EXHIBIT 10.3
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FINANCIAL SERVICES VEHICLE TRUST
AND
BMW FINANCIAL SERVICES NA. INC.
SERVICING AGREEMENT
DATED AS OF AUGUST 30, 1995
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TABLE OF CONTENTS
Page
RECITALS ........................................................... 1
ARTICLE I
DEFINITIONS
Section 1.1. Definitions ......................................... 2
Agreement ........................................... 2
Board of Directors .................................. 2
Board Resolution .................................... 2
Booked Residual Value ............................... 2
Charged-off Lease ................................... 2
Company ............................................. 2
Dealer Agreement .................................... 3
Event of Default .................................... 3
Extension Fee ....................................... 3
Fees and Taxes ...................................... 3
Filings ............................................. 3
Force Majeure ....................................... 3
Insurance Expenses .................................. 3
Insurance Policy .................................... 3
Insurance Proceeds .................................. 4
Lease Documents ..................................... 4
Lease Number ........................................ 4
Lease Proceeds ...................................... 4
Lease Records ....................................... 4
Liquidation Expenses ................................ 4
Liquidation Proceeds ................................ 4
LP .................................................. 5
Matured Lease ....................................... 5
Matured Leased Vehicle Inventory .................... 5
Matured Vehicle ..................................... 5
Maturity Date ....................................... 5
Monthly Lease Payment ............................... 5
Obligee ............................................. 5
Obligor ............................................. 5
Officer's Certificate ............................... 5
Operating Expenses .................................. 5
Opinion of Counsel .................................. 6
Original Lease Balance .............................. 6
Origination Trust ................................... 6
Origination Trust Agreement ......................... 6
Origination Trust Documents ......................... 6
Origination Trustee ................................. 6
Other Proceeds ...................................... 6
Outstanding Lease Balance ........................... 6
Payment Ahead ....................................... 6
Payment Date ........................................ 6
Payment Information....................................................... 7
Person.................................................................... 7
Pool Balance.............................................................. 7
Portfolio................................................................. 7
Prepayment................................................................ 7
Proceeding................................................................ 7
Residual Value............................................................ 7
Responsible Officer....................................................... 7
Schedule of Leases and Leased Vehicles.................................... 7
Security Deposit.......................................................... 8
Servicer.................................................................. 8
Servicing Fee............................................................. 8
Servicing Rate Portion.................................................... 8
State..................................................................... 8
SUBI...................................................................... 8
SUBI Asset................................................................ 8
SUBI Portfolio............................................................ 8
SUBI Servicing Agreement Supplement....................................... 8
SUBI Supplement........................................................... 9
Title Document............................................................ 9
Trust Agent............................................................... 9
Trust Asset............................................................... 9
United States............................................................. 9
UTI....................................................................... 9
UTI Certificate........................................................... 9
UTI Holder................................................................ 9
UTI Pledge................................................................ 9
ARTICLE II
ADMINISTRATION AND SERVICING OF LEASES
Section 2.1. Servicer to Act as Servicer.......................................... 9
Section 2.2. Collection of Monthly Lease Payments and Remittances; Application of
Proceeds............................................................. 12
Section 2.3. Records.............................................................. 14
Section 2.4. Collection and Application of Security Deposits...................... 15
Section 2.5. Servicing Compensation; Fees, Costs and Expenses..................... 16
Section 2.6. Repossession and Sale of Leased Vehicles............................. 17
Section 2.7. Servicer to Act on Behalf of Origination Trust....................... 18
Section 2.8. Third Party Claims................................................... 20
Section 2.9. Insurance Policies................................................... 20
Section 2.10. Servicer Not to Resign; Assignment................................... 20
Section 2.11. Obligor Insurance Coverage in Respect of Leased Vehicles............. 21
Section 2.12. Certificates of Title................................................ 22
Section 2.13. Corporate Existence; Status; Merger.................................. 22
ARTICLE III
STATEMENTS AND REPORTS
Section 3.1. Reporting by the Servicer....................... 23
Section 3.2. Annual Officer's Certificate.................... 23
ARTICLE IV
DEFAULT
Section 4.1. Events of Default; Termination of Servicer...... 23
ARTICLE V
MISCELLANEOUS
Section 5.1. Termination of Agreement........................ 27
Section 5.2. Amendment....................................... 27
Section 5.3. Governing Law................................... 27
Section 5.4. Notices......................................... 28
Section 5.5. Severability.................................... 28
Section 5.6. Inspection and Audit Rights..................... 28
Section 5.7. Binding Effect.................................. 29
Section 5.8. Article and Section Headings.................... 29
Section 5.9. Execution in Counterparts....................... 29
Section 5.10. Rights Cumulative............................... 29
Section 5.11. Further Assurances.............................. 29
Section 5.12. Third-Party Beneficiaries....................... 30
Section 5.13. No Waiver....................................... 30
Section 5.14. Non-Petition Covenant........................... 30
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SERVICING AGREEMENT
SERVICING AGREEMENT, dated as of August 30, 1995 (as it may be further
amended, supplemented or modified, the "Agreement" between FINANCIAL SERVICES
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VEHICLE TRUST, a Delaware business trust (the "Origination Trust"), and BMW
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FINANCIAL SERVICES NA, INC., a Delaware corporation thereinafter, together with
its successors and assigns, the "Company" or , in its capacity as servicer
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hereunder, the "Servicer").
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RECITALS
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A. BMW Manufacturing, L.P. ("L.P.") and Chemical Bank Delaware, as
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trustee (the "Origination Trustee") have entered into that certain Trust
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Agreement dated as of August 30, 1995 (the same, as amended, supplemented or
modified and in effect from time to time, the "Origination Trust Agreement"),
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pursuant to which LP and the Origination Trustee formed the Origination Trust
for the purpose of taking assignments and conveyances of and holding and dealing
in various Trust Assets (as defined in the Origination Trust Agreement) in
accordance with the Origination Trust Agreement.
B. The Origination Trustee, on behalf of the Origination Trust at the
direction of LP, which also is the sole beneficiary of the Origination Trust,
intends to create and issue from time to time to or upon the order of LP various
special units of beneficial interests in the Origination Trust ("SUBIs"), whose
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beneficiaries generally will be entitled to the net cash flow arising from
designated portfolios of Trust Assets owned by the Origination Trust, and which
SUBIs may be used in connection with various Securitized Financings (as defined
in the Origination Trust Agreement).
C. The parties desire to enter into this Agreement to provide for, among
other things, the servicing of the Trust Assets (including those evidenced
by the SUBIs) by the Servicer.
D. The parties acknowledge that, in connection with one or more
Securitized Financings, it may be necessary or desirable to enter into
supplemental agreements hereto, including one or more SUBI Servicing Agreement
Supplements, providing for further specific servicing obligations with respect
to each Securitized Financing.
NOW THEREFORE, in consideration of the premises and the mutual covenants
herein contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1. Definitions.
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For all purposes of this Agreement, except as otherwise expressly provided
or unless the context otherwise requires, a) unless otherwise defined herein,
all capitalized terms shall have the meanings attributed to them by Section 0.1
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of the Origination Trust Agreement, (b) the capitalized terms defined in this
Article have the meanings assigned to them in this Article and include (i) all
genders and (ii) the plural as well as the singular, (c) all references to words
such as "herein", "hereof" and the like shall refer to this Agreement as whole
and not to any particular article or section within this Agreement, (d) the term
"include" and all variations thereon shall mean "include without limitation",
(e) the term "or" shall include "and/or", and (f) any reference herein to the
"Origination Trustee, acting on behalf of the Origination Trust," or words of
similar import, shall be deemed to mean the Origination Trustee, acting on
behalf of the Origination Trust, and all beneficiaries of the Origination Trust.
"Agreement" has the meaning set forth in the preamble.
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"Board of Directors" means, with respect to any Person, either the Board of
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Directors of such Person or any duly authorized committee of such Board.
"Board Resolution" means a copy of a resolution certified by the Secretary
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or an Assistant Secretary of any specified Person to have been duly adopted by
the Board of Directors of such Person and to be in full force and effect on the
date of such certification and delivered to the Person to which such resolution
is required to be delivered.
"Booked Residual Value" means, with respect to a Leased Vehicle, the amount
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stipulated in the related Lease (as reflected in the Schedule of Leases and
Leased Vehicles) as the estimated end of term residual value of such Leased
Vehicle at the Maturity Date of the related Lease, as established upon the date
of origination of the related Lease.
