EXHIBIT 10.3
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OWNER TRUST ADMINISTRATION AGREEMENT
among
BMW VEHICLE OWNER TRUST 2006-A,
as Issuer,
BMW FINANCIAL SERVICES NA, LLC,
as Owner Trust Administrator,
and
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Indenture Trustee
Dated as of September 1, 2006
TABLE OF CONTENTS
PAGE
Section 1.1 Duties of the Owner Trust Administrator with Respect to the
Depository Agreement and the Indenture...........................2
Section 1.2 Additional Duties................................................6
Section 1.3 Non-Ministerial Matters..........................................7
Section 2. Records..........................................................7
Section 3. Compensation.....................................................8
Section 4. Additional Information To Be Furnished to the Issuer.............8
Section 5. Independence of the Owner Trust Administrator....................8
Section 6. No Joint Venture.................................................8
Section 7. Other Activities of Owner Trust Administrator....................8
Section 8. Term of Agreement; Resignation and Removal of Owner Trust
Administrator....................................................8
Section 9. Action upon Termination, Resignation or Removal.................10
Section 10. Notices.........................................................10
Section 11. Amendments......................................................11
Section 12. Successors and Assigns..........................................12
Section 13. Governing Law...................................................12
Section 14. Headings........................................................12
Section 15. Counterparts....................................................12
Section 16. Severability....................................................12
Section 17. Not Applicable to Deutsche Bank Trust Company Americas in
Other Capacities................................................13
Section 18. Limitation of Liability of Owner Trustee and Indenture
Trustee.........................................................13
Section 19. Third-Party Beneficiary.........................................13
Section 20. Nonpetition Covenants...........................................13
Section 21. Liability of Owner Trust Administrator..........................14
Section 22. Additional Requirements of the Owner Trust Administrator........14
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EXHIBITS
Exhibit A - Power of Attorney
Exhibit B - Form of Annual Certification
Exhibit C - Servicing Criteria to be Addressed in Assessment of Compliance
THIS OWNER TRUST ADMINISTRATION AGREEMENT, dated as of September 1,
2006 is among BMW VEHICLE OWNER TRUST 2006-A, a Delaware statutory trust (the
"Issuer"), BMW FINANCIAL SERVICES NA, LLC, a Delaware, limited liability
company, as administrator (the "Owner Trust Administrator"), and DEUTSCHE BANK
TRUST COMPANY AMERICAS, a New York banking corporation, not in its individual
capacity but solely as Indenture Trustee (the "Indenture Trustee"),
W I T N E S S E T H :
WHEREAS, the Issuer was formed pursuant to a Trust Agreement dated
as of August 14, 2006 as amended and restated as of September 1, 2006 (as the
same may be further amended and supplemented from time to time, the "Trust
Agreement"), between BMW FS SECURITIES LLC, as depositor (the "Depositor"), and
WILMINGTON TRUST COMPANY, not in its individual capacity but solely as owner
trustee (the "Owner Trustee"), and is issuing 5.36344% Asset Backed Notes, Class
A-1, 5.30% Asset Backed Notes, Class A-2, 5.13% Asset Backed Notes, Class A-3
and 5.07% Asset Backed Notes, Class A-4 (collectively, the "Class A Notes") and
5.19% Asset Backed Notes, Class B (the "Class B Notes" and, collectively with
the Class A Notes, the "Notes") pursuant to the Indenture dated as of September
1, 2006 (as amended and supplemented from time to time, the "Indenture"),
between the Issuer and the Indenture Trustee, and is issuing asset backed
certificates (the "Trust Certificates" and, collectively with the Notes, the
"Securities") pursuant to the Trust Agreement (capitalized terms used and not
otherwise defined herein shall have the meanings assigned to such terms in the
Indenture, the Trust Agreement or the Sale and Servicing Agreement (as defined
herein), as applicable);
WHEREAS, the Issuer has entered into certain agreements in
connection with the issuance of the Securities and of certain beneficial
ownership interests in the Issuer, including (i) a Sale and Servicing Agreement
dated as of September 1, 2006 (as amended and supplemented from time to time,
the "Sale and Servicing Agreement"), among BMW FINANCIAL SERVICES NA, LLC, as
seller (in such capacity, the "Seller"), servicer (in such capacity, the
"Servicer"), administrator and custodian, the Depositor, the Issuer and the
Indenture Trustee, (ii) a Letter of Representations dated September 22, 2006 (as
amended and supplemented from time to time, the "Depository Agreement"), among
the Issuer, the Indenture Trustee, the Owner Trust Administrator and THE
DEPOSITORY TRUST COMPANY ("DTC") relating to the Notes, (iii) the Indenture and
(iv) the Trust Agreement (the Sale and Servicing Agreement, the Depository
Agreement, the Indenture and the Trust Agreement being referred to hereinafter
collectively as the "Related Agreements");
WHEREAS, pursuant to the Related Agreements, the Issuer and Owner
Trustee are required to perform certain duties in connection with (a) the Notes
and the collateral therefor pledged pursuant to the Indenture (the "Collateral")
and (b) the beneficial ownership interests in the Issuer (the registered holders
of such interests being referred to herein as the "Owners");
WHEREAS, the Issuer and the Owner Trustee desire to have the Owner
Trust Administrator perform certain of the duties of the Issuer and the Owner
Trustee referred to in the preceding clause and to provide such additional
services consistent with the terms of this Agreement and the Related Agreements
as the Issuer and the Owner Trustee may from time to time request; and
WHEREAS, the Owner Trust Administrator has the capacity to provide
the services required hereby and is willing to perform such services for the
Issuer and the Owner Trustee on the terms set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, and other good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the parties agree as follows:
Section 1.1 Duties of the Owner Trust Administrator with Respect to
the Depository Agreement and the Indenture.
