as of the Record Date preceding such
5
Payment Date by notice mailed or transmitted by facsimile prior to such Payment
Date, and the amount then due and payable shall be payable only upon
presentation and surrender of this Note at the Indenture Trustee's principal
Corporate Trust Office or at the office of the Indenture Trustee's agent
appointed for such purposes located in The City of New York.
The Issuer shall pay interest on overdue installments of
interest at the Class A-3 Rate to the extent lawful.
As provided in the Indenture and subject to the limitations
set forth therein and on the face hereof, the transfer of this Note may be
registered on the Note Register upon surrender of this Note for registration of
transfer at the office or agency designated by the Issuer pursuant to the
Indenture, duly endorsed by, or accompanied by a written instrument of transfer
in form satisfactory to the Indenture Trustee duly executed by, the Holder
hereof or such Holder's attorney duly authorized in writing, with such signature
guaranteed by an "eligible guarantor institution" meeting the requirements of
the Note Registrar, which requirements include membership or participation in
the Securities Transfer Agent's Medallion Program ("STAMP") or such other
"signature guarantee program" as may be determined by the Note Registrar in
addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended, and thereupon one or more new Notes
of authorized denominations and in the same aggregate principal amount will be
issued to the designated transferee or transferees. No service charge will be
charged for any registration of transfer or exchange of this Note, but the
transferor may be required to pay a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any such registration
of transfer or exchange subject to certain exceptions set forth in the
Indenture.
Each Noteholder or Note Owner, by acceptance of a Note or, in
the case of a Note Owner, a beneficial interest in a Note, covenants and agrees
that no recourse may be taken, directly or indirectly, with respect to the
obligations of the Issuer, the Owner Trustee or the Indenture Trustee on the
Notes or under the Indenture or any certificate or other writing delivered in
connection therewith, against (i) the Seller, the Servicer, the Indenture
Trustee or the Owner Trustee in its individual capacity, (ii) any owner of a
beneficial interest in the Issuer, including the Seller or (iii) any partner,
owner, beneficiary, agent, officer, director or employee of the Seller, the
Servicer, Indenture Trustee or the Owner Trustee in its individual capacity, any
holder of a beneficial interest in the Issuer, the Seller, the Servicer, the
Owner Trustee or the Indenture Trustee or of any successor or assign of the
Indenture Trustee or the Owner Trustee in its individual capacity, except as any
such Person may have expressly agreed and except that any such partner, owner or
beneficiary shall be fully liable, to the extent provided by applicable law, for
any unpaid consideration for stock, unpaid capital contribution or failure to
pay any installment or call owing to such entity.
Each Noteholder or Note Owner, by acceptance of a Note or, in
the case of a Note Owner, a beneficial interest in a Note, covenants and agrees
by accepting the benefits of the Indenture that such Noteholder or Note Owner
will not at any time institute against the Issuer, or join in any institution
against the Issuer of, any bankruptcy, reorganization, arrangement, insolvency
6
or liquidation proceedings under any United States federal or state bankruptcy
or similar law in connection with any obligations relating to the Notes, the
Indenture or the other Basic Documents.
The Issuer has entered into the Indenture and this Note is
issued with the intention that, for purposes of federal and state income tax,
franchise tax and any other tax measured in whole or in part by income, the
Notes will qualify as indebtedness secured by the Trust Estate. Each Noteholder,
by acceptance of a Note (and each Note Owner by acceptance of a beneficial
interest in a Note), agrees to treat the Notes for such purposes as
indebtedness.
This Note, or any interest therein, may not be transferred to
an "employee benefit plan" within the meaning of Section 3(3) of ERISA that is
subject to ERISA, a "plan" described in Section 4975(e)(1) of the Code, any
entity that is deemed to hold "plan assets" of any of the foregoing by reason of
an employee benefit plan's or other plan's investment in such entity, or any
governmental plan subject to applicable law that is substantially similar to the
fiduciary responsibility provisions of ERISA or Section 4975 of the Code, unless
such transferee represents, warrants and covenants that its purchase and holding
of this note is and will be eligible for, and satisfies and will satisfy all the
requirements of Section 408(b)(17) of ERISA or of, Department of Labor
prohibited transaction class exemption ("PTE") 90-1; PTE 96-23; PTE 95-60; PTE
91-38; PTE 84-14 or another applicable prohibited transaction exemption (or in
the case of a governmental plan, will not violate any applicable law that is
substantially similar to ERISA or Section 4975 of the Code). By its acquisition
of this Note in book-entry form or any interest therein, each transferee will be
deemed to have represented, warranted and covenanted that it satisfies the
foregoing requirements and the Indenture Trustee may relay conclusively on the
same for purposes hereof.