"Charged-off Lease" means a Lease with respect to which (a) the related
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Leased Vehicle has been repossessed and sold or otherwise disposed of, or (b)
the Lease has been written off by the Servicer in accordance with its normal
policies for writing off lease contracts other than with respect to
repossessions.
"Company" has the meaning set forth in the preamble.
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"Dealer Agreement" means that certain Dealer Agreement substantially in the
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form of the Servicer's current form (attached hereto as Attachment A) or such
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other form as the Servicer shall approve, entered into between Servicer and a
Dealer providing for the Dealer, acting as an independent contractor, to enter
into retail vehicle leases that, if approved by the Servicer (whether acting for
its own account or for the account of any Person for whom it is acting as a
servicer) in accordance with the terms and conditions of such agreement, will be
acquired, along with the title to the related leased vehicle, by the Servicer
for its own account or by an assignee of the Servicer, in either case at prices
determined as provided for in such agreement.
"Event of Default" means any of the acts, events or occurrences set forth
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in Section 4.1(a).
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"Extension Fee" means, with respect to any Lease that has had its Maturity
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Date extended pursuant to Section 2.2(b) (ii), any payment required to be made
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with respect to such Lease by the Obligor.
"Fees and Taxes" has the meaning set forth in Section 2.1(b) (ii).
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"Filings" has the meaning set forth in Section 2.7(e).
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"Force Majeure" means any delay or failure in performance caused by acts
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beyond the Servicer's reasonable control, including acts of God, war, vandalism,
sabotage, accidents, fires, floods, strikes, labor disputes, mechanical
breakdown, shortages or delays in obtaining suitable parts or equipment,
material, labor, or transportation, acts of subcontractors, interruption of
utility services, acts of any unit of government or governmental agency, or any
similar or dissimilar cause.
"Insurance Expenses" means any amount of Insurance Proceeds (a) applied to
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the repair of the related Leased Vehicle, (b) released to an Obligor in
accordance with the normal servicing procedures of the Servicer, or (c)
representing other related expenses incurred by the Servicer not otherwise
included in Liquidation Expenses and recoverable under this Agreement.
"Insurance Policy" means, with respect to a Lease, Leased Vehicle or
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Obligor, any policy of comprehensive, collision, public liability, physical
damage, personal liability, credit health or accident, credit life or employment
insurance, or any other form of insurance.
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"Insurance Proceeds" means, with respect to any Lease or the related Leased
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Vehicle or Obligor, proceeds paid to the Servicer, the Origination Trust or the
Origination Trustee, on behalf of the Origination Trust, pursuant to an
Insurance Policy and amounts paid to the Origination Trust, the Origination
Trustee or the Servicer under any other insurance policy related to such Lease,
Leased Vehicle or Obligor (including but not limited to any contingent and
excess liability insurance policy or residual value insurance policy maintained
by or on behalf of the Origination Trust).
"Lease Documents" means, with respect to each Lease, the fully executed
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Lease and any agreement(s) modifying such Lease (including, without limitation,
any extension agreement(s) relating to extended Leases).
"Lease Number" means, with respect to any Lease, the number assigned to
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such Lease, which number is or will be set forth in the Schedule of Leases and
Leased Vehicles.
"Lease Proceeds" means all monies received upon the collection, sale,
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exchange or other disposition of the Leases and the related Leased Vehicles.
"Lease Records" has the meaning specified in Section 2.3(b).
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"Line of Credit" means any agreement between LP and the Company providing
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for the making of loans or advances to LP from time to time to finance LP's
investment in the UTI.
"Liquidation Expenses" means reasonable out-of-pocket expenses incurred by
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the Servicer in connection with the attempted realization of the full amounts
due or to become due under any Lease, including expenses incurred in connection
with the repossession of any related Leased Vehicle, the sale of such a Leased
Vehicle, whether upon its repossession or upon return of a Leased Vehicle if the
related Lease is a Matured Lease, any collection effort (whether or not
resulting in a lawsuit against the Obligor under such Lease) or any application
for Insurance Proceeds.
"Liquidation Proceeds" means gross amounts received by the Servicer, the
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Origination Trust or the Origination Trustee, on behalf of the Origination Trust
(before reimbursement for Liquidation Expenses), in connection with the
realization of the full amounts due or to become due under any Lease, whether
from the sale or other disposition of the related Leased Vehicle (without regard
to whether such proceeds exceed the Booked Residual Value therefor), the
proceeds of any collection effort (whether or not resulting in a lawsuit against
the Obligor under such Lease), the proceeds of recourse payments by Dealers,
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receipt of Insurance Proceeds, or collection of amounts due hereunder in respect
of that Lease (including but not limited to the application of Security
Deposits pursuant to Section 2.4) or otherwise.
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"LP" has the meaning set forth in Recital A.
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"Matured Lease" means any Lease that has reached its Maturity Date.
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"Matured Leased Vehicle Inventory" as of any date means all Matured
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Vehicles that have not yet been sold or otherwise disposed of by the Servicer
pursuant to this Agreement.
"Matured Vehicle" as of any date means any Leased Vehicle the related
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Lease of which has reached its Maturity Date, which Leased Vehicle was returned
to the Servicer on behalf of the Origination Trust, regardless of the status of
the sale or disposition of such Leased Vehicle as of such date.
"Maturity Date" means, with respect to any Lease, the date on which such
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Lease is scheduled to terminate, as such date may be extended pursuant to
Section 2.2(b)(ii).
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"Monthly Lease Payment" means, with respect to any Lease, the amount of
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each fixed monthly payment payable to the Obligee of such Lease in accordance
with the terms thereof, net of any portion of such monthly payment that
represents late payment charges, Extension Fees or collections allocable to
payments to be made by Obligors for payment of insurance premiums, excise taxes
or similar items.
"Obligee" means each Person who is the lessor under a Lease or the
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assignee thereof, including the Origination Trust.
"Obligor" means each Person who is the lessee under a Lease.
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"Officer's Certificate" means a certificate signed by the Chairman of
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the Board of Directors, the President or a Vice President, the Treasurer or an
Assistant Treasurer or the Secretary or an Assistant Secretary of any specified
Person (or of a general partner of any specified Person that is a partnership)
and delivered to any specified Person.
"Operating Expenses" means, for any period, the sum of all Servicing
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Fees, Origination Trustee fees and expenses and all other Origination Trust
expenses, other than Servicer Expenses.
"Opinion of Counsel" means a written opinion of counsel who may, except
as otherwise expressly provided in this Agreement, be counsel for the Company or
the Servicer (including in-house
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counsel employed by the Company or the Servicer or any Affiliate thereof) and
who, in the case of opinions delivered to the Origination Trust or the
Origination Trustee, shall be reasonably satisfactory to the Origination
Trustee.
"Original Lease Balance" means, for each Lease, the initial Outstanding
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Lease Balance for that Lease.
"Origination Trust" has the meaning set forth in the preamble.
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"Origination Trust Agreement" has the meaning set forth in Recital A.
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"Origination Trust Documents" means and includes this Agreement, the
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Origination Trust Agreement, and all amendments or supplements or modifications
hereto or thereto.
"Origination Trustee" has the meaning set forth in Recital A.
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"Other Proceeds" means moneys arising from the sale, exchange, lease,
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collection or other disposition of lease contracts and related leased vehicles
or other receivables (other than the Leases and Leased Vehicles) as to which the
Servicer is acting as servicer.
"Outstanding Lease Balance" means, with respect to any Lease as of any
date, an amount equal to (a) the sum of all Monthly Lease Payments remaining to
be made (provided, however, that Payments Ahead received but not yet applied are
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deemed to be Monthly Lease Payments remaining to be made), less any unearned
finance or other charges relating to the period beginning after the next
succeeding Payment Date on such Lease (determined in accordance with the
actuarial method) in accordance with the Servicer's usual practices, plus (b)
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the Booked Residual Value of the related Leased Vehicle.
"Payment Ahead" means any payment of one or more Monthly Lease Payments
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(not constituting a Prepayment) remitted by an Obligor with respect to a Lease
in excess of the Monthly Lease Payment due with respect to such Lease, which
sums the Obligor has instructed the Servicer to apply to Monthly Lease Payments
due in one or more immediately subsequent calendar months.
"Payment Date" means, as to each Lease, the date each month therein set
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forth as the date Monthly Lease Payments are due.
"Payment Information" shall have the meaning set forth in
Section 2.2(c)(i).
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"Person" means any legal person, including any individual corporation,
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partnership, joint venture, association, joint stock company, trust, limited
liability company, bank, trust company, estate (including any beneficiaries
thereof), unincorporated organization or government or any agency or political
subdivision thereof.