The Owner Trust Administrator agrees to perform all its duties as
Owner Trust Administrator and all the duties of the Issuer and the Owner Trustee
under the Depository Agreement. In addition, the Owner Trust Administrator shall
consult with the Owner Trustee regarding the duties of the Issuer or the Owner
Trustee under the Indenture and the Depository Agreement. The Owner Trust
Administrator shall monitor the performance of the Issuer and shall advise the
Owner Trustee when action is necessary to comply with the Issuer's or the Owner
Trustee's duties under the Indenture and the Depository Agreement. The Owner
Trust Administrator shall prepare for execution by the Issuer, or shall cause
the preparation by other appropriate persons of, all such documents, reports,
filings, instruments, certificates and opinions that it shall be the duty of the
Issuer or the Owner Trustee to prepare, file or deliver pursuant to the
Indenture and the Depository Agreement. In furtherance of the foregoing, the
Owner Trust Administrator shall take all appropriate action that is the duty of
the Issuer or the Owner Trustee to take pursuant to the Indenture including,
without limitation, such of the foregoing as are required with respect to the
following matters under the Indenture (parenthetical section references are to
sections of the Indenture):
(A) the preparation of or obtaining of the documents and
instruments required for authentication of the Notes and
delivery of the same to the Indenture Trustee (Section 2.02);
(B) the causing of the Note Register to be kept and to give the
Indenture Trustee notice of any appointment of a new Note
Registrar and the location, or change in location, of the Note
Register (Section 2.04);
(C) the notification of Noteholders of the final principal payment
on their Notes (Section 2.08(b));
(D) the preparation of Definitive Notes in accordance with the
instructions of the Clearing Agency (Section 2.12);
(E) reserved;
(F) the maintenance of an office in the Borough of Manhattan, City
of New York, for registration of transfer or exchange of Notes
(Section 3.02);
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(G) the causing of newly appointed Paying Agents, if any, to
deliver to the Indenture Trustee the instrument specified in
the Indenture regarding funds held in trust (Section 3.03);
(H) the direction to the Indenture Trustee to deposit moneys with
Paying Agents, if any, other than the Indenture Trustee
(Section 3.03);
(I) the direction to Paying Agents to pay to the Indenture Trustee
all sums held in trust by such Paying Agents (Section 3.03);
and
(J) the obtaining and preservation of the Issuer's qualification
to do business in each jurisdiction in which such
qualification is or shall be necessary to protect the validity
and enforceability of the Indenture, the Notes, the Collateral
and each other instrument and agreement included in the Trust
Estate (Section 3.04);
(K) the preparation of all supplements and amendments to the
Indenture and all financing statements, continuation
statements, instruments of further assurance and other
instruments and the taking of such other action as is
necessary or advisable to protect the Trust Estate (Section
3.05);
(L) the delivery of the Opinion of Counsel on the Closing Date and
the annual delivery of Opinions of Counsel as to the Trust
Estate, and the annual delivery of the Officer's Certificate
and certain other statements as to compliance with the
Indenture (Sections 3.06 and 3.09);
(M) the identification to the Indenture Trustee in an Officer's
Certificate of a Person with whom the Issuer has contracted to
perform its duties under the Indenture (Section 3.07(b));
(N) the delivery of written notice to the Indenture Trustee and
the Rating Agencies of a Servicer Termination Event under
the Sale and Servicing Agreement and, if such Servicer
Termination Event arises from the failure of the Servicer
to perform any of its duties under the Sale and Servicing
Agreement with respect to the Receivables, the taking of
all reasonable steps available to remedy such failure
(Section 3.07(d));
(O) the notifying of the Indenture Trustee of the appointment of a
Successor Servicer (Section 3.07(f));
(P) the preparation and obtaining of documents and instruments
required for the release of the Issuer from its obligations
under the Indenture (Section 3.10(b));
(Q) the causing of the Servicer to comply with the Sale and
Servicing Agreement, including Sections 4.09, 4.10, and 4.11
and Article VII thereof (Section 3.14);
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(R) the delivery of written notice to the Indenture Trustee and
the Rating Agencies of each Event of Default under the
Indenture and each default by the Servicer or the Seller under
the Sale and Servicing Agreement (Section 3.19);
(S) the monitoring of the Issuer's obligations as to the
satisfaction and discharge of the Indenture and the
preparation of an Officer's Certificate and the obtaining of
the Opinion of Counsel and the Independent Certificate
relating thereto (Section 4.01);
(T) the preparation, obtaining or filing of the instruments,
opinions and certificates and other documents required for the
release of collateral (Section 4.04);
(U) the compliance with any written directive of the Indenture
Trustee with respect to the sale of the Trust Estate in a
commercially reasonable manner if an Event of Default shall
have occurred and be continuing (Section 5.04);
(V) the providing of the Indenture Trustee with the information
necessary to deliver to each Noteholder such information as
may be reasonably required to enable such Holder to prepare
its United States federal and state and local income or
franchise tax returns (Section 6.06).
(W) the preparation and delivery of notice to Noteholders of the
removal of the Indenture Trustee and the appointment of a
successor Indenture Trustee (Section 6.08);
(X) the preparation of any written instruments required to confirm
more fully the authority of any co-trustee or separate trustee
and any written instruments necessary in connection with the
resignation or removal of any co-trustee or separate trustee
(Sections 6.08 and 6.10);
(Y) the maintenance of the effectiveness of the sales finance
company licenses required under the Maryland Code and the
licenses required under the Pennsylvania Motor Vehicle Sales
Finance Act and all required, if any, promissory note licenses
in all applicable jurisdictions (Section 6.15);
(Z) the furnishing to the Indenture Trustee with the names and
addresses of Noteholders during any period when the Indenture
Trustee is not the Note Registrar (Section 7.01);
(AA) the providing of reasonable and appropriate assistance to the
Depositor or its designees (including Deutsche Bank Trust
Company Americas), as applicable, with the preparation and
filing with the Commission, any applicable state agencies and
the Indenture Trustee of documents required to be filed on a
periodic basis with, and summaries thereof as may be required
by rules and regulations prescribed by, the Commission and any
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applicable state agencies and the transmission of such
summaries, as necessary, to the Noteholders (Section 7.03);
(BB) the opening of one or more accounts in the Issuer's name, the
preparation and delivery of Issuer Orders, Officer's
Certificates and Opinions of Counsel and all other actions
necessary with respect to investment and reinvestment of funds
in the Trust Accounts (Sections 8.02 and 8.03);
(CC) the preparation of an Issuer Request and Officer's Certificate
and the obtaining of an Opinion of Counsel and Independent
Certificates, if necessary, for the release of the Trust
Estate (Sections 8.04 and 8.05);
(DD) the preparation of Issuer Orders and the obtaining of Opinions
of Counsel with respect to the execution of supplemental
indentures and the mailing to the Noteholders of notices with
respect to such supplemental indentures (Sections 9.01, 9.02
and 9.03);
(EE) the execution and delivery of new Notes conforming to any
supplemental indenture (Section 9.05);
(FF) the notifying of Noteholders of redemption of the Notes or to
cause the Indenture Trustee to provide such notification
(Section 10.02);
(GG) the preparation and delivery of all Officer's Certificates,
Opinions of Counsel and Independent Certificates with respect
to any requests by the Issuer to the Indenture Trustee to take
any action under the
Indenture (Section 11.01(a));
(HH) the preparation and delivery of Officer's Certificates and the
obtaining of Independent Certificates, if necessary, for the
release of property from the lien of the Indenture (Section
11.01(b));
(II) the notification of the Rating Agencies, upon the failure of
the Indenture Trustee to give such notification, of the
information required pursuant to Section 11.04 of the
Indenture (Section 11.04);
(JJ) the preparation and delivery to Noteholders and the Indenture
Trustee of any agreements with respect to alternate payment
and notice provisions (Section 11.06);
(KK) the recording of the Indenture, if applicable (Section 11.14);
The Owner Trust Administrator will:
(A) pay the Indenture Trustee (and any separate trustee or
co-trustee appointed pursuant to Section 6.10 of the Indenture
(a "Separate Trustee")) from time to time reasonable
compensation for all services rendered by the Indenture
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Trustee or Separate Trustee, as the case may be, under the
Indenture;
(B) except as otherwise expressly provided in the Indenture,
reimburse the Indenture Trustee or any Separate Trustee
upon its request for all reasonable expenses,
disbursements and advances incurred or made by the
Indenture Trustee or Separate Trustee, as the case may be,
in accordance with any provision of the Indenture
(including the reasonable compensation, expenses and
disbursements of its agents and counsel), except any such
expense, disbursement or advance as may be attributable to
its negligence or bad faith;
(C) indemnify the Indenture Trustee and any Separate Trustee
and their respective agents for, and hold them harmless
against, any losses, liability or expense (including but
in no way limited to reasonable attorney fees and
expenses) incurred without negligence or bad faith on
their part, arising out of or in connection with the
acceptance or administration of the transactions
contemplated by the Indenture and the other Basic
Documents, including the reasonable costs and expenses of
defending themselves against any claim or liability in
connection with the exercise or performance of any of
their powers or duties under the Indenture; and
(D) indemnify the Owner Trustee and its agents, successors,
assigns and servants in accordance with Section 8.02 of the
Trust Agreement to the extent that amounts thereunder have not
been paid pursuant to Section 5.06 of the Sale and Servicing
Agreement.