Prior to the due presentment for registration of transfer of
this Note, the Issuer, the Indenture Trustee and any agent of the Issuer or the
Indenture Trustee may treat the Person in whose name this Note (as of the day of
determination or as of such other date as may be specified in the Indenture) is
registered as the owner hereof for all purposes, whether or not this Note be
overdue, and none of the Issuer, the Indenture Trustee or any such agent shall
be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Issuer and the rights of the Holders of the Notes under the
Indenture at any time by the Issuer with the consent of the Holders of Notes or
the Controlling Class of Notes, as applicable, representing a majority of the
Outstanding Amount of all Notes or Controlling Class of Notes at the time
Outstanding. The Indenture also contains provisions permitting Holders of Notes
representing specified percentages of the Outstanding Amount of the Notes of the
Controlling Class, on behalf of the Holders of all the Notes, to waive
compliance by the Issuer with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Note (or any one or more Predecessor Notes) shall
7
be conclusive and binding upon such Holder and upon all future Holders of this
Note and of any Note issued upon the registration of transfer hereof or in
exchange hereof or in lieu hereof whether or not notation of such consent or
waiver is made upon this Note. The Indenture also permits the Indenture Trustee
to amend or waive certain terms and conditions set forth in the Indenture
without the consent of Holders of the Notes issued thereunder.
The term "Issuer" as used in this Note includes any successor
to the Issuer under the Indenture.
The Notes are issuable only in registered form in
denominations as provided in the Indenture, subject to certain limitations
therein set forth.
This Note and the Indenture shall be construed in accordance
with the laws of the State of New York, without reference to its conflict of law
provisions, and the obligations, rights and remedies of the parties hereunder
and thereunder shall be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the Issuer,
which is absolute and unconditional, to pay the principal of and interest on
this Note at the times, place and rate, and in the coin or currency herein
prescribed.
Anything herein to the contrary notwithstanding, except as
expressly provided in the Basic Documents, none of Wilmington Trust Company in
its individual capacity, Deutsche Bank Trust Company Americas in its individual
capacity, any owner of a beneficial interest in the Issuer, the Seller, the
Servicer, or any of their respective partners, beneficiaries, agents, officers,
directors, employees or successors or assigns shall be personally liable for,
nor shall recourse be had to any of them for, the payment of principal of or
interest on this Note or performance of, or omission to perform, any of the
covenants, obligations or indemnifications contained in the Indenture. The
Holder of this Note by its acceptance hereof agrees that, except as expressly
provided in the Basic Documents, in the case of an Event of Default under the
Indenture, the Holder shall have no claim against any of the foregoing for any
deficiency, loss or claim therefrom; provided, however, that nothing contained
herein shall be taken to prevent recourse to, and enforcement against, the
assets of the Issuer for any and all liabilities, obligations and undertakings
contained in the Indenture or in this Note.
8
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
--------------------------------------------------
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto:
-----------------------------------------------------------------------
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints ____________________________________________, attorney, to transfer
said Note on the books kept for registration thereof, with full power of
substitution in the premises.
Dated: */
Signature Guaranteed:
*/
-----------------
*/ NOTICE: The signature to this assignment must correspond with the name
of the registered owner as it appears on the face of the within Note in
every particular, without alteration, enlargement or any change
whatsoever. Such signature must be guaranteed by an "eligible guarantor
institution" meeting the requirements of the Note Registrar, which
requirements include membership or participation in STAMP or such other
"signature guarantee program" as may be determined by the Note
Registrar in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.
9
EXHIBIT A-4
[FORM OF CLASS A-4 NOTE]
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), NEW YORK, NEW
YORK, TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC) ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET
FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY
TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
1
REGISTERED $173,044,000(4) CUSIP NO. 055670 AD 5
No. R-1
BMW VEHICLE OWNER TRUST 2006-A
5.07% ASSET BACKED NOTE, CLASS A-4
BMW VEHICLE OWNER TRUST 2006-A, a statutory trust organized
and existing under the laws of the State of Delaware (herein referred to as the
"Issuer"), for value received, hereby promises to pay to Cede & Co., or
registered assigns, the principal sum of ONE HUNDRED SEVENTY-THREE MILLION
FORTY-FOUR THOUSAND DOLLARS, payable on each Payment Date in an amount equal to
the result obtained by multiplying (i) $173,044,000 by (ii) the aggregate
amount, if any, payable from the Note Distribution Account in respect of
principal on the Class A-4 Notes pursuant to Section 3.01 of the Indenture dated
as of September 1, 2006 (the "Indenture"), between the Issuer and Deutsche Bank
Trust Company Americas, a New York banking corporation, as Indenture Trustee
(the "Indenture Trustee"); provided, however, that the entire unpaid principal
amount of this Note shall be due and payable on the earlier of August 25, 2011
(the "Class A-4 Final Scheduled Payment Date") and the Redemption Date, if any,
pursuant to Section 10.01 of the Indenture. No payments of principal of the
Class A-4 Notes shall be made until the Class A-1 Notes, the Class A-2 Notes and
the Class A-3 Notes have been paid in full. Capitalized terms used but not
defined herein are defined in the Indenture, which also contains rules as to
construction that shall be applicable herein.