"Pool Balance" means, as of any date, the sum of the Outstanding Lease
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balances of all Leases at such date.
"Portfolio" means any collection of specified Leases and Leased Vehicles
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the proceeds from which are to be segregated within the Origination Trust
accounts from those of Leases and Leased Vehicles in all other Portfolios;
"Portfolio" shall include each SUBI Portfolio plus a separate portfolio
consisting of all those Leases and Leased Vehicles not allocated to any SUBI
Portfolio.
"Prepayment" means payment to the Servicer of 100% of the Outstanding
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Lease Balance of a Lease (exclusive of any Lease referred to in the definition
of the term "Charged-off Lease"), including any related payment of interest.
"Proceeding" means any suit in equity, action at law or other judicial
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or administrative proceeding.
"Residual Value" means the Liquidation Proceeds, net of Liquidation
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Expenses, actually received by the Servicer or the Origination Trustee, on
behalf of the Origination Trust, with respect to a Matured Vehicle.
"Responsible Officer" means, when used with respect to the Origination
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Trustee, any officer in the corporate trust office of the Origination Trustee
with direct responsibility for the administration of the Origination Trust
Agreement or any other officer of the Origination Trustee to whom any corporate
trust matter is referred because of his or her knowledge of or any familiarity
with the particular subject.
"Schedule of Leases and Leased Vehicles" means the list of Leases and
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related Leased Vehicles, on microfiche, microfilm or hard paper copy, that are
included as Trust Assets in the Origination Trust, as such list may be revised
and supplemented from time to time pursuant to Section 3.1, and which shall set
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forth the following information with respect to each such lease:
Lease Number
Date of Origination
Maturity Date
Monthly Lease Payment
Original Lease Balance
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Outstanding Lease Balance as of the last day of the immediately preceding
calender month
Booked Residual Value
Portfolio
Lease Number
Vehicle Identification Number
Model Year
Make
Model
"Security Deposit" means, with respect to any Lease, the refundable
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security deposit specified in such Lease.
"Servicer" has the meaning set forth in preamble.
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"Servicing Fee" shall have the meaning specified in Section 2.5(a).
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"Servicing Rate Portion" shall have the meaning specified in Section
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2.5(a).
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"State" means any state of the United States, the District of Columbia and
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the Commonwealth of Puerto Rico.
"SUBI" has the meaning set forth in Recital B.
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"SUBI Asset" means (a) any Lease or Leased Vehicle segregated by or on
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behalf of the Origination Trust into any SUBI Portfolio as to which a SUBI has
been created and issued and remains outstanding, and (b) any other Trust Assets
allocated to or earned by any SUBI.
"SUBI Portfolio" means, as to each SUBI, that collection of Leases, Leased
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Vehicles and other associated Trust Assets allocated by the Origination Trust to
such SUBI from time to time from among all those Leases, Leased Vehicles and
other associated Trust Assets owned by the Origination Trust.
"SUBI Servicing Agreement Supplement" means any supplement or amendment to
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this Agreement entered into from time to time to accommodate the creation and
issuance of a particular SUBI and to specify any special responsibilities or
obligations that the Servicer may be required to undertake in connection
therewith.
"SUBI Supplement" means any supplement or amendment to the Origination
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Trust Agreement executed from time to time in connection with the creation and
issuance of a particular SUBI.
"Title Document" means, with respect to any Leased Vehicle, the Certificate
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of Title of such Leased Vehicle.
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"Trust Agent" means any Person with whom the Origination Trustee contracts
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to act as its agent with respect to carrying out certain of its duties as
Origination Trustee hereunder, as provided for in Section 5.3 e of the
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Origination Trust Agreement.
"Trust Asset" means any asset of any type owned by the Origination Trust.
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"United States" means the United States of America, its territories and
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possessions and areas subject to its jurisdiction.
"UTI" means the undivided trust interest in the Origination Trust created
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pursuant to Section 4.1 of the Origination Trust Agreement.
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"UTI Certificate" has the meaning set forth in Section 4.1 of the
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Origination Trust Agreement.
"UTI Holder" means initially, LP and any other registered holder of the
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UTI Certificate.
"UTI Pledge" means a pledge of, and a grant of a security interest in, the
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UTI and the UTI Certificate in connection with a Securitized Financing.
ARTICLE II
ADMINISTRATION AND SERVICING OF LEASES
Section 2.1 Servicer to Act as Servicer.
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(a) The Servicer shall service, administer and collect under the Leases in
accordance with the terms of this Agreement and shall have full power and
authority, acting alone and subject only to the specific requirements and
prohibitions of this Agreement, to do any and all things in connection with such
servicing, administering and collecting that it may reasonably deem necessary or
desirable. The duties of the Servicer shall include, among other things,
collecting and posting payments, responding to inquiries of Obligors on the
Leases, investigating delinquencies, sending payment statements and reporting
tax information to Obligors, paying costs of disposition of Leased Vehicles
related to Charged-off Leases and policing the Leases, administering the Leases,
including accounting for collections, furnishing monthly and annual statements
to the Origination Trust with respect to distributions, generating federal and
state income tax information and preparing and filing all tax returns of the
Origination Trust.
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Without limiting the generality of the foregoing, the Servicer hereby
expressly agrees to perform and carry out on behalf of the Origination Trust,
all of the obligations on the part of the Obligee under the Leases and is hereby
authorized and empowered by the Origination Trust to execute and deliver, in its
own name or on behalf of the Origination Trust, or both of them, as the case may
be, any and all instruments of satisfaction, extension or cancellation, or of
partial or full release or discharge, and all other comparable instruments, with
respect to the Leases or the Leased Vehicles.
If the Servicer shall commence a legal proceeding to enforce a Lease,
the Origination Trust shall thereupon be deemed to have automatically assigned,
solely for the purpose of collection on behalf of the Origination Trust, its
interest in such Lease and the related Leased Vehicle to the Servicer to the
extent necessary for the purposes of participating in such proceeding. If in
any enforcement suit or legal proceeding it is held that the Servicer may not
enforce a Lease on the grounds that it is not the real party in interest or a
holder entitled to enforce such Lease, the Origination Trust shall, at the
expense and direction of the Servicer, take steps to enforce the Lease,
including bringing suit in its name. The Origination Trust shall furnish the
Servicer with any powers of attorney and other documents necessary or
appropriate to enable the Servicer to carry out its servicing and administrative
duties hereunder. The Servicer agrees that its servicing of the Leases shall be
carried out in accordance with customary and usual procedures of institutions
that service closed-end automobile and sports utility vehicle leases and, to the
extent more exacting, the procedures used by the Servicer in respect of any such
leases serviced by it for its own account or the accounts of its Affiliates.
(b) (i) The Servicer shall continue to maintain or enter into, in the
ordinary course of its business, Dealer Agreements with Dealers selected by the
Servicer from time to time in its reasonable discretion. The Servicer shall
direct each of the Dealers with whom it has such a Dealer agreement (other than
those identified in writing by LP or the Servicer to the Origination Trustee
from time to time as nonparticipants in the Origination Trust allocation
arrangements) to assign to the Origination Trust all approved Leases (other than
those types of leases or those specific leases identified in writing by LP or
the Servicer to the Origination Trustee from time to time) (and the Certificates
of Titles to the associated Leased Vehicles) originated by the Dealer. The
Servicer shall direct each such Dealer to show on the face of the Lease as the
assignee "Financial Services Vehicle Trust." The Servicer shall further direct
each such Dealer to show on each application for the initial Certificate of
Title for each Leased Vehicle the owner of
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the Leased Vehicle as "Financial Services Vehicle Trust" or "BMW Facility
Partners, Inc., as Nominee", using the quoted phrase or such other similar
phrase as will satisfy the Registrar of Titles in each relevant jurisdiction, or
such other designation(s) as the Servicer shall determine. The Servicer shall
direct each such Dealer to include the address of the Obligee as the address of
the recorded owner and the address of the Servicer's principal service facility,
or that of any substitute or successor Servicer, and otherwise to comply with
the Servicer's normal requirements under its Dealer Agreements with respect to
each Lease and Certificate of Title. Notwithstanding anything to the contrary
contained herein, however, should any such Dealer fail to assign either a lease
or leased vehicle to the Origination Trust, the Servicer shall not be obligated
to cause any correction thereof, but, unless and until such error is corrected,
such lease and leased vehicle shall not be included as a Trust Asset. Other
errors by a Dealer in complying with the foregoing Servicing instructions, if
immaterial, shall not affect the status of a lease or leased vehicle as a Trust
Asset nor shall the Servicer be obligated to correct them. The obligations of
the Servicer pursuant to this Section 2.1(b)(i) shall survive any partial or
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complete termination of the Servicer pursuant hereto.