Section 1.2 Additional Duties.
(i) In addition to the duties of the Owner Trust Administrator set
forth above, the Owner Trust Administrator shall perform such calculations and
shall prepare or shall cause the preparation by other appropriate persons of,
and shall execute on behalf of the Issuer or the Owner Trustee, all such
documents, reports, filings, instruments, certificates and opinions that it
shall be the duty of the Issuer or the Owner Trustee to prepare, file or deliver
pursuant to the Related Agreements or Section 5.04 of the Trust Agreement, and
at the request of the Owner Trustee shall take all appropriate action that it is
the duty of the Issuer or the Owner Trustee to take pursuant to the Related
Agreements. In furtherance thereof, the Owner Trustee shall, on behalf of itself
and of the Issuer, execute and deliver to the Owner Trust Administrator and to
each successor Owner Trust Administrator appointed pursuant to the terms hereof,
one or more powers of attorney substantially in the form of Exhibit A hereto,
appointing the Owner Trust Administrator the attorney-in-fact of the Owner
Trustee and the Issuer for the purpose of executing on behalf of the Owner
Trustee and the Issuer all such documents, reports, filings, instruments,
certificates and opinions. Subject to Section 5 of this Agreement, and in
accordance with the directions of the Owner Trustee, the Owner Trust
Administrator shall administer, perform or supervise the performance of such
other activities in connection with the Collateral (including the Related
Agreements) as are not covered by any of the foregoing provisions and as are
expressly requested by the Owner Trustee and are reasonably within the
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capability of the Owner Trust Administrator. Such responsibilities shall include
providing to the Depositor and the Indenture Trustee (i) the monthly servicing
report in an appropriate electronic form and (ii) Pennsylvania and Maryland
renewal notices or forms received by the Owner Trust Administrator and shall
exclude the actual filing of any reports pursuant to the Securities Exchange Act
of 1934.
(ii) Notwithstanding anything in this Agreement or the Related
Agreements to the contrary, the Owner Trust Administrator shall be responsible
for performance of the duties of the Owner Trustee set forth in Sections 5.04
and 5.05(a) of the Trust Agreement with respect to, among other things,
accounting and reports to Owners; provided, however, that the Owner Trustee
shall retain responsibility for the distribution of the Schedule K-1s (as
prepared by the Owner Trust Administrator) necessary to enable each Owner to
prepare its federal and state income tax returns.
(iii) The Owner Trust Administrator shall satisfy its obligations
with respect to Section 5.04 of the Trust Agreement under clause (ii) above by
retaining, at the expense of the Trust payable by the Owner Trust Administrator,
a firm of independent public accountants acceptable to the Owner Trustee, which
shall perform the obligations of the Owner Trust Administrator thereunder.
(iv) The Owner Trust Administrator shall perform the duties of the
Owner Trust Administrator including, without limitation, those specified in
Sections 8.01, 8.02 and 10.02 of the Trust Agreement required to be performed in
connection with the fees, expenses and indemnification and the resignation or
removal of the Owner Trustee, and any other duties expressly required to be
performed by the Owner Trust Administrator under the Trust Agreement.
(v) In carrying out the foregoing duties or any of its other
obligations under this Agreement, the Owner Trust Administrator may enter into
transactions or otherwise deal with any of its affiliates; provided, however,
that the terms of any such transactions or dealings shall be in accordance with
any directions received from the Issuer and shall be, in the Owner Trust
Administrator's opinion, no less favorable to the Issuer than would be available
from unaffiliated parties.
Section 1.3 Non-Ministerial Matters.
With respect to matters that in the reasonable judgment of the Owner
Trust Administrator are non-ministerial, the Owner Trust Administrator shall not
take any action unless within a reasonable time before the taking of such
action, the Owner Trust Administrator shall have notified the Owner Trustee of
the proposed action and the Owner Trustee shall not have withheld consent or
provided an alternative direction. Unless explicitly provided under this Owner
Trust Administration Agreement, for the purpose of the preceding sentence,
"non-ministerial matters" shall include, without limitation:
(A) the amendment of or any supplement to the Indenture;
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(B) the initiation of any claim or lawsuit by the Issuer and the
compromise of any action, claim or lawsuit brought by or
against the Issuer (other than in connection with the
collection of the Receivables);
(C) the amendment, change or modification of the Related
Agreements;
(D) the appointment of successor Note Registrars, successor Paying
Agents and successor Indenture Trustees pursuant to the
Indenture or the appointment of successor Owner Trust
Administrators or successor Servicers, or the consent to the
assignment by the Note Registrar, Paying Agent or Indenture
Trustee of its obligations under the Indenture; and
(E) the removal of the Indenture Trustee.
Notwithstanding anything to the contrary in this Agreement, the
Owner Trust Administrator shall not be obligated to, and shall not, (x) make any
payments to the Noteholders under the Related Agreements, (y) sell the Trust
Estate pursuant to Section 5.04 of the Indenture or (z) take any other action
that the Issuer directs the Owner Trust Administrator not to take on its behalf.
Section 2 Records. The Owner Trust Administrator shall maintain
appropriate books of account and records relating to services performed
hereunder, which books of account and records shall be accessible for inspection
by the Issuer at any time during normal business hours.