The Issuer will pay interest on this Note at the rate per
annum set forth above, on each Payment Date until the principal of this Note is
paid or made available for payment, on the principal amount of this Note
outstanding on the preceding Payment Date (after giving effect to all payments
of principal made on the preceding Payment Date), subject to certain limitations
contained in the last sentence of Section 3.01 of the Indenture. Interest on
this Note will accrue for each Payment Date from and including the 25th day of
the month preceding the month of such Payment Date (or, in the case of the first
Payment Date, from the Closing Date) to but excluding the 25th day of the month
of such Payment Date. Interest will be computed on the basis of a 360-day year
of twelve 30-day months. Such principal of and interest on this Note shall be
paid in the manner specified on the reverse hereof.
The principal of and interest on this Note are payable in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts. All payments made by the
Issuer with respect to this Note shall be applied first to interest due and
payable on this Note as provided above and then to the unpaid principal of this
Note.
--------
(1) Denominations of $1,000 and integral multiples of $1,000 in excess thereof.
2
Reference is made to the further provisions of this Note set
forth on the reverse hereof, which shall have the same effect as though fully
set forth on the face of this Note.
Unless the certificate of authentication hereon has been
executed by the Indenture Trustee whose name appears below by manual signature,
this Note shall not be entitled to any benefit under the Indenture, or be valid
or obligatory for any purpose.
3
IN WITNESS WHEREOF, the Issuer has caused this instrument to
be signed, manually or in facsimile, by its Authorized Officer, as of the date
set forth below.
Date: BMW VEHICLE OWNER TRUST 2006-A
By: WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as
Owner Trustee under the Trust
Agreement,
By: _________________________________
Authorized Signatory
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
Date: DEUTSCHE BANK TRUST COMPANY AMERICAS,
not in its individual capacity but
solely as Indenture Trustee,
By:_______________________________
Authorized Officer
4
REVERSE OF CLASS A-4 NOTE
This Note is one of a duly authorized issue of Notes of the
Issuer, designated as its 5.07% Asset Backed Notes, Class A-4 (herein called the
"Class A-4 Notes"), all issued under the Indenture, to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights and obligations thereunder of the Issuer, the Indenture
Trustee and the Holders of the Notes. The Class A-4 Notes are subject to all
terms of the Indenture.
The Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes
and the Class A-4 Notes (collectively, the "Class A Notes" and together with the
Class B Notes, the "Notes") are and will be secured by the collateral pledged as
security therefor as provided in the Indenture.
Principal of the Class A-4 Notes will be payable on each
Payment Date in an amount described on the face hereof only after the Class A-1
Notes and the Class A-2 Notes and the Class A-3 Notes are paid in full and have
no Outstanding Amount. "Payment Date" means the 25th day of each month, or, if
any such date is not a Business Day, the next succeeding Business Day,
commencing October 25, 2006.
As described above, the entire unpaid principal amount of this
Note shall be due and payable on the Class A-4 Final Scheduled Payment Date.
Notwithstanding the foregoing, if an Event of Default occurs, the Indenture
Trustee or the Holders of Notes representing not less than a majority of the
Outstanding Amount of the Notes of the Controlling Class have declared the Notes
to be immediately due and payable in the manner provided in Section 5.02 of the
Indenture. All principal payments on the Class A-4 Notes shall be made pro rata
to the Class A-4 Noteholders entitled thereto.
Payments of interest on this Note due and payable on each
Payment Date, together with the installment of principal, if any, to the extent
not in full payment of this Note, shall be made by check mailed to the Person
whose name appears as the Registered Holder of this Note (or one or more
Predecessor Notes) on the Note Register as of the close of business on each
Record Date, except that with respect to Notes registered on the Record Date in
the name of the nominee of the Clearing Agency (initially, such nominee to be
Cede & Co.), payments will be made by wire transfer in immediately available
funds to the account designated by such nominee. Such checks shall be mailed to
the Person entitled thereto at the address of such Person as it appears on the
Note Register as of the applicable Record Date without requiring that this Note
be submitted for notation of payment. Any reduction in the principal amount of
this Note (or any one or more Predecessor Notes) effected by any payments made
on any Payment Date shall be binding upon all future Holders of this Note and of
any Note issued upon the registration of transfer hereof or in exchange hereof
or in lieu hereof, whether or not noted hereon. If funds are expected to be
available, as provided in the Indenture, for payment in full of the then
remaining unpaid principal amount of this Note on a Payment Date, then the
Indenture Trustee, in the name of and on behalf of the Issuer, will notify the
Person who was the Registered Holder hereof as of the Record Date preceding such
5
Payment Date by notice mailed or transmitted by facsimile prior to such Payment
Date, and the amount then due and payable shall be payable only upon
presentation and surrender of this Note at the Indenture Trustee's principal
Corporate Trust Office or at the office of the Indenture Trustee's agent
appointed for such purposes located in The City of New York.
The Issuer shall pay interest on overdue installments of
interest at the Class A-4 Rate to the extent lawful.