(ii) Upon the satisfaction by the Dealer of all of the requirements set
forth in its Dealer Agreement entitling the Dealer to payment with respect to
the Lease and Leased Vehicle (including without limitation the execution and
delivery thereby of all instruments of assignment of such Lease and Leased
Vehicle to the Origination Trust), the presentation by the Dealer of a properly
prepared draft in accordance with such Dealer Agreement and the approvalof the
draft by the Servicer in its ordinary course of business under the Dealer
Agreement, the Servicer shall remit to such Dealer the amount of such draft.
Unless otherwise set forth in a SUBI Supplement or SUBI Servicing
Supplement Agreement with respect to any SUBI Portfolio, LP and the Origination
Trust hereby direct the Servicer to draw on the Line of Credit either to fund
the drafts presented by the Dealers, or to reimburse itself for advances made by
it to fund such drafts, together with any fees, taxes and the like paid by the
Servicer on behalf of the Origination Trust ("Fees and Taxes"). Such draws shall
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constitute the payment of the purchase price for the UTI by LP.
(c) Notwithstanding anything to the contrary contained in Section
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2.1(b)(ii), to the extent that, at the time of any request by the Servicer for
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reimbursement pursuant to that section the Servicer shall owe any amount to the
Origination Trust, the Origination Trust may set off the amount of such
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Servicer obligation against any reimbursement otherwise payable to the Servicer
thereunder.
(d) Coincident with the execution and delivery of this Agreement, the
Servicer shall furnish the Origination Trustee, on behalf of the Origination
Trust, with an Officer's Certificate listing the officers of the Servicer
involved in, or responsible for, the administration and servicing of the Leases,
which list shall from time to time be updated by the Servicer.
Section 2.2. Collection of Monthly Lease Payments and Remittances;
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Application of Proceeds.
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(a) The Servicer shall use commercially reasonable efforts to (i)
collect all payments required under the terms and provisions of each Lease; and
(ii) cause each Obligor to make all payments in respect of the Lease to which
such Obligor is a party or otherwise obligated, accompanied by an invoice or
payment coupon bearing the number of the Lease to which such payment relates.
(b) Consistent with the foregoing, the Servicer may in its discretion
(i) waive any late payment charge or Extension Fee, in whole or in part, in
connection with delinquent payments on or extensions of a Lease and (ii) extend
the Maturity Date of any Lease.
(c) As to any Monthly Lease Payments, Liquidation Proceeds, Insurance
Proceeds, Prepayments, Payments Ahead or any other payments by or on behalf of
any Obligor or otherwise with respect to any Lease or Leased Vehicle including
(if applicable) any proceeds of recourse payments by the originating Dealer,
whether received by the Servicer through any lock box or similar mechanism used
for the collection of regular periodic payments on receivables owned or serviced
by it or received directly by the Servicer at any of its servicing offices, but
subject to Section 2.6 with regard to Liquidation Proceeds and Insurance
-----------
Proceeds:
(i) Upon receipt of any such funds, the Servicer shall deposit
such funds into its operating account and shall ascertain promptly (but in any
event within two (2) business Days) the following information: (A) the amount of
each receipt, (B) the Lease Number to which such receipt relates, (C) the nature
of the payment (i.e., whether a Monthly Lease Payment, Insurance Proceeds, other
----
Liquidation Proceeds, a Prepayment, payment of the Residual Value of the related
Leased Vehicle or any other payment by or on behalf of any Obligor), (D) the
date of receipt of payment; and (E) the Portfolio to which such Lease has been
allocated (collectively, the "Payment Information").
-------------------
12
(ii) As to any such funds received by the Servicer accompanied by
all necessary Payment Information, the Servicer shall (A) enter the Payment
Information in its computer system, (B) segregate all such funds by the
Portfolio(s) to which such funds relate, and (C) except as set forth in this
Agreement, deposit all such funds (net of reimbursement of any Liquidation
Expenses incurred by the Servicer with respect to any Leased Vehicle whose
Liquidation Proceeds are included among such funds) relating to any SUBI
Portfolio as set forth in the related SUBI Servicing Agreement Supplement and
(D) deposit all funds (net of reimbursement of any Liquidation Expenses incurred
by the Servicer with respect to any Leased Vehicle whose Liquidation Proceeds
are included among such funds) relating to the UTI Portfolio as directed by LP.
(iii) As to such funds received by the Servicer that are not
accompanied by all Payment Information, the Servicer shall enter into its
computer system such Payment Information as is available from time to time.
Upon receipt of the remaining Payment Information, the Servicer shall take the
actions with respect to such funds as are set forth in Section 2.2(c) (ii). The
-------------------
Servicer shall use its best efforts to obtain any missing Payment Information as
soon as practicable after receipt of any such funds.
(iv) Upon the determination by the Servicer that any Lease Proceeds
received by it with respect to any Lease constitute one or more Payments Ahead,
the Servicer shall, unless otherwise maintain appropriate records of such
Payment Ahead so as to be able to timely apply such Payment Ahead as a Monthly
Lease Payment with respect to the applicable Lease.
(d) As to any other funds received by the Servicer with respect to any
Trust Asset:
(i) With respect to any such funds relating to a SUBI Asset, upon
receipt the Servicer shall deposit such funds as set forth in the appropriate
SUBI Servicing Agreement Supplement; and
(ii) With respect to any such funds relating to any Trust Asset
other than a SUBI Asset, the Servicer shall pay all necessary and appropriate
Origination Trust expenses and liabilities, including without limitation the
Servicing Fee (and, to the extent not previously deducted from Liquidation
Proceeds, expenses, if any) due the Servicer under Section 2.5 and any other
-----------
servicing fees or expenses due under any other servicing agreement entered into
by the Origination Trustee on behalf of the Origination trust, (C) Origination
Trustee fees and expenses and (D) other Origination Trust expenses and
liabilities.
13
(e) The Servicer shall from time to time, in accordance with the
Origination Trust Agreement or the applicable SUBI Supplement thereto, (i)
identify and allocate on the books and records of the Origination Trust certain
Leases and Leased Vehicles into one or more SUBI Portfolios, either upon the
initial creation of such SUBI or periodically following its creation, and (ii)
remit a portion of the Lease Proceeds received by the Servicer with respect to
any SUBI Portfolio to, or on behalf of, the Origination Trust for Such SUBI's
appropriate share of the expenses and liabilities of the Origination Trust as
determined in accordance with the Origination Trust Agreement and the applicable
SUBI Supplement.
(f) The Servicer shall account to the Origination Trustee for each
Portfolio of Trust Assets separately and in accordance with any supplement or
amendment to this Agreement entered into with respect to such Portfolio.
Section 2.3. Records.
-------
(a) As to any Lease Proceeds or other receipts with respect to any Trust
Asset, including without limitation Monthly Lease Payments, Prepayments,
Liquidation Proceeds and any other payments by or on behalf of any Obligor or
otherwise with respect to any Lease or Leased Vehicle, the Servicer shall
maintain or cause to be maintained such computer and manual records with respect
to all such Lease Proceeds and other receipts in accordance with the customary
and usual procedures of institutions which service closed-end automobile and
sports utility vehicle leases and, to the extent more exacting, the procedures
used by the Servicer in respect of any such leases serviced by it for its own
account or the accounts of its Affiliates.
(b) The Servicer shall retain or cause to be retained all data (including,
without limitation, computerized records), together with all operating software
and appropriate documentation, relating directly to or maintained in connection
with the servicing of the Leases (the "Lease Records"). The Servicer shall
-------------
provide or cause to be provided to the origination Trustee, on behalf of the
Origination Trust, upon its request, copies of all such data and appropriate
documentation at all reasonable times and upon reasonable notice. The Servicer
shall promptly report to the Origination Trustee, on behalf of the Origination
Trust, any failure on its part to maintain the Lease Records as herein provided
and promptly take appropriate action to remedy any such failure.