Section 3 Compensation. As compensation for the performance of the
Owner Trust Administrator's obligations under this Agreement and as
reimbursement for its expenses related thereto, the Owner Trust Administrator
shall be paid a fee by the Servicer, such fee not to exceed $1,500.
Section 4 Additional Information To Be Furnished to the Issuer.
The Owner Trust Administrator shall furnish to the Issuer from time to time such
additional information regarding the Collateral as the Issuer shall reasonably
request.
Section 5 Independence of the Owner Trust Administrator. For all
purposes of this Agreement, the Owner Trust Administrator shall be an
independent contractor and shall not be subject to the supervision of the Issuer
or the Owner Trustee with respect to the manner in which it accomplishes the
performance of its obligations hereunder. Unless expressly authorized by the
Issuer, the Owner Trust Administrator shall have no authority to act for or
represent the Issuer or the Owner Trustee in any way and shall not otherwise be
deemed an agent of the Issuer or the Owner Trustee.
Section 6 No Joint Venture. Nothing contained in this Agreement
(i) shall constitute the Owner Trust Administrator and either of the Issuer or
the Owner Trustee as members of any partnership, joint venture, association,
syndicate, unincorporated business or other separate entity, (ii) shall be
construed to impose any liability as such on any of them or (iii) shall be
deemed to confer on any of them any express, implied or apparent authority to
incur any obligation or liability on behalf of the others.
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Section 7 Other Activities of Owner Trust Administrator.
Nothing herein shall prevent the Owner Trust Administrator or its
Affiliates from engaging in other businesses or, in its sole discretion, from
acting in a similar capacity as an administrator for any other person or entity
even though such person or entity may engage in business activities similar to
those of the Issuer, the Owner Trustee or the Indenture Trustee.
The Owner Trust Administrator and its affiliates may generally
engage in any kind of business with any person party to a Related Agreement, any
of its Affiliates and any person who may do business with or own securities of
any such person or any of its Affiliates, without any duty to account therefor
to the Issuer, the Owner Trustee or the Indenture Trustee.
Section 8 Term of Agreement; Resignation and Removal of Owner
Trust Administrator.
(a) This Agreement shall continue in force until the dissolution
of the Issuer, upon which event this Agreement shall automatically terminate.
(b) Subject to Sections 8(e) and (f), the Owner Trust
Administrator may resign its duties hereunder by providing the Issuer with at
least 60 days prior written notice.
(c) Subject to Sections 8(e) and (f), the Issuer may remove the
Owner Trust Administrator without cause by providing the Owner Trust
Administrator with at least 60 days' prior written notice.
(d) Subject to Sections 8(e) and (f), at the sole option of the
Issuer, the Owner Trust Administrator may be removed immediately upon written
notice of termination from the Issuer to the Owner Trust Administrator if any of
the following events shall occur:
(i) the Owner Trust Administrator shall default in the
performance of any of its duties under this Agreement and, after
notice of such default, shall not cure such default within ten
Business Days (or, if such default cannot be cured in such time,
shall not give within ten days such assurance of cure as shall be
reasonably satisfactory to the Issuer);
(ii) a court having jurisdiction in the premises shall enter a
decree or order for relief, and such decree or order shall not have
been vacated within 60 days, in respect of the Owner Trust
Administrator in any involuntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in
effect or appoint a receiver, liquidator, assignee, custodian,
trustee, sequestrator or similar official for the Owner Trust
Administrator or any substantial part of its property or order the
winding-up or liquidation of its affairs;
(iii) the Owner Trust Administrator shall commence a voluntary
case under any applicable bankruptcy, insolvency or other similar
law now or hereafter in effect, shall consent to the entry of an
order for relief in an involuntary case under any such law, shall
consent to the appointment of a receiver, liquidator, assignee,
trustee, custodian, sequestrator or similar official for the Owner
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Trust Administrator or any substantial part of its property, shall
consent to the taking of possession by any such official of any
substantial part of its property, shall make any general assignment
for the benefit of creditors or shall fail generally to pay its
debts as they become due; or
(iv) any failure by the Owner Trust Administrator to deliver
any information, report, certification, attestation or accountants'
letter when and as required under Section 22 which continues
unremedied for fifteen (15) calendar days after the date on which
such information, report, certification, attestation or accountants'
letter was required to be delivered.
The Owner Trust Administrator agrees that if any of the events
specified in clauses (ii) or (iii) of this Section shall occur, it shall give
written notice thereof to the Issuer and the Indenture Trustee within seven days
after the happening of such event.
(e) No resignation or removal of the Owner Trust Administrator
pursuant to this Section shall be effective until (i) a successor Owner Trust
Administrator shall have been appointed by the Issuer and (ii) such successor
Owner Trust Administrator shall have agreed in writing to be bound by the terms
of this Agreement in the same manner as the Owner Trust Administrator is bound
hereunder and (iii) the Owner Trustee and the Indenture Trustee consent to the
successor Owner Trust Administrator.
(f) The appointment of any successor Owner Trust Administrator
shall be effective only after receipt of written confirmation from each Rating
Agency that the proposed appointment will not result in the qualification,
downgrading or withdrawal of any rating assigned to the Notes by such Rating
Agency.
(g) A successor Owner Trust Administrator shall execute,
acknowledge and deliver a written acceptance of its appointment hereunder to the
resigning Owner Trust Administrator and to the Issuer. Thereupon the resignation
or removal of the resigning Owner Trust Administrator shall become effective,
and the successor Owner Trust Administrator shall have all the rights, powers
and duties of the Owner Trust Administrator under this Agreement. The successor
Owner Trust Administrator shall mail a notice of its succession to the
Noteholders and the Certificateholders. The resigning Owner Trust Administrator
shall promptly transfer or cause to be transferred all property and any related
agreements, documents and statements held by it as Owner Trust Administrator to
the successor Owner Trust Administrator and the resigning Owner Trust
Administrator shall execute and deliver such instruments and do other things as
may reasonably be required for fully and certainly vesting in the successor
Owner Trust Administrator all rights, power, duties and obligations hereunder.
(h) In no event shall a resigning Owner Trust Administrator be
liable for the acts or omissions of any successor Owner Trust Administrator
hereunder.
(i) In the exercise or administration of its duties hereunder and
under the Related Documents, the Owner Trust Administrator may act directly or
through its agents or attorneys pursuant to agreements entered into with any of
them, and the Owner Trust Administrator shall not be liable for the conduct or
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misconduct of such agents or attorneys if such agents or attorneys shall have
been selected by the Owner Trust Administrator with due care.
Section 9. Action upon Termination, Resignation or Removal.