As provided in the Indenture and subject to the limitations
set forth therein and on the face hereof, the transfer of this Note may be
registered on the Note Register upon surrender of this Note for registration of
transfer at the office or agency designated by the Issuer pursuant to the
Indenture, duly endorsed by, or accompanied by a written instrument of transfer
in form satisfactory to the Indenture Trustee duly executed by, the Holder
hereof or such Holder's attorney duly authorized in writing, with such signature
guaranteed by an "eligible guarantor institution" meeting the requirements of
the Note Registrar, which requirements include membership or participation in
the Securities Transfer Agent's Medallion Program ("STAMP") or such other
"signature guarantee program" as may be determined by the Note Registrar in
addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended, and thereupon one or more new Notes
of authorized denominations and in the same aggregate principal amount will be
issued to the designated transferee or transferees. No service charge will be
charged for any registration of transfer or exchange of this Note, but the
transferor may be required to pay a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any such registration
of transfer or exchange subject to certain exceptions set forth in the
Indenture.
Each Noteholder or Note Owner, by acceptance of a Note or, in
the case of a Note Owner, a beneficial interest in a Note, covenants and agrees
that no recourse may be taken, directly or indirectly, with respect to the
obligations of the Issuer, the Owner Trustee or the Indenture Trustee on the
Notes or under the Indenture or any certificate or other writing delivered in
connection therewith, against (i) the Seller, the Servicer, the Indenture
Trustee or the Owner Trustee in its individual capacity, (ii) any owner of a
beneficial interest in the Issuer, including the Seller or (iii) any partner,
owner, beneficiary, agent, officer, director or employee of the Seller, the
Servicer, Indenture Trustee or the Owner Trustee in its individual capacity, any
holder of a beneficial interest in the Issuer, the Seller, the Servicer, the
Owner Trustee or the Indenture Trustee or of any successor or assign of the
Indenture Trustee or the Owner Trustee in its individual capacity, except as any
such Person may have expressly agreed and except that any such partner, owner or
beneficiary shall be fully liable, to the extent provided by applicable law, for
any unpaid consideration for stock, unpaid capital contribution or failure to
pay any installment or call owing to such entity.
Each Noteholder or Note Owner, by acceptance of a Note or, in
the case of a Note Owner, a beneficial interest in a Note, covenants and agrees
by accepting the benefits of the Indenture that such Noteholder or Note Owner
will not at any time institute against the Issuer, or join in any institution
against the Issuer of, any bankruptcy, reorganization, arrangement, insolvency
6
or liquidation proceedings under any United States federal or state bankruptcy
or similar law in connection with any obligations relating to the Notes, the
Indenture or the other Basic Documents.
The Issuer has entered into the Indenture and this Note is
issued with the intention that, for purposes of federal and state income tax,
franchise tax and any other tax measured in whole or in part by income, the
Notes will qualify as indebtedness secured by the Trust Estate. Each Noteholder,
by acceptance of a Note (and each Note Owner by acceptance of a beneficial
interest in a Note), agrees to treat the Notes for such purposes as
indebtedness.
This Note, or any interest therein, may not be transferred to
an "employee benefit plan" within the meaning of Section 3(3) of ERISA that is
subject to ERISA, a "plan" described in Section 4975(e)(1) of the Code, any
entity that is deemed to hold "plan assets" of any of the foregoing by reason of
an employee benefit plan's or other plan's investment in such entity, or any
governmental plan subject to applicable law that is substantially similar to the
fiduciary responsibility provisions of ERISA or Section 4975 of the Code, unless
such transferee represents, warrants and covenants that its purchase and holding
of this note is and will be eligible for, and satisfies and will satisfy all the
requirements of Section 408(b)(17) of ERISA or of, Department of Labor
prohibited transaction class exemption ("PTE") 90-1; PTE 96-23; PTE 95-60; PTE
91-38; PTE 84-14 or another applicable prohibited transaction exemption (or in
the case of a governmental plan, will not violate any applicable law that is
substantially similar to ERISA or Section 4975 of the Code). By its acquisition
of this Note in book-entry form or any interest therein, each transferee will be
deemed to have represented, warranted and covenanted that it satisfies the
foregoing requirements and the Indenture Trustee may relay conclusively on the
same for purposes hereof.
Prior to the due presentment for registration of transfer of
this Note, the Issuer, the Indenture Trustee and any agent of the Issuer or the
Indenture Trustee may treat the Person in whose name this Note (as of the day of
determination or as of such other date as may be specified in the Indenture) is
registered as the owner hereof for all purposes, whether or not this Note be
overdue, and none of the Issuer, the Indenture Trustee or any such agent shall
be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Issuer and the rights of the Holders of the Notes under the
Indenture at any time by the Issuer with the consent of the Holders of Notes or
the Controlling Class of Notes, as applicable, representing a majority of the
Outstanding Amount of all Notes or Controlling Class of Notes at the time
Outstanding. The Indenture also contains provisions permitting Holders of Notes
representing specified percentages of the Outstanding Amount of the Notes of the
Controlling Class, on behalf of the Holders of all the Notes, to waive
compliance by the Issuer with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Note (or any one or more Predecessor Notes) shall
7
be conclusive and binding upon such Holder and upon all future Holders of this
Note and of any Note issued upon the registration of transfer hereof or in
exchange hereof or in lieu hereof whether or not notation of such consent or
waiver is made upon this Note. The Indenture also permits the Indenture Trustee
to amend or waive certain terms and conditions set forth in the Indenture
without the consent of Holders of the Notes issued thereunder.