(c) Upon the occurrence and during the continuance of an Event of Default
that could give rise to the termination of the Servicer's rights hereunder with
regard to any Portfolio, the
14
Servicer shall deliver to the successor servicer appointed pursuant to the terms
hereof, or, if otherwise directed by the Origination Trust, to the Origination
Trustee all such data, operating software and appropriate documentation
necessary for the servicing of the Leases included in such Portfolio, including
but not limited to the related Lease Documents and Title Documents, all monies
collected by it and required to be deposited in any account on behalf of the
Origination Trust relating to that Portfolio, all related Security Deposits and
any related Leased Vehicle in its possession that has been repossessed or is
part of Matured Leased Vehicle Inventory and in either case has not yet been
sold or otherwise disposed of pursuant to Section 2.6. Without limitation of the
-----------
foregoing, if the rights of the Servicer shall have been terminated in
accordance with Section 4.1(b) with regard to any Portfolio, the Servicer shall
--------------
deliver to the successor servicer appointed pursuant to the terms hereof, or, if
otherwise directed by the Origination Trust, to the Origination Trustee all such
data, operating software and appropriate documentation necessary for the
servicing of the Leases included in that Portfolio and all monies collected by
it and required to be deposited, as appropriate, in any Origination Trustee
account relating to that Portfolio. In addition to delivering such data,
operating software and appropriate documentation and moneys, the Servicer shall
use its commercially reasonable efforts to effect the orderly and efficient
transfer of the servicing of the Leases included in that portfolio with respect
to which such termination shall have occurred to the party that will be assuming
responsibility for such servicing, including, without limitation, directing
Obligors to remit payments in respect of those Leases to an account or address
designated by the Origination Trustee or such new servicer.
Section 2.4. Collective and Application of Security Deposits.
-----------------------------------------------
Subject to Section 2.3 (c), the Servicer shall retain each Security
---------------
Deposit remitted to it (or deemed remitted to it) as agent and bailee for the
Origination Trust and as proceeds of the Leases, and shall apply the proceeds of
such Security Deposits in accordance with applicable law, its customary and
usual servicing procedures and the Leases, including but not limited to using
the Security Deposit in respect of any Lease for the payment of any amount
resulting from the related Obligor's default or failure to pay all amounts
required to be paid under such Lease or resulting from damage to the related
Leased Vehicle. In the event that any Lease becomes a Charged-Off Lease or, if
earlier, the related Leased Vehicle is repossessed, then the related Security
Deposit, to the extent permitted by such Lease and applicable law, shall thereby
become Liquidation Proceeds. On at least a monthly basis or (with respect to a
SUBI portfolio) as otherwise set forth in
15
an applicable SUBI Servicing Agreement Supplement, but otherwise as provided in
Section 2.2(c)(ii), the Servicer shall remit each Security Deposit that became
------------------
Liquidation Proceeds during the previous month; otherwise, each Security
Deposit, after deduction for amounts applied towards the payment of any amount
resulting from the related Obligor's default or failure to pay any amounts
required to be paid under such Lease or damage to the related Leased Vehicle,
shall be returned to the related Obligor by the Servicer upon termination of
such Lease.
Section 2.5. Servicing Compensation; Fees, Costs and Expenses.
------------------------------------------------
(a) As compensation for the performance of its obligations under this
Agreement and subject to the terms of this Section and Section 4.1(b) and the
--------------
terms of any applicable SUBI Servicing Agreement Supplement, the Servicer shall
be entitled to receive from the Origination Trust, on the first day of each
calendar month, a fee (the "Servicing Fee") equal to the sum of:
-------------
(i) An amount (the "Servicing Rate Portion") equal to one-twelfth
----------------------
of 0.50% of the Pool Balance as of the first day of the preceding calendar
month; and
(ii) Any late fees, termination fees and other administration fees
or similar charges (including any Extension Fee) paid by any Obligor
pursuant to a Lease during the related Collection Period.
The Servicing Rate Portion will be calculated and paid based upon a 360-day
year consisting of twelve 30-day months. The Servicer shall pay all expenses
incurred by it in connection with its servicing activities hereunder and shall
not be entitled to reimbursement of such expenses except to the extent they
constitute Liquidation Expenses or expenses recoverable under an applicable
insurance policy, as provided in Section 2.6. For so long as there shall be only
-----------
one Servicer for the Origination Trust, the Servicing Fee shall, for purposes of
Section 7.1(b) of the Origination Trust Agreement, be deemed to be an expense
--------------
incurred with respect to the Trust Assets generally; if at any time the Servicer
shall only service some (but not all) Portfolios, the Servicing Fee shall, for
purposes of Section 7.1(b) of the Origination Trust Agreement, be deemed to be
--------------
an expense incurred with respect to that discrete group of Trust Assets
contained in the Portfolio(s) the Servicer then services.
(b) As additional servicing compensation, the Servicer also shall be
entitled to the earnings from the investment of Security Deposits retained as
and to the extent provided in Section 2.4 hereof and as permitted by applicable
-----------
law.
16
Section 2.6 Repossession and Sale of Leased Vehicles.
----------------------------------------
In accordance with the servicing procedures specified in this Article Two,
-----------
the Servicer shall use its commercially reasonable efforts (consistent with the
customary and usual procedures of institutions that service closed-end
automobile and sports utility vehicle leases and, to the extent more exacting,
the procedures used by the servicer in respect of any such leases serviced by it
for its own account or the accounts of its Affiliates) to repossess or otherwise
take possession of the Leased Vehicle related to any Lease that the servicer
shall have determined to be in default or a Lease as to which a Prepayment has
been made but the related Leased Vehicle has not been purchased by the Obligor.
The Servicer shall, in accordance with the standards set forth in the
immediately preceding paragraph:
(a) follow such practices and procedures as it shall deem necessary or
advisable in its servicing of closed-end automobile and sports utility vehicle
leases, which may include reasonable efforts to realize upon any recourse to
Dealers, consigning a Leased Vehicle to a motor vehicle dealer for resale or
selling a Leased Vehicle at public or private sale; and
(b) sell or otherwise dispose of each Leased Vehicle that is so
repossessed, in accordance with the related Lease, or that becomes part of
Matured Leased Vehicle Inventory and, if the Lease is in default, shall commence
and prosecute any Proceedings in respect of such Lease (and the related Leased
Vehicle) in its own name or, if the Servicer deems it necessary, in the name of
the Origination Trust.
The obligations of the Servicer under this Section are subject to the
provision that, in the event of damage to a Leased Vehicle from a cause for
which the Obligor under the related Lease was not required to obtain casualty
insurance or maintain such insurance in full force and effect, the Servicer
shall not be required to expend its own funds in repairing such Leased Vehicle
unless it shall reasonably determine that such restoration will increase
Liquidation Proceeds (net of Liquidation Expenses) of the related Lease by at
least an equivalent amount. The Servicer shall only expend funds in connection
with the repossession and/or sale of any Leased Vehicle to the extent that it
reasonably determines that Liquidation Expenses will not exceed the anticipated
Liquidation Proceeds. The Servicer shall be responsible for all other costs and
expenses incurred by it in connection with any action taken in respect of a
Lease or the related Leased Vehicle; provided, however, that subject to Section
-------- ------- -------
2.5, it shall be entitled to
---
17
reimbursement of such costs and expenses to the extent they constitute
Liquidation Expenses or expenses recoverable under an applicable insurance
policy. All Liquidation Proceeds and Insurance Proceeds shall be deposited and
transferred as provided in Section 2.2. The foregoing notwithstanding, prior to
-----------
transferring any such funds out of its operating account, the Servicer shall
first deduct therefrom any unreimbursed Liquidation Expenses and Insurance
Expense. In connection with this Section 2.5, the Origination Trust shall grant
-----------
to the Servicer a Power of Attorney in the form attached as Exhibit A with
---------
regard to the Leased Vehicles, and the Servicer, as "Grantee" thereunder, with
full power of substitution.
Section 2.7. Servicer to Act on Behalf of Origination Trust.
----------------------------------------------
(a) In order to facilitate the servicing of the Leases by the Servicer,
the Origination Trust hereby appoints the Servicer as its agent and bailee to
retain possession of the Lease Documents, Title Documents and any other related
items that from time to time come into possession of the Servicer, and the
Servicer hereby accepts such appointment.
(b) The Servicer shall maintain each Lease Document and Title Document at
its office located at ▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, or at
such other office as shall be specified to the Origination Trustee by 30 days,
prior written notice. The Servicer shall promptly report to the Origination
Trustee any failure on its part to retain possession of the Lease Documents or
Title Documents and promptly take appropriate action to remedy any such failure.
(c) Upon written instructions from the Origination Trust, setting forth a
reasonable basis therefor, or in the exercise of its duties and powers
hereunder, the Servicer shall release any Lease Document, Title Document, or
other related item to the Origination Trustee or its agent or designee, as the
case may be, at such place or places as the Origination Trustee may designate,
as soon as practicable. The Servicer shall not be responsible for any loss
occasioned by the failure of the Origination Trustee to return any document or
any delay in doing so.