Promptly upon the effective date of termination of this Agreement pursuant to
Section 8(a) or the resignation or removal of the Owner Trust Administrator
pursuant to Section 8(b), (c) or (d), respectively, the Owner Trust
Administrator shall be entitled to be paid all fees and reimbursable expenses
accruing to it to the date of such termination, resignation or removal. The
Owner Trust Administrator shall forthwith upon such termination pursuant to
Section 8(a) deliver to the Issuer all property and documents of or relating to
the Collateral then in the custody of the Owner Trust Administrator. In the
event of the resignation or removal of the Owner Trust Administrator pursuant to
Section 8(b), (c) or (d), respectively, the Owner Trust Administrator shall
cooperate with the Issuer and take all reasonable steps requested to assist the
Issuer in making an orderly transfer of the duties of the Owner Trust
Administrator.
Section 10. Notices. Any notice, report or other communication given
hereunder shall be in writing and addressed as follows:
(i) if to the Issuer or the Owner Trustee, to:
BMW Vehicle Owner Trust 2006-A
In care of Wilmington Trust Company
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Attention: Corporate Trust Administration
(ii) if to the Owner Trust Administrator, to:
BMW Financial Services NA, LLC
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Attention: Vice President of Finance and Risk
with a copy to:
BMW Financial Services NA, LLC
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Attention: ▇▇▇▇▇▇▇ ▇▇▇▇
(iii) if to the Indenture Trustee, to:
Deutsche Bank Trust Company Americas
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Structured Finance Services-BMW 2006-A
11
or to such other address as any party shall have provided to the
other parties in writing. Any notice required to be in writing hereunder shall
be deemed given if such notice is mailed by certified mail, postage prepaid, or
hand-delivered to the address of such party as provided above.
Section 11. Amendments. This Agreement may be amended from time to
time by a written amendment duly executed and delivered by the Issuer, the Owner
Trust Administrator and the Indenture Trustee, with the written consent of the
Owner Trustee, without the consent of the Noteholders and the
Certificateholders, for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Agreement or of
modifying in any manner the rights of the Noteholders or Certificateholders;
provided that such amendment would not materially and adversely affect the
interest of any Noteholder or Certificateholder. This Agreement may also be
amended by the Issuer, the Owner Trust Administrator and the Indenture Trustee
with the written consent of the Owner Trustee and the holders of Notes
evidencing at least a majority of the Outstanding Amount of the Controlling
Class and the holders of Trust Certificates evidencing at least a majority of
the Certificate Percentage Interests for the purpose of adding any provisions to
or changing in any manner or eliminating any of the provisions of this Agreement
or of modifying in any manner the rights of Noteholders or the
Certificateholders; provided, however, that no such amendment may (i) increase
or reduce in any manner the amount of, or accelerate or delay the timing of,
collections of payments on Receivables or distributions that are required to be
made for the benefit of the Noteholders or Certificateholders or (ii) reduce the
aforesaid percentage of the holders of Notes and Trust Certificates which are
required to consent to any such amendment, without the consent of the holders of
all the outstanding Notes and Trust Certificates. Notwithstanding the foregoing,
the Owner Trust Administrator may not amend this Agreement without the
permission of the Seller, which permission shall not be unreasonably withheld.
Section 12. Successors and Assigns. This Agreement may not be
assigned by the Owner Trust Administrator unless such assignment is previously
consented to in writing by the Issuer and the Owner Trustee and subject to the
satisfaction of the Rating Agency Condition in respect thereof. An assignment
with such consent and satisfaction, if accepted by the assignee, shall bind the
assignee hereunder in the same manner as the Owner Trust Administrator is bound
hereunder. Notwithstanding the foregoing, this Agreement may be assigned by the
Owner Trust Administrator without the consent of the Issuer or the Owner Trustee
to a corporation or other organization that is a successor (by merger,
consolidation or purchase of assets) to the Owner Trust Administrator; provided
that such successor organization executes and delivers to the Issuer, the Owner
Trustee and the Indenture Trustee an agreement in which such corporation or
other organization agrees to be bound hereunder by the terms of said assignment
in the same manner as the Owner Trust Administrator is bound hereunder and
represents that it has the financial ability to satisfy its indemnification
obligations hereunder. Notwithstanding the foregoing, the Owner Trust
Administrator can transfer its obligations to any affiliate that succeeds to
substantially all of the assets and liabilities of the Owner Trust Administrator
and who has represented and warranted that it is not less creditworthy of the
Owner Trust Administrator. Subject to the foregoing, this Agreement shall bind
any successors or assigns of the parties hereto.
12
Section 13. Governing Law. THIS AGREEMENT 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 14. Headings. The section headings hereof have been inserted
for convenience of reference only and shall not be construed to affect the
meaning, construction or effect of this Agreement.
Section 15. Counterparts. This Agreement may be executed in
counterparts, each of which when so executed shall be an original, but all of
which together shall constitute but one and the same agreement.
Section 16. Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall be ineffective to the
extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
Section 17. Not Applicable to Deutsche Bank Trust Company Americas
in Other Capacities. Nothing in this Agreement shall affect any obligation
Deutsche Bank Trust Company Americas may have in any other capacity.
Section 18. Limitation of Liability of Owner Trustee and Indenture
Trustee.
(a) Notwithstanding anything contained herein to the contrary,
this instrument has been countersigned by the Owner Trustee solely in its
capacity as Owner Trustee and in no event shall the Owner Trustee in its
individual capacity or any beneficial owner of the Issuer have any liability for
the representations, warranties, covenants, agreements or other obligations of
the Issuer hereunder, as to all of which recourse shall be had solely to the
assets of the Issuer. For all purposes of this Agreement, in the performance of
any duties or obligations of the Issuer hereunder, the Owner Trustee shall be
subject to, and entitled to the benefits of, the terms and provisions of
Articles VI, VII and VIII of the Trust Agreement.
(b) Notwithstanding anything contained herein to the contrary,
this Agreement has been countersigned by the Indenture Trustee solely as
Indenture Trustee and in no event shall the Indenture Trustee have any liability
for the representations, warranties, covenants, agreements or other obligations
of the Issuer hereunder or in any of the certificates, notices or agreements
delivered pursuant hereto, as to all of which recourse shall be had solely to
the assets of the Issuer.
(c) No recourse under any obligation, covenant or agreement of the
Issuer contained in this Agreement shall be had against any agent of the Issuer
(including the Owner Trust Administrator and the Owner Trustee) as such by the
enforcement of any assessment or by any legal or equitable proceeding, by virtue
of any statute or otherwise; it being expressly agreed and understood that this
Agreement is solely an obligation of the Issuer as a Delaware statutory trust,
13
and that no personal liability whatever shall attach to or be incurred by any
agent of the Issuer (including the Owner Trust Administrator and the Owner
Trustee), as such, under or by reason of any of the obligations, covenants or
agreements of the Issuer contained in this Agreement, or implied therefrom, and
that any and all personal liability for breaches by the Issuer of any such
obligations, covenants or agreements, either at common law or at equity, or by
statute or constitution, of every such agent is hereby expressly waived as a
condition of and in consideration for the execution of this Agreement.