The term "Issuer" as used in this Note includes any successor
to the Issuer under the Indenture.
The Notes are issuable only in registered form in
denominations as provided in the Indenture, subject to certain limitations
therein set forth.
This Note and the Indenture shall be construed in accordance
with the laws of the State of New York, without reference to its conflict of law
provisions, and the obligations, rights and remedies of the parties hereunder
and thereunder shall be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the Issuer,
which is absolute and unconditional, to pay the principal of and interest on
this Note at the times, place and rate, and in the coin or currency herein
prescribed.
Anything herein to the contrary notwithstanding, except as
expressly provided in the Basic Documents, none of Wilmington Trust Company in
its individual capacity, Deutsche Bank Trust Company Americas in its individual
capacity, any owner of a beneficial interest in the Issuer, the Seller, the
Servicer, or any of their respective partners, beneficiaries, agents, officers,
directors, employees or successors or assigns shall be personally liable for,
nor shall recourse be had to any of them for, the payment of principal of or
interest on this Note or performance of, or omission to perform, any of the
covenants, obligations or indemnifications contained in the Indenture. The
Holder of this Note by its acceptance hereof agrees that, except as expressly
provided in the Basic Documents, in the case of an Event of Default under the
Indenture, the Holder shall have no claim against any of the foregoing for any
deficiency, loss or claim therefrom; provided, however, that nothing contained
herein shall be taken to prevent recourse to, and enforcement against, the
assets of the Issuer for any and all liabilities, obligations and undertakings
contained in the Indenture or in this Note.
8
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
--------------------------------------------------
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto:
-----------------------------------------------------------------------
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints ____________________________________________, attorney, to transfer
said Note on the books kept for registration thereof, with full power of
substitution in the premises.
Dated: */
Signature Guaranteed:
*/
-----------------
*/ NOTICE: The signature to this assignment must correspond with the name
of the registered owner as it appears on the face of the within Note in
every particular, without alteration, enlargement or any change
whatsoever. Such signature must be guaranteed by an "eligible guarantor
institution" meeting the requirements of the Note Registrar, which
requirements include membership or participation in STAMP or such other
"signature guarantee program" as may be determined by the Note
Registrar in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.
9
EXHIBIT A-5
[FORM OF CLASS B NOTE]
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), NEW YORK, NEW
YORK, TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC) ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET
FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY
TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
1
REGISTERED $24,952,000(5) CUSIP ▇▇. ▇▇▇▇▇▇ ▇▇ ▇
▇▇. ▇-▇
BMW VEHICLE OWNER TRUST 2006-A
5.19% ASSET BACKED NOTE, CLASS B
BMW VEHICLE OWNER TRUST 2006-A, a statutory trust organized
and existing under the laws of the State of Delaware (herein referred to as the
"Issuer"), for value received, hereby promises to pay to Cede & Co., or
registered assigns, the principal sum of TWENTY-FOUR MILLION NINE HUNDRED
FIFTY-TWO THOUSAND DOLLARS, payable on each Payment Date in an amount equal to
the result obtained by multiplying (i) $24,952,000 by (ii) the aggregate amount,
if any, payable from the Note Distribution Account in respect of principal on
the Class B Notes pursuant to Section 3.01 of the Indenture dated as of
September 1, 2006 (the "Indenture"), between the Issuer and Deutsche Bank Trust
Company Americas, a New York banking corporation, as Indenture Trustee (the
"Indenture Trustee"); provided, however, that the entire unpaid principal amount
of this Note shall be due and payable on the earlier of June 25, 2013 (the
"Class B Final Scheduled Payment Date") and the Redemption Date, if any,
pursuant to Section 10.01 of the Indenture. No payments of principal of the
Class B Notes shall be made until the Class A-1 Notes, the Class A-2 Notes, the
Class A-3 Notes and Class A-4 Notes have been paid in full. Capitalized terms
used but not defined herein are defined in the Indenture, which also contains
rules as to construction that shall be applicable herein.
The Issuer will pay interest on this Note at the rate per
annum set forth above, on each Payment Date until the principal of this Note is
paid or made available for payment, on the principal amount of this Note
outstanding on the preceding Payment Date (after giving effect to all payments
of principal made on the preceding Payment Date), subject to certain limitations
contained in the last sentence of Section 3.01 of the Indenture. Interest on
this Note will accrue for each Payment Date from and including the 25th day of
the month preceding the month of such Payment Date (or, in the case of the first
Payment Date, from the Closing Date) to but excluding the 25th day of the month
of such Payment Date. Interest will be computed on the basis of a 360-day year
of twelve 30-day months. Such principal of and interest on this Note shall be
paid in the manner specified on the reverse hereof.