(d) The Servicer shall be deemed to have received proper instructions with
respect to any Lease Document, Title Document, any other related item or any
Lease Record, upon its receipt of written instructions by a Responsible Officer
of the Origination Trustee.
(e) The Servicer shall identify from time to time all (i) periodic sales
and use tax or property (real or personal) tax reports, (ii) periodic renewals
of licenses and permits, (iii)
18
periodic renewals of qualification to act as a trust and a business trust and
(iv) other periodic governmental filing, registration or approvals
(collectively, "Filings") arising with respect to or required of the
-------
Origination Trustee or the Origination Trust, including (in the case of clauses
-------
(ii) and (iv)) such licenses, permits, and other Filings as are required for the
---- ----
Origination Trust to accept assignments of Leases and to be identified as the
owner of Leased Vehicles on their Certificates of Title, as contemplated by
Section 2.1(a) (i). The Servicer shall also identify any surety bonds or other
------------------
ancillary undertakings required of the Origination Trust or the Origination
Trustee in respect of any Filing. The Servicer shall timely prepare and file, or
cause to be filed, with the cooperation of the Origination Trustee, on behalf of
the Origination Trustee, or the Origination Trust with the appropriate Person
each Filing and each such ancillary undertaking with a copy to the Origination
Trustee. In connection with this Section 2.7(e), the Origination Trust grants to
--------------
the Servicer the authority to, and will execute and deliver to the Servicer any
necessary Power of Attorney in the form attached as Exhibit B, as the Servicer
---------
may require in order to, effect each such Filing and ancillary undertaking.
Should the Servicer at any time receive notice, or have actual knowledge, of any
non-compliance with any Filing requirement, it shall promptly so notify the
Origination Trustee, and shall promptly take all required action to rectify such
noncompliance.
(f) The Origination Trust shall deliver to the Servicer, promptly upon
their execution and delivery by the parties thereto, the Origination Trust
Agreement and of each amendment and supplement thereto, including without
limitation any SUBI Supplement. The Servicer shall not act contrary to any
provision of the Origination Trust Agreement, as so amended or supplemented.
(g) The Servicer agrees to indemnify, defend and hold harmless the UTI
Holder (including, if such Person is a partnership, any general partner
thereof), the Origination Trust, the Origination Trustee and their respective
agents (including without limitation any Trust Agent) for (i) any and all
liabilities, losses, damages and expenses that may be incurred as a result of
any act or omission by the Servicer in connection with its maintenance and
custody of the Lease Documents, Title Documents, Lease Records, the servicing of
the Leases, the Servicer's undertakings in clause (e) of this Section 2.7 or any
---------- -----------
other activity undertaken or omitted by the Servicer with respect to any Trust
Asset or this Agreement, and (ii) any Claims that the Trust Assets are
insufficient to satisfy. The obligations set forth in this Section 2.7(g) shall
--------------
survive the termination of this Agreement and the Origination Trust Agreement or
the resignation or removal of the Servicer or the Origination Trustee.
19
Section 2.8. Third Party Claims.
------------------
The Servicer shall promptly notify LP (in the event that the Company is
not acting as the Servicer hereunder) and the Origination Trustee, on behalf of
the Origination Trust, upon its learning that a claim of whatever kind that
would have a material adverse impact on the UTI Holder, the Origination Trustee,
the Origination Trust or any Trust Asset, the Servicer or the Company is being
made by a third party with respect to any Lease or Leased Vehicle or the
servicing thereof or with respect to any other Trust Asset.
Section 2.9. Insurance Policies.
------------------
The Servicer shall at all times (a) maintain or cause to be maintained by
an Affiliate of the Servicer on behalf of the Origination Trust Insurance
Policies (which may be blanket policies covering the Servicer and all Affiliates
thereof) with respect to the Leases, the Leased Vehicles and the Obligors (and
shall cause each such Insurance Policy maintained by it or any of its Affiliates
to name the Origination Trust as an additional insured or loss payee, as
appropriate) of at least the type and in at least the same amount as it
maintains from time to time for its own portfolio of retail closed-end leases
and related leased vehicles, and (b) upon its termination as Servicer as to all
or any part of the Trust Assets either continue such coverage of the Origination
Trust under such Insurance Policies, the premium for which shall constitute an
Origination Trust expense, or provide for equivalent coverage by any substitute
or successor Servicer.
Section 2.10 Servicer Not to Resign; Assignment.
----------------------------------
(a) Except as provided in Section 4.1(b), the Servicer shall not resign
--------------
from the duties and obligations hereby imposed on it as Servicer except upon
determination by its Board of Directors that by reason of change in applicable
legal requirements the continued performance by the Servicer of its duties as
Servicer under this Agreement would cause it to be in violation of such legal
requirements in a manner that would result in a material adverse effect on the
Servicer or its financial condition, said determination to be evidenced by a
Board Resolution to such effect accompanied by an Opinion of Counsel reasonably
satisfactory to the Origination Trustee of independent counsel reasonably
satisfactory to the Origination Trustee, to such effect. No such resignation
shall become effective unless and until a new servicer is willing to service the
Leases and enters into a servicing agreement with the Origination Trust, such
agreement to have substantially the same provisions as this Agreement. The
Origination Trust shall not unreasonably fail to consent to such a servicing
agreement.
20
(b) The Servicer may not assign this Agreement or any of its rights,
powers, duties or obligations hereunder; provided, however, that the Servicer
-------- -------
may assign this Agreement in connection with a consolidation, merger,
conveyance, transfer or lease made in compliance with Section 2.13.
------------
(c) Except as provided in paragraphs (a) and (b) above, the duties and
-------------- ---
obligations of the Servicer under this Agreement shall continue until this
Agreement shall have been terminated as provided in Section 6.1 and shall
-----------
survive the exercise by the Origination Trustee, on behalf of the Origination
Trust, of any right or remedy under this Agreement or the enforcement by the
Origination Trustee, on behalf of the Origination Trust, of any provision of the
Origination Trust Documents.
Section 2.11. Obligor Insurance Coverage in Respect of Leased Vehicles.
---------------------------------------------------------
The Servicer shall use its commercially reasonable efforts to ensure that
the Obligor under each Lease shall have, and maintain in full force and effect
during the term of such Lease, a comprehensive, collision and property damage
insurance policy covering the actual cash value of the Leased Vehicle to which
such Lease relates and naming the Origination Trust or the Servicer as a loss
payee, as well as public liability, bodily injury and property damage coverage
equal to the greater of the amounts required by applicable state law or industry
standards as set forth in the Lease, and naming the Origination Trust as an
additional insured. The Servicer shall, on at least a monthly basis, remit any
proceeds of such Insurance Policy that the Servicer may receive with respect to
a Leased Vehicle in accordance herewith.
In the event that at any time any proceeds of such insurance policy would
be recoverable and otherwise paid to the Obligee as loss payee but for the fact
that: (a) such insurance policy has lapsed (without the obtaining by the related
Obligor (or the Servicer, on behalf of such Obligor) of a new insurance policy
meeting the requirements of the immediately preceding sentence); (b) the
Servicer has failed to maintain the Origination Trust's rights to receive all
proceeds of such insurance policy up to the full amount of the Obligor's
obligations under the related Lease (but not exceeding the policy limits); or
(c) such insurance policy has not been maintained in full force and effect prior
to the Maturity Date of such Lease, the Servicer shall, as soon as reasonably
practicable, remit an amount of cash equal to such amounts as would at such time
otherwise be recoverable in respect of such Leased Vehicle as Insurance
Proceeds. The foregoing obligation of the Servicer shall survive the resignation
of the Servicer or any termination of it as Servicer under this Agreement
pursuant to Section 4.1(b) hereof.
--------------
21
Section 2.12. Certificates of Title.
---------------------
In connection with the filing of applications for Certificates of Title to
the Leased Vehicles, the Servicer shall arrange for the new Certificate of Title
identifying the Origination Trust, or its nominee, as the owner of each Leased
Vehicle, to be issued by the appropriate Registrar of Titles and to be delivered
to the Servicer to be held by the Servicer, as agent and bailee on behalf of the
Origination Trust.
Section 2.13. Corporate Existence; Status; Merger.
-----------------------------------
(a) The Servicer shall keep in full effect its existence, rights and
franchises as a Delaware corporation and will obtain and preserve its
qualification to do business as a foreign corporation in each jurisdiction in
which such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the failure to so
qualify would not have a material adverse effect on the condition, financial or
otherwise, or the earnings, business affairs or business prospects of the
Servicer and its subsidiaries considered as one enterprise, and in each
jurisdiction in which such qualification is or shall be necessary to protect the
validity and enforceability of, or to permit the Servicer to perform its
obligations under, the Origination Trust Documents.