Section 19. Third-Party Beneficiary. The Seller, the Depositor and
the Owner Trustee are third-party beneficiaries to this Agreement and are
entitled to the rights and benefits hereunder and may enforce the provisions
hereof as if each were a party hereto.
Section 20. Nonpetition Covenants. Notwithstanding any prior
termination of this Agreement, the Owner Trust Administrator and the Indenture
Trustee shall not, prior to the date which is one year and one day after the
termination of this Agreement with respect to the Issuer, acquiesce, petition or
otherwise invoke or cause the Issuer to invoke the process of any court of
government authority for the purpose of commencing or sustaining a case against
the Issuer under any Federal or state bankruptcy, insolvency or similar law or
appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator or
other similar official of the Issuer or any substantial part of its property, or
ordering the winding up or liquidation of the affairs of the Issuer.
Section 21. Liability of Owner Trust Administrator.
Notwithstanding any provision of this Agreement, the Owner Trust
Administrator shall not have any obligations under this Agreement other than
those specifically set forth herein, and no implied obligations of the Owner
Trust Administrator shall be read into this Agreement. Neither the Owner Trust
Administrator nor any of its directors, officers, agents or employees shall be
liable for any action taken or omitted to be taken in good faith by it or them
under or in connection with this Agreement, except for its or their own gross
negligence or willful misconduct and in no event shall the Owner Trust
Administrator be liable under or in connection with this Agreement for indirect,
special or consequential losses or damages of any kind, including lost profits,
even if advised of the possibility thereof and regardless of the form of action
by which such losses or damages may be claimed. Without limiting the foregoing,
the Owner Trust Administrator may (a) consult with legal counsel (including
counsel for the Issuer), independent public accountants and other experts
selected by it and shall not be liable for any action taken or omitted to be
taken in good faith by it in accordance with the advice of such counsel,
accountants or experts and (b) shall incur no liability under or in respect if
this Agreement by acting upon any notice (including notice by telephone),
consent, certificate or other instrument or writing (which may be by facsimile)
believed by it to be genuine and signed or sent by the proper party or parties.
Section 22. Additional Requirements of the Owner Trust
Administrator.
(a) Reporting Requirements.
14
(i) If so requested by the Issuer for the purpose of satisfying its
reporting obligation under the Exchange Act with respect to any class of
asset-backed securities, the Owner Trust Administrator shall (i) notify
the Issuer in writing of any material litigation or governmental
proceedings pending against the Owner Trust Administrator and (ii) provide
to the Issuer a description of such proceedings.
(ii) As a condition to the succession to the Owner Trust
Administrator by any Person as permitted by Section 8 hereof the Owner
Trust Administrator shall provide to the Issuer, at least 10 Business Days
prior to the effective date of such succession or appointment, (x) written
notice to the Issuer, of such succession or appointment and (y) in writing
all information in order to comply with its reporting obligation under
Item 6.02 of Form 8-K with respect to any class of asset-backed
securities.
(iii) In addition to such information as the Owner Trust
Administrator, as administrator, is obligated to provide pursuant to other
provisions of this Agreement, if so requested by the Issuer, the Owner
Trust Administrator shall provide such information regarding the
performance or servicing of the Receivables as is reasonably required to
facilitate preparation of distribution reports in accordance with Item
1121 of Regulation AB.
(b) Administrator Compliance Statement. On or before March 1st of
each calendar year, commencing in 2007, the Owner Trust Administrator shall
deliver to the Issuer a statement of compliance addressed to the Issuer and
signed by an authorized officer of the Owner Trust Administrator to the effect
that (i) a review of the Owner Trust Administrator's activities during the
immediately preceding calendar year (or applicable portion thereof) and of its
performance under this Agreement during such period has been made under such
officer's supervision, and (ii) to the best of such officer's knowledge, based
on such review, the Owner Trust Administrator has fulfilled all of its
obligations under this Agreement in all material respects throughout such
calendar year (or applicable portion thereof) or, if there has been a failure to
fulfill any such obligation in any material respect, specifically identifying
each such failure known to such officer and the nature and the status thereof.
(c) Report on Assessment of Compliance and Attestation
On or before 90 days after the end of each fiscal year,
commencing with the fiscal year ended December 31, 2006, the Owner
Trust Administrator shall:
(i) deliver to the Issuer a report (in form and substance
reasonably satisfactory to the Issuer) regarding the Owner Trust
Administrator's assessment of compliance with the Servicing Criteria
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. Such report shall be addressed to the Issuer and
signed by an authorized officer of the Owner Trust Administrator,
and shall address each of the Servicing Criteria specified on a
certification substantially in the form of Exhibit C hereto
delivered to the Issuer concurrently with the execution of this
Agreement;
15
(ii) deliver to the Issuer a report of a registered public
accounting firm reasonably acceptable to the Issuer that attests to,
and reports on, the assessment of compliance made by the Owner Trust
Administrator and delivered pursuant to the preceding paragraph.
Such attestation shall be in accordance with Rules 1-02(a)(3) and
2-02(g) of Regulation S-X under the Securities Act and the Exchange
Act; and
(iii) if requested by the Issuer not later than March 1 of the
calendar year in which such certification is to be delivered,
deliver to the Issuer and any other Person that will be responsible
for signing the certification a Sarbanes Certification on behalf of
an asset-backed issuer with respect to a securitization transaction
a certification in the form attached hereto as Exhibit B.
The Owner Trust Administrator acknowledges that the parties identified in
clause (a)(iii) above may rely on the certification provided by the Owner
Trust Administrator pursuant to such clause in signing a Sarbanes
Certification and filing such with the Commission. The Issuer will not
request delivery of a certification under clause (a)(iii) above unless the
Depositor is required under the Exchange Act to file an annual report on
Form 10-K with respect to an issuing entity whose asset pool includes the
Receivables.
(d) Intent of the Parties; Reasonableness. The Issuer and the
Owner Trust Administrator acknowledge and agree that the purpose of
Section 22 of this Agreement is to facilitate compliance by the Issuer
with the provisions of Regulation AB and related rules and regulations of
the Commission.
Neither the Issuer nor the Owner Trust Administrator shall exercise
its right to request delivery of information or other performance under
these provisions other than in good faith, or for purposes other than
compliance with the Securities Act, the Exchange Act and the rules and
regulations of the Commission thereunder (or the provision in a private
offering of disclosure comparable to that required under the Securities
Act). The Owner Trust Administrator 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, advice of
counsel, or otherwise, and agrees to comply with requests made by the
Indenture Trustee, the Servicer or any other party to the Transaction
Documents in good faith for delivery of information under these provisions
on the basis of evolving interpretations of Regulation AB. In connection
therewith, the Owner Trust Administrator shall cooperate fully with the
Owner Trust Administrator, on behalf of the Issuer to deliver to the Owner
Trust Administrator, on behalf of the Issuer (including any of its
assignees or designees), any and all statements, reports, certifications,
records and any other information necessary in the good faith
determination of the Owner Trust Administrator, on behalf of the Issuer,
to permit the Owner Trust Administrator, on behalf of the Issuer, to
comply with the provisions of Regulation AB.