The principal of and interest on this Note are payable in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts. All payments made by the
Issuer with respect to this Note shall be applied first to interest due and
payable on this Note as provided above and then to the unpaid principal of this
Note.
--------
(1) Denominations of $1,000 and integral multiples of $1,000 in excess thereof.
2
Reference is made to the further provisions of this Note set
forth on the reverse hereof, which shall have the same effect as though fully
set forth on the face of this Note.
Unless the certificate of authentication hereon has been
executed by the Indenture Trustee whose name appears below by manual signature,
this Note shall not be entitled to any benefit under the Indenture, or be valid
or obligatory for any purpose.
3
IN WITNESS WHEREOF, the Issuer has caused this instrument to
be signed, manually or in facsimile, by its Authorized Officer, as of the date
set forth below.
Date: BMW VEHICLE OWNER TRUST 2006-A
By: WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as
Owner Trustee under the Trust
Agreement,
By: _________________________________
Authorized Signatory
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
Date: DEUTSCHE BANK TRUST COMPANY AMERICAS,
not in its individual capacity but
solely as Indenture Trustee,
By:_______________________________
Authorized Officer
4
REVERSE OF CLASS B NOTE
This Note is one of a duly authorized issue of Notes of the
Issuer, designated as its 5.19% Asset Backed Notes, Class B (herein called the
"Class B Notes"), all issued under the Indenture, to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights and obligations thereunder of the Issuer, the Indenture
Trustee and the Holders of the Notes. The Class B Notes are subject to all terms
of the Indenture.
The Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes,
the Class A-4 Notes (collectively, the "Class A Notes") and the Class B Notes
(the "Class B Notes" and together with the Class A Notes, the "Notes") are and
will be secured by the collateral pledged as security therefor as provided in
the Indenture. The Class B Notes are subordinated in right of payment to the
Class A Notes, to the extent provided in the Indenture.
Principal of the Class B Notes will be payable on each Payment
Date in an amount described on the face hereof only after the Class A Notes are
paid in full and have no Outstanding Amount. "Payment Date" means the 25th day
of each month, or, if any such date is not a Business Day, the next succeeding
Business Day, commencing October 25, 2006.
As described above, the entire unpaid principal amount of this
Note shall be due and payable on the earlier of the Class B Final Scheduled
Payment Date and the Redemption Date, if any, pursuant to Section 10.01 of the
Indenture. Notwithstanding the foregoing, if an Event of Default occurs, the
Indenture Trustee or the Holders of Notes representing not less than a majority
of the Outstanding Amount of the Notes of the Controlling Class have declared
the Notes to be immediately due and payable in the manner provided in Section
5.02 of the Indenture. All principal payments on the Class B Notes shall be made
pro rata to the Class B Noteholders entitled thereto.
Payments of interest on this Note due and payable on each
Payment Date, together with the installment of principal, if any, to the extent
not in full payment of this Note, shall be made by check mailed to the Person
whose name appears as the Registered Holder of this Note (or one or more
Predecessor Notes) on the Note Register as of the close of business on each
Record Date, except that with respect to Notes registered on the Record Date in
the name of the nominee of the Clearing Agency (initially, such nominee to be
Cede & Co.), payments will be made by wire transfer in immediately available
funds to the account designated by such nominee. Such checks shall be mailed to
the Person entitled thereto at the address of such Person as it appears on the
Note Register as of the applicable Record Date without requiring that this Note
be submitted for notation of payment. Any reduction in the principal amount of
this Note (or any one or more Predecessor Notes) effected by any payments made
on any Payment Date shall be binding upon all future Holders of this Note and of
any Note issued upon the registration of transfer hereof or in exchange hereof
or in lieu hereof, whether or not noted hereon. If funds are expected to be
available, as provided in the Indenture, for payment in full of the then
5
remaining unpaid principal amount of this Note on a Payment Date, then the
Indenture Trustee, in the name of and on behalf of the Issuer, will notify the
Person who was the Registered Holder hereof as of the Record Date preceding such
Payment Date by notice mailed or transmitted by facsimile prior to such Payment
Date, and the amount then due and payable shall be payable only upon
presentation and surrender of this Note at the Indenture Trustee's principal
Corporate Trust Office or at the office of the Indenture Trustee's agent
appointed for such purposes located in The City of New York.
The Issuer shall pay interest on overdue installments of
interest at the Class B Rate to the extent lawful.
As provided in the Indenture and subject to the limitations
set forth therein and on the face hereof, the transfer of this Note may be
registered on the Note Register upon surrender of this Note for registration of
transfer at the office or agency designated by the Issuer pursuant to the
Indenture, duly endorsed by, or accompanied by a written instrument of transfer
in form satisfactory to the Indenture Trustee duly executed by, the Holder
hereof or such Holder's attorney duly authorized in writing, with such signature
guaranteed by an "eligible guarantor institution" meeting the requirements of
the Note Registrar, which requirements include membership or participation in
the Securities Transfer Agent's Medallion Program ("STAMP") or such other
"signature guarantee program" as may be determined by the Note Registrar in
addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended, and thereupon one or more new Notes
of authorized denominations and in the same aggregate principal amount will be
issued to the designated transferee or transferees. No service charge will be
charged for any registration of transfer or exchange of this Note, but the
transferor may be required to pay a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any such registration
of transfer or exchange subject to certain exceptions set forth in the
Indenture.