(b) The Servicer shall not consolidate with or merge into any other
corporation or convey, transfer or lease all or substantially all of its assets
as an entirety to any Person without the prior written consent of the
Origination Trustee, on behalf of the Origination Trust, unless (i) the
corporation formed by such consolidation or into which the Servicer has merged
or the Person which acquires by conveyance, transfer or lease all or
substantially all the assets of the Servicer as an entirety is (A) a citizen of
or an entity organized and existing under the laws of the United States or any
State and (B) either executes and delivers to the Origination Trustee, on behalf
of the Origination Trust, an agreement in form and substance reasonably
satisfactory to the Origination Trustee, that contains an assumption by such
successor entity of the due and punctual performance and observance of each
covenant and condition to be performed or observed by the Servicer under this
Agreement and the other Origination Trust Documents or is so bound by operation
of law, or (ii) the Servicer is the surviving corporation resulting from such
consolidation or merger.
22
ARTICLE III
STATEMENTS AND REPORTS
Section 3.1. Reporting by the Servicer.
-------------------------
On or prior to the fifteenth (15th) day of each calendar month, the
Servicer shall (a) cause to be delivered to the Origination Trust a revised
Schedule of Leases and Leased Vehicles, containing data as of the last day of
the prior calendar month, and (b) cause to be delivered to the Origination Trust
a report in respect of the prior calendar month, setting forth (i) any
information relating to the Leases or the Leased Vehicles that normally would be
available from a servicer of closed-end automobile and sports utility vehicle
leases and as required, any additional information required by the terms of any
Securitized Financing.
Section 3.2 Annual Officer's Certificate.
----------------------------
Within 120 days after December 31 of each calendar year, the Servicer
shall deliver an Officer's Certificate to the Origination Trust to the effect
that a review of the activities of the Servicer during the prior calendar year
(or since the commencement of the Origination Trust in the case of the first
such Officer's Certificate) has been made under the supervision of the officer
executing such Officer's Certificate with a view to determining whether during
such period the Servicer has performed and observed all of its obligations under
this Agreement, and either (i) stating that, to the best of his or her
knowledge, no default by the Servicer under this Agreement has occurred and is
continuing, or (ii) if such a default has occurred and is continuing, specifying
such default and the nature and status thereof.
ARTICLE IV
DEFAULT
Section 4.1 Events of Default; Termination of Servicer.
------------------------------------------
(a) Any of the following acts or occurrences shall constitute an Event of
Default under this Agreement:
(i) The Servicer shall have failed to deposit or transfer any amounts in
excess of $500,000 in the aggregate at any time outstanding that are required to
be deposited or transferred pursuant to Section 2.2 hereof, which failure
-----------
continues for five (5) Business Days after the earlier of the discovery of such
failure by an officer of the Servicer
23
or receipt by the Servicer of written notice thereof from the Origination
Trustee or any holder or pledgee of a UTI Certificate or SUBI Certificate;
(ii) The Origination Trustee shall not have received any report required
to be delivered pursuant to Section 3.1 hereof within ten (10) Business Days
-----------
after the date any such report is due;
(iii) The Servicer shall default in the due performance and observance of
any other provision of this Agreement, which default materially and adversely
affects the rights of the Origination Trust or any beneficial assignee or
pledgee of a UTI Certificate or a SUBI Certificate, and such default shall have
continued for a period of 60 days after written notice thereof shall have been
given to the Servicer by the Origination Trustee;
(iv) The entry of a decree or order for relief by a court or regulatory
authority having jurisdiction over the Servicer in an involuntary case under the
federal bankruptcy laws, as now or hereafter in effect, or another present or
future federal or State bankruptcy, insolvency or similar law, or appointing a
receiver, liquidator, assignee, trustee, custodian, sequestrator or other
similar official of the Servicer or of any substantial part of its property, or
ordering the winding up or liquidation of the affairs of the Servicer and the
continuance of any such decree or order unstayed and in effect for a period of
90 consecutive days;
(v) The commencement by the Servicer of a voluntary case under the federal
bankruptcy laws, as now or hereafter in effect, or any other present or future
federal or State bankruptcy, insolvency or similar law, or the consent by the
Servicer to the appointment of or taking possession by a receiver, liquidator,
assignee, trustee, custodian, sequestrator or other similar official of the
Servicer or of any substantial part of its property or the making by the
Servicer of an assignment for the benefit of creditors or the failure by the
Servicer generally to pay its debts as such debts become due or the taking of
corporate action by the Servicer in furtherance of any of the foregoing; or
(vi) Any representation, warranty or statement of the Servicer made in
this Agreement or any other Origination Trust Document to which it is a party or
by which it is bound or any certificate, report or other writing delivered
pursuant hereto shall prove to be incorrect in any material respect as of the
time when the same shall have been made and, within 60 days after written notice
thereof shall have been given to the Servicer by the Origination Trustee, on
24
behalf of the Origination Trust, or any holder or pledgee of a UTI
Certificate or SUBI Certificate, the circumstance or condition in respect
of which such representation, warranty or statement was incorrect shall not
have been eliminated or otherwise cured.
The Origination Trustee shall give to the Servicer notice of a violation of
clauses (iii) or (vi) above promptly upon a Responsible Officer of the
------------- ----
Origination Trustee becoming actually aware of any such default by the Servicer.
Notwithstanding the foregoing, a delay or failure in the performance
referred to under clause (i) above for a period of ten (10) Business Days, or
----------
referred to in clause (ii) above for a period of twenty (20) Business Days, or
-----------
referred to in clause (iii) for a period of ninety (90) days, or referred to in
------------
clause (vi) for a period of sixty (60) days, shall not constitute an Event of
-----------
Default if arising from a Force Majeure. Upon the occurrence of a Force Majeure,
the Servicer shall not be relieved from using all commercially reasonable
efforts to perform its obligations in a timely manner, and the Servicer shall
provide to the Origination Trustee and any applicable Special Purpose Affiliate
prompt notice of such failure or delay, together with a description of its
efforts to perform its obligations.
(b) If an Event of Default shall have occurred and be continuing, the
Origination Trust may remedy such Event of Default, or the Origination Trust,
upon the direction of the Beneficiary or any pledgee of a UTI Pledge shall, by
notice given to the Servicer, terminate all or a portion of the rights and
powers of the Servicer under this Agreement, including all or a portion of the
rights of the Servicer to receive the servicing compensation provided for in
Section 2.5 hereof with respect to all periods following such termination;
-----------
provided, however that in no event shall the rights and powers of the Servicer
-------- -------
be terminated until such time as the Origination Trust shall have appointed a
successor servicer in the manner set forth below. Upon any such termination, all
rights, powers, duties and responsibilities of the Servicer under this
Agreement, whether with respect to the related Lease Documents, the related
Title Documents or Lease Records, the Servicing Fee or otherwise, so terminated
shall vest in and be assumed by any successor servicer appointed by the
Origination Trust pursuant to a servicing agreement with the Origination Trust,
containing substantially the same provisions as this Agreement (including with
respect to the compensation of such successor servicer), and the successor
servicer is hereby irrevocably authorized and empowered to execute and deliver,
on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and
other instruments (including any notices to Obligors deemed necessary or
advisable by the Origination Trustee), and to do or accomplish all other acts or
25
things necessary or appropriate to effect such vesting and assumption,
including, without limitation, directing some or all of the Obligors to remit
Monthly Lease Payments, Prepayments and all other payments on or in respect of
the Leases and the Leased Vehicles to an account or address designated by or
such new servicer. Further, in such event, the Servicer shall use its
commercially reasonable efforts to effect the orderly and efficient transfer of
the servicing of the affected Leases to the new servicer (including transfer of
the Security Deposits being held by the Servicer pursuant to Section 2.4), and
------------
as promptly as practicable, the Servicer shall provide to the new servicer a
current computer tape containing all information from the Lease Records required
for the proper servicing of the affected Leases, together with documentation
containing any and all information necessary for use of the tape.
In the event of the partial termination of some but not all of the
Servicer's rights and powers hereunder by the Origination Trust, the Servicer
(unless otherwise directed by the Origination Trustee) shall continue to
service, administer and collect those Leases in unaffected Portfolios and shall
have the right to receive servicing compensation in accordance with Section 2.5
-----------
based upon the Outstanding Lease Balance of all Leases in such Portfolios,
provided, however, that if the Servicer is terminated with respect to the
-------- -------
Portfolio of unallocated Leases and Leased Vehicles indirectly supporting any
Securitization Financing secured by a UTI Pledge, it may resign as Servicer as
to all Trust Assets; provided that a successor servicer has been appointed
--------
hereunder.
(c) The Origination Trust shall upon the written direction of (i) if there
is a UTI Pledge, the pledgee thereof or, if not, the UTI Holder, or (ii) the
holder of the requisite percentage of any SUBI (as set forth in the applicable
SUBI Supplement), waive any default by the Servicer in the performance of its
obligations hereunder and its consequences or, if an Event of Default has
occurred and is continuing, appoint a successor Servicer (x) with regard to the
Portfolio containing those Trust Assets constituting a borrowing base with
respect to the UTI Pledge, or, if there is no UTI Pledge, constituting UTI
Assets, or (y) the SUBI Portfolio related to such SUBI, as the case may be. Upon
any such waiver of a past default, such default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been remedied for
every purpose of this Agreement. No such waiver shall extend to any subsequent
or other default or impair any right consequent thereon.
26
ARTICLE V
MISCELLANEOUS
Section 5.1. Termination of Agreement.
------------------------
This Agreement shall, except as otherwise provided herein, terminate upon
the earliest of (a) the termination of the Origination Trust; (b) the discharge
of the Servicer in accordance with the terms hereof; or (c) the mutual written
determination of the parties hereto. Upon termination of this Agreement, the
Servicer shall pay over to the Origination Trust, or any other Person entitled
thereto, all monies held by the Servicer on behalf of the Origination Trust
pursuant to this Agreement.
Section 5.2 Amendment.
---------
(a) This Agreement may be amended from time to time in a writing signed by
the Origination Trustee, on behalf of the Origination Trust, and the Servicer.
(b) In particular, but without limiting the foregoing, this Agreement may
be amended by means of one or more SUBI Servicing Agreement Supplements in
connection with any Securitized Financings. Such supplemental agreements may
provide, among other things, for further specific servicing obligations relating
to SUBI Assets for the particular benefit of holders of related SUBIs. Such
supplemental agreements may permit the termination of this Agreement insofar as
it applies to such SUBI Assets upon the terms and conditions set forth therein;
however, no such supplemental agreement shall permit the termination of this
Agreement insofar as it applies to other Trust Assets except as provided herein.
(c) Any amendment or modification effected contrary to the provisions of
this Section shall be void.
Section 5.3. Governing Law.
-------------
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO ANY OTHERWISE APPLICABLE
PRINCIPLES OF CONFLICT OF LAWS.
Section 5.4. Notices.
-------
All demands, notices and communications hereunder shall be in writing and
shall be delivered or mailed by registered or certified first-class United
States mail, postage prepaid, hand delivery, any prepaid courier service, or by
telecopier, and addressed in each case as follows: (a) if to the Company or the
Servicer (if the same as the Company), at ▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇,
▇▇
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (telecopier no. (614)
771-4574); and (b) if to the Origination Trust, at c/o Chemical Bank Delaware,
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇. Attention: Corporate Trust
Department, (Telecopier No. (▇▇▇) ▇▇▇-▇▇▇▇). The Company, the Servicer or the
Origination Trustee may change its address for notices hereunder by giving
notice of such change to the other such Persons. All notices and demands shall
be deemed to have been given upon delivery or tender of delivery thereof to any
officer of the Person entitled to receive such notices and demands at the
address of such Person for notices hereunder.
Section 5.5. Severability.
------------
If one or more of the provisions of this Agreement shall be for any reason
whatever held invalid or unenforceable, such provisions shall be deemed
severable from the remaining covenants, agreements and provisions of this
Agreement, and such invalidity or unenforceability shall in no way affect the
validity or enforceability of such remaining covenants, agreements and
provisions, or the rights of any parties hereto. To the extent permitted by law,
the parties hereto waive any provision of law that renders any provision of this
Agreement invalid or unenforceable in any respect.
Section 5.6. Inspection and Audit Rights.
---------------------------
The Servicer agrees that, on reasonable prior notice, it will permit any
representative, agent or designee of the Origination Trust, during the normal
business hours of the Servicer, to examine all books of account, records,
reports and other papers of the Servicer relating to the Trust Assets, to make
copies and extracts therefrom, to cause such books to be audited by independent
accountants selected by the Origination Trustee, and to discuss the affairs,
finances and accounts relating to the Trust Assets with its officers, employees
and independent accountants (and by this provision the Servicer hereby
authorizes such independent accountants to discuss with such representatives
such affairs, finances and accounts), all at such reasonable times and as often
as may be reasonably requested. Such rights shall include, but shall not be
limited to, any off-site storage facilities at which any data (including,
without limitation, computerized records), together with all operating software
and appropriate documentation, may be held. The Origination Trust agrees to keep
confidential all the confidential information of the Servicer acquired during
any such examination as if such information were its own confidential
information, except to the extent necessary for the purposes of this Agreement.
28
Section 5.7. Binding Effect.
--------------
The provisions of this Agreement shall be binding upon and inure to the
benefit of the respective successors and permitted assigns of the parties
hereto, and all such provisions shall inure to the benefit of the Origination
Trust.
Section 5.8. Article and Section Headings.
----------------------------
The article and section headings herein are for convenience of reference
only, and shall not limit or otherwise affect the meaning hereof.
Section 5.9. Execution in Counterparts.
-------------------------
This Agreement may be executed in any number of counterparts, each of which
so executed and delivered shall be deemed to be an original, but all of which
counterparts shall together constitute but one and the same instrument.
Section 5.10. Rights Cumulative.
-----------------
All rights and remedies from time to time conferred upon or reserved to the
Origination Trust, the Origination Trustee, on behalf of the Origination Trust,
the Company or the Servicer or to any or all of the foregoing are cumulative,
and none is intended to be exclusive of another. No delay or omission in
insisting upon the strict observance or performance of any provision of this
Agreement, or in exercising any right or remedy, shall be construed as a waiver
or relinquishment of such provision, nor shall it impair such right or remedy.
Every right and remedy may be exercised from time to time and as often as deemed
expedient.
Section 5.11. Further Assurances.
------------------
Each party will do such acts, and execute and deliver to any other party
such additional documents or instruments as may be reasonably requested in order
to effect the purposes of this Agreement and to better assure and confirm unto
the requesting party its rights, powers and remedies hereunder.
Section 5.12. Third-Party Beneficiaries.
-------------------------
This Agreement will inure to the benefit of and be binding upon the parties
hereto and each of the beneficiaries of the Origination Trust (and each pledgee
of a UTI Pledge and any Person for whose benefit such pledgee holds such UTI
Pledge), who shall be considered to be third-party beneficiaries hereof. Except
as otherwise provided in this Agreement, no other Person will have any right or
obligation hereunder.
29
Section 5.13. No Waiver.
---------
No waiver by any party hereto of any one or more defaults by any other party
or parties in the performance of any of the provisions of this Agreement shall
operate or be construed as a waiver of any future default or defaults, whether
of a like or different nature. No failure or delay on the part of any party in
exercising any right, power or remedy hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or
remedy preclude any other or further exercise thereof or the exercise of any
other right, power or remedy. The remedies provided for herein are cumulative
and are not exclusive of any remedies that may be available to any party hereto
at law, in equity or otherwise.
Section 5.14. Non-Petition Covenant.
---------------------
The Servicer covenants and agrees that prior to the date which is one year
and one day after the date upon which all obligations under each Securitized
Financing has been paid in full, the Servicer will not institute against, or
join any other person in instituting against LP, the Origination Trust, any
Special Purpose Affiliate, or any general partner of a Special Purpose
Affiliate that is a partnership, any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceeding or other proceedings under any federal or
state bankruptcy or similar law. This Section shall survive the termination of
this Agreement or the resignation or removal of the Servicer under this
Agreement.
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30
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective officers duly authorized as of the Day and
year first above written.
BMW FINANCIAL SERVICES, NA, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------
Title: Treasurer
---------------------------
FINANCIAL SERVICES VEHICLE TRUST
By: CHEMICAL BANK DELAWARE,
as trustee
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Trust Officer
BMW MANUFACTURING L.P.
By: BMW FACILITY PARTNERS, INC.,
its general partner
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
------------------------
Title: President
-----------------------
S-1
EXHIBIT A
TO
SERVICING AGREEMENT
POWER OF ATTORNEY PURSUANT TO SECTION 2.6 OF SERVICE AGREEMENT
--------------------------------------------------------------
KNOW ALL PERSONS BY THESE PRESENTS, that FINANCIAL SERVICES VEHICLE TRUST