The Issuer (including any of its assignees or designees) shall
cooperate with the Owner Trust Administrator by providing timely notice of
requests for information under these provisions and by reasonably limiting
such requests to information required, in the Owner Trust Administrator's,
16
on behalf of the Issuer, reasonable judgment, to comply with Regulation
AB.
17
SIGNATURE PAGE TO OWNER TRUST ADMINISTRATION AGREEMENT
IN WITNESS WHEREOF, the parties have caused this Agreement to be
duly executed and delivered 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
BMW FINANCIAL SERVICES NA, LLC,
as Owner Trust Administrator
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇
Title: Treasurer
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
18
EXHIBIT A
POWER OF ATTORNEY
STATE OF DELAWARE }
}
COUNTY OF NEW CASTLE }
KNOW ALL MEN BY THESE PRESENTS, that Wilmington Trust Company, a
Delaware banking corporation, not in its individual capacity but solely as owner
trustee (the "Owner Trustee") for BMW Vehicle Owner Trust 2006-A (the "Trust"),
does hereby make, constitute and appoint BMW Financial Services NA, LLC, as
administrator (the "Owner Trust Administrator") under the Owner Trust
Administration Agreement dated as of September 1, 2006 (the "Owner Trust
Administration Agreement"), among the Trust, the Owner Trust Administrator and
Deutsche Bank Trust Company Americas, as Indenture Trustee, as the same may be
amended from time to time, and its agents and attorneys, as Attorneys-in-Fact to
execute on behalf of the Owner Trustee or the Trust all such documents, reports,
filings, instruments, certificates and opinions as it should be the duty of the
Owner Trustee or the Trust to prepare, file or deliver pursuant to the Basic
Documents, or pursuant to Section 5.04 of the Trust Agreement, including,
without limitation, to appear for and represent the Owner Trustee and the Trust
in connection with the preparation, filing and audit of federal, state and local
tax returns pertaining to the Trust, and with full power to perform any and all
acts associated with such returns and audits that the Owner Trustee could
perform, including without limitation, the right to distribute and receive
confidential information, defend and assert positions in response to audits,
initiate and defend litigation, and to execute waivers of restrictions on
assessments of deficiencies, consents to the extension of any statutory or
regulatory time limit, and settlements.
All powers of attorney for this purpose heretofore filed or executed
by the Owner Trustee are hereby revoked.
Capitalized terms that are used and not otherwise defined herein
shall have the meanings ascribed thereto in the Owner Trust Administration
Agreement.
EXECUTED this ____ day of ____________, 200_.
WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Owner Trustee
By: ________________________________
Name:
Title:
STATE OF ____________ }
}
COUNTY OF __________ }
Before me, the undersigned authority, on this day personally appeared
____________________, known to me to be the person whose name is subscribed to
the foregoing instrument, and acknowledged to me that s/he signed the same for
the purposes and considerations therein expressed.
Sworn to before me this ___
day of _______, 200_.
Notary Public - State of _________________
EXHIBIT B
FORM OF ANNUAL CERTIFICATION
Re: The Administration Agreement dated as of September 1, 2006
(the "Agreement"), among BMW VEHICLE OWNER TRUST 2006-A, a
Delaware statutory trust (the "Issuer"), BMW FINANCIAL
SERVICES NA, LLC, as administrator (the "Owner Trust
Administrator"), and DEUTSCHE BANK TRUST COMPANY AMERICAS, not
in its individual capacity but solely as Indenture Trustee
(the "Indenture Trustee"),
I, ________________________________, the _______________________ of
[NAME OF COMPANY] (the "Company"), certify to the Issuer and the Depositor, and
their officers, with the knowledge and intent that they will rely upon this
certification, that:
(1) I have reviewed the servicer compliance statement of the Company
provided in accordance with Item 1123 of Regulation AB (the "Compliance
Statement"), the report on assessment of the Company's compliance with the
servicing criteria set forth in Item 1122(d) of Regulation AB (the
"Servicing Criteria"), provided in accordance with Rules 13a-18 and 15d-18
under Securities Exchange Act of 1934, as amended (the "Exchange Act") and
Item 1122 of Regulation AB (the "Servicing Assessment"), the registered
public accounting firm's attestation report provided in accordance with
Rules 13a-18 and 15d-18 under the Exchange Act and Section 1122(b) of
Regulation AB (the "Attestation Report"), and all servicing reports,
officer's certificates and other information relating to the servicing of
the Receivables by the Company during 200[ ] that were delivered by the
Company to the Issuer and the Depositor pursuant to the Agreement
(collectively, the "Company Servicing Information");
(2) Based on my knowledge, the Company Servicing Information, taken
as a whole, does not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements made, in
the light of the circumstances under which such statements were made, not
misleading with respect to the period of time covered by the Company
Servicing Information;
(3) Based on my knowledge, all of the Company Servicing Information
required to be provided by the Company under the Agreement has been
provided to the Issuer and the Depositor;
(4) I am responsible for reviewing the activities performed by the
Company as servicer under the Agreement, and based on my knowledge and the
compliance review conducted in preparing the Compliance Statement and
except as disclosed in the Compliance Statement, the Servicing Assessment
or the Attestation Report, the Company has fulfilled its obligations under
the Agreement in all material respects; and
(5) The Compliance Statement required to be delivered by the Company
pursuant to the Agreement, and the Servicing Assessment and Attestation
Report required to be provided by the Company and by any Subservicer or
Subcontractor pursuant to the Agreement, have been provided to the Issuer
and the Depositor and the Trustees. Any material instances of
noncompliance described in such reports have been disclosed to the Issuer
and the Depositor. Any material instance of noncompliance with the
Servicing Criteria has been disclosed in such reports.
Date: _________________________
By: ________________________________
Name:
Title:
2
EXHIBIT C
SERVICING CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The assessment of compliance to be delivered by the Owner Trust
Administrator, shall address, at a minimum, the criteria identified as below as
"Applicable Servicing Criteria":
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REFERENCE CRITERIA
--------------------------------------------------------------------------------
GENERAL SERVICING CONSIDERATIONS
--------------------------------------------------------------------------------
1122(d)(1)(i) Policies and procedures are instituted to monitor any
performance or other triggers and events of default in
accordance with the transaction agreements.
--------------------------------------------------------------------------------
1122(d)(1)(ii) If any material servicing activities are outsourced to
third parties, policies and procedures are instituted
to monitor the third party's performance and compliance
with such servicing activities.
--------------------------------------------------------------------------------
1122(d)(1)(iii) Any requirements in the transaction agreements to
maintain a back-up servicer for the receivables are
maintained.
--------------------------------------------------------------------------------
CASH COLLECTION AND ADMINISTRATION
--------------------------------------------------------------------------------
1122(d)(2)(i) Payments on receivables are deposited into the
appropriate custodial bank accounts and related bank
clearing accounts no more than two business days
following receipt, or such other number of days
specified in the transaction agreements.
--------------------------------------------------------------------------------
1122(d)(2)(ii) Disbursements made via wire transfer on behalf of an
obligor or to an investor are made only by authorized
personnel.
--------------------------------------------------------------------------------
1122(d)(2)(iii) Advances of funds or guarantees regarding collections,
cash flows or distributions, and any interest or other
fees charged for such advances, are made, reviewed and
approved as specified in the transaction agreements.
--------------------------------------------------------------------------------
1122(d)(2)(iv) The related accounts for the transaction, such as cash
reserve accounts or accounts established as a form of
over collateralization, are separately maintained
(e.g., with respect to commingling of cash) as set
forth in the transaction agreements.
--------------------------------------------------------------------------------
1122(d)(2)(v) Each custodial account is maintained at a federally
insured depository institution as set forth in the
transaction agreements. For purposes of this criterion,
"federally insured depository institution" with respect
to a foreign financial institution means a foreign
financial institution that meets the requirements of
Rule 13k-1(b)(1) of the Securities Exchange Act.
--------------------------------------------------------------------------------
1122(d)(2)(vi) Unissued checks are safeguarded so as to prevent
unauthorized access.
--------------------------------------------------------------------------------
1122(d)(2)(vii) Reconciliations are prepared on a monthly basis for all
asset-backed securities related bank accounts,
including custodial accounts and related bank clearing
accounts. These reconciliations are (A) mathematically
accurate; (B) prepared within 30 calendar days after
the bank statement cutoff date, or such other number of
days specified in the transaction agreements; (C)
reviewed and approved by someone other than the person
who prepared the reconciliation; and (D) contain
explanations for reconciling items. These reconciling
3
--------------------------------------------------------------------------------
REFERENCE CRITERIA
--------------------------------------------------------------------------------
items are resolved within 90 calendar days of their
original identification, or such other number of days
specified in the transaction agreements.
--------------------------------------------------------------------------------
INVESTOR REMITTANCES AND REPORTING
--------------------------------------------------------------------------------
Reports to investors, including those to be filed with
1122(d)(3)(i) the Commission, are maintained in accordance with the
transaction agreements and applicable Commission
requirements. Specifically, such reports (A) are
prepared in accordance with timeframes and other terms
set forth in the transaction agreements; (B) provide
information calculated in accordance with the terms
specified in the transaction agreements; (C) are filed
with the Commission as required by its rules and
regulations; and (D) agree with investors' or the
trustee's records as to the total unpaid principal
balance and number of receivables serviced by the
Servicer.
--------------------------------------------------------------------------------
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.
--------------------------------------------------------------------------------
POOL ASSET ADMINISTRATION
--------------------------------------------------------------------------------
1122(d)(4)(i) Collateral or security on receivables is maintained as
required by the transaction agreements or related
receivables documents.
--------------------------------------------------------------------------------
1122(d)(4)(ii) Receivables and related documents are safeguarded as
required by the transaction agreements
--------------------------------------------------------------------------------
1122(d)(4)(iii) Any additions, removals or substitutions to the asset
pool are made, reviewed and approved in accordance with
any conditions or requirements in the transaction
agreements.
--------------------------------------------------------------------------------
1122(d)(4)(iv) Payments on receivables, including any payoffs, made in
accordance with the related receivables documents are
posted to the Servicer's obligor records maintained no
more than two business days after receipt, or such
other number of days specified in the transaction
agreements, and allocated to principal, interest or
other items (e.g., escrow) in accordance with the
related receivables documents.
--------------------------------------------------------------------------------
1122(d)(4)(v) The Servicer's records regarding the receivables agree
with the Servicer's records with respect to an
obligor's unpaid principal balance.
--------------------------------------------------------------------------------
1122(d)(4)(vi) Changes with respect to the terms or status of an
obligor's receivables (e.g., loan modifications or
re-agings) are made, reviewed and approved by
authorized personnel in accordance with the transaction
agreements and related pool asset documents.
--------------------------------------------------------------------------------
1122(d)(4)(vii) Loss mitigation or recovery actions (e.g., forbearance
plans, modifications and deeds in lieu of foreclosure,
foreclosures and repossessions, as applicable) are
initiated, conducted and concluded in accordance with
the timeframes or other requirements established by the
transaction agreements.
--------------------------------------------------------------------------------
4
--------------------------------------------------------------------------------
REFERENCE CRITERIA
--------------------------------------------------------------------------------
1122(d)(4)(viii) Records documenting collection efforts are maintained
during the period a receivable is delinquent in
accordance with the transaction agreements. Such
records are maintained on at least a monthly basis, or
such other period specified in the transaction
agreements, and describe the entity's activities in
monitoring delinquent receivables including, for
example, phone calls, letters and payment rescheduling
plans in cases where delinquency is deemed temporary
(e.g., illness or unemployment).
--------------------------------------------------------------------------------
1122(d)(4)(ix) Adjustments to interest rates or rates of return for
receivables with variable rates are computed based on
the related receivables documents.
--------------------------------------------------------------------------------
1122(d)(4)(x) Regarding any funds held in trust for an obligor (such
as escrow accounts): (A) such funds are analyzed, in
accordance with the obligor's receivables documents, on
at least an annual basis, or such other period
specified in the transaction agreements; (B) interest
on such funds is paid, or credited, to obligors in
accordance with applicable receivables documents and
state laws; and (C) such funds are returned to the
obligor within 30 calendar days of full repayment of
the related receivables, or such other number of days
specified in the transaction agreements.
--------------------------------------------------------------------------------
1122(d)(4)(xii) Any late payment penalties in connection with any
payment to be made on behalf of an obligor are paid
from the servicer's funds and not charged to the
obligor, unless the late payment was due to the
obligor's error or omission.
--------------------------------------------------------------------------------
1122(d)(4)(xiii) Disbursements made on behalf of an obligor are posted
within two business days to the obligor's records
maintained by the servicer, or such other number of
days specified in the transaction agreements.
--------------------------------------------------------------------------------
1122(d)(4)(xiv) Delinquencies, charge-offs and uncollectible accounts
are recognized and recorded in accordance with the
transaction agreements.
--------------------------------------------------------------------------------
1122(d)(4)(xv) Any external enhancement or other support, identified
in Item 1114(a)(1) through (3) or Item 1115 of
Regulation AB, is maintained as set forth in the
transaction agreements.
--------------------------------------------------------------------------------
Date: _________________________
By: ________________________________
Name:
Title:
5