Each Noteholder or Note Owner, by acceptance of a Note or, in
the case of a Note Owner, a beneficial interest in a Note, covenants and agrees
that no recourse may be taken, directly or indirectly, with respect to the
obligations of the Issuer, the Owner Trustee or the Indenture Trustee on the
Notes or under the Indenture or any certificate or other writing delivered in
connection therewith, against (i) the Seller, the Servicer, the Indenture
Trustee or the Owner Trustee in its individual capacity, (ii) any owner of a
beneficial interest in the Issuer, including the Seller or (iii) any partner,
owner, beneficiary, agent, officer, director or employee of the Seller, the
Servicer, Indenture Trustee or the Owner Trustee in its individual capacity, any
holder of a beneficial interest in the Issuer, the Seller, the Servicer, the
Owner Trustee or the Indenture Trustee or of any successor or assign of the
Indenture Trustee or the Owner Trustee in its individual capacity, except as any
such Person may have expressly agreed and except that any such partner, owner or
beneficiary shall be fully liable, to the extent provided by applicable law, for
any unpaid consideration for stock, unpaid capital contribution or failure to
pay any installment or call owing to such entity.
6
Each Noteholder or Note Owner, by acceptance of a Note or, in
the case of a Note Owner, a beneficial interest in a Note, covenants and agrees
by accepting the benefits of the Indenture that such Noteholder or Note Owner
will not at any time institute against the Issuer, or join in any institution
against the Issuer of, any bankruptcy, reorganization, arrangement, insolvency
or liquidation proceedings under any United States federal or state bankruptcy
or similar law in connection with any obligations relating to the Notes, the
Indenture or the other Basic Documents.
The Issuer has entered into the Indenture and this Note is
issued with the intention that, for purposes of federal and state income tax,
franchise tax and any other tax measured in whole or in part by income, the
Notes will qualify as indebtedness secured by the Trust Estate. Each Noteholder,
by acceptance of a Note (and each Note Owner by acceptance of a beneficial
interest in a Note), agrees to treat the Notes for such purposes as
indebtedness.
This Note, or any interest therein, may not be transferred to
an "employee benefit plan" within the meaning of Section 3(3) of ERISA that is
subject to ERISA, a "plan" described in Section 4975(e)(1) of the Code, any
entity that is deemed to hold "plan assets" of any of the foregoing by reason of
an employee benefit plan's or other plan's investment in such entity, or any
governmental plan subject to applicable law that is substantially similar to the
fiduciary responsibility provisions of ERISA or Section 4975 of the Code, unless
such transferee represents, warrants and covenants that its purchase and holding
of this note is and will be eligible for, and satisfies and will satisfy all the
requirements of Section 408(b)(17) of ERISA or of, Department of Labor
prohibited transaction class exemption ("PTE") 90-1; PTE 96-23; PTE 95-60; PTE
91-38; PTE 84-14 or another applicable prohibited transaction exemption (or in
the case of a governmental plan, will not violate any applicable law that is
substantially similar to ERISA or Section 4975 of the Code). By its acquisition
of this Note in book-entry form or any interest therein, each transferee will be
deemed to have represented, warranted and covenanted that it satisfies the
foregoing requirements and the Indenture Trustee may relay conclusively on the
same for purposes hereof.
Prior to the due presentment for registration of transfer of
this Note, the Issuer, the Indenture Trustee and any agent of the Issuer or the
Indenture Trustee may treat the Person in whose name this Note (as of the day of
determination or as of such other date as may be specified in the Indenture) is
registered as the owner hereof for all purposes, whether or not this Note be
overdue, and none of the Issuer, the Indenture Trustee or any such agent shall
be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Issuer and the rights of the Holders of the Notes under the
Indenture at any time by the Issuer with the consent of the Holders of Notes or
the Controlling Class of Notes, as applicable, representing a majority of the
Outstanding Amount of all Notes or Controlling Class of Notes at the time
Outstanding. The Indenture also contains provisions permitting Holders of Notes
representing specified percentages of the Outstanding Amount of the Notes of the
7
Controlling Class, on behalf of the Holders of all the Notes, to waive
compliance by the Issuer with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Note (or any one or more Predecessor Notes) shall
be conclusive and binding upon such Holder and upon all future Holders of this
Note and of any Note issued upon the registration of transfer hereof or in
exchange hereof or in lieu hereof whether or not notation of such consent or
waiver is made upon this Note. The Indenture also permits the Indenture Trustee
to amend or waive certain terms and conditions set forth in the Indenture
without the consent of Holders of the Notes issued thereunder.
The term "Issuer" as used in this Note includes any successor
to the Issuer under the Indenture.
The Notes are issuable only in registered form in
denominations as provided in the Indenture, subject to certain limitations
therein set forth.
This Note and the Indenture shall be construed in accordance
with the laws of the State of New York, without reference to its conflict of law
provisions, and the obligations, rights and remedies of the parties hereunder
and thereunder shall be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the Issuer,
which is absolute and unconditional, to pay the principal of and interest on
this Note at the times, place and rate, and in the coin or currency herein
prescribed.
Anything herein to the contrary notwithstanding, except as
expressly provided in the Basic Documents, none of Wilmington Trust Company in
its individual capacity, Deutsche Bank Trust Company Americas in its individual
capacity, any owner of a beneficial interest in the Issuer, the Seller, the
Servicer, or any of their respective partners, beneficiaries, agents, officers,
directors, employees or successors or assigns shall be personally liable for,
nor shall recourse be had to any of them for, the payment of principal of or
interest on this Note or performance of, or omission to perform, any of the
covenants, obligations or indemnifications contained in the Indenture. The
Holder of this Note by its acceptance hereof agrees that, except as expressly
provided in the Basic Documents, in the case of an Event of Default under the
Indenture, the Holder shall have no claim against any of the foregoing for any
deficiency, loss or claim therefrom; provided, however, that nothing contained
herein shall be taken to prevent recourse to, and enforcement against, the
assets of the Issuer for any and all liabilities, obligations and undertakings
contained in the Indenture or in this Note.
8
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
--------------------------------------------------
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto:
-----------------------------------------------------------------------
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints ____________________________________________, attorney, to transfer
said Note on the books kept for registration thereof, with full power of
substitution in the premises.
Dated: */
Signature Guaranteed:
*/
-----------------
*/ NOTICE: The signature to this assignment must correspond with the name
of the registered owner as it appears on the face of the within Note in
every particular, without alteration, enlargement or any change
whatsoever. Such signature must be guaranteed by an "eligible guarantor
institution" meeting the requirements of the Note Registrar, which
requirements include membership or participation in STAMP or such other
"signature guarantee program" as may be determined by the Note
Registrar in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.
9
EXHIBIT B
FORM OF NOTE DEPOSITORY AGREEMENT
EXHIBIT C
SERVICING CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
BY INDENTURE TRUSTEE
The assessment of compliance to be delivered by the Indenture
Trustee, shall address, at a minimum, the criteria identified as below:
Reference Criteria
Cash Collection and Administration
1122(d)(2)(ii) Disbursements made via wire transfer on behalf of an
obligor or to an investor are made only by authorized
personnel.
Investor Remittances and Reporting
1122(d)(3)(ii) Amounts due to investors are allocated and remitted
in accordance with timeframes, distribution priority
and other terms set forth in the transaction
agreements.*
1122(d)(3)(iii) Disbursements made to an investor are posted within
two business days to the Servicer's investor records,
or such other number of days specified in the
transaction agreements.
1122(d)(3)(iv) Amounts remitted to investors per the investor
reports agree with cancelled checks, or other form of
payment, or custodial bank statements.
* Solely with respect to remittances.
TRUST INDENTURE ACT CROSS-REFERENCE CHART
(this chart is not a part of this Indenture)
TIA Section Indenture Reference
310(a)(1)............................................................6.08, 6.11
310(a)(2)..................................................................6.11
310(a)(3)...............................................................6.10(b)
310(a)(4)........................................................Not Applicable
310(a)(5)..................................................................6.11
310(b).....................................................................6.11
310(c)...........................................................Not Applicable
311(a)...............................................................6.13, 6.14
311(b)...........................................................Not Applicable
311(c)...........................................................Not Applicable
312(a)............................................................7.01, 7.02(a)
312(b)..................................................................7.02(b)
312(c)..................................................................7.02(c)
313(a)...............................................................7.03, 7.04
313(b)...............................................................7.03, 7.04
313(c)...............................................................7.03, 7.04
313(d)...............................................................7.03, 7.04
314(a)..................................................................7.03(a)
314(b)..................................................................3.06(b)
314(c)(1)..............................................................11.01(a)
314(c)(2)..............................................................11.01(a)
314(c)(3)..............................................................11.01(a)
314(d)...........................................................8.04, 11.01(a)
314(e).................................................................11.01(a)
315(a)..................................................................6.01(b)
315(b).....................................................................6.05
315(c)..................................................................6.01(a)
315(d)..................................................................6.01(c)
315(d)(1)...................................................6.01(b), 6.01(c)(i)
315(d)(2)...........................................................6.01(c)(ii)
315(d)(3)..........................................................6.01(c)(iii)
315(e).....................................................................5.13
316(a)(1)(A)...............................................................5.11
316(a)(1)(B)...............................................................5.12
316(a)(2)........................................................Not Applicable
316(b)...............................................................5.06, 5.07
316(c)..................................................................5.04(b)
317(a)(1)......................................................5.03(a), 5.03(b)
317(a)(2)...............................................................5.03(d)
317(b).....................................................................3.03
318(a)....................................................................11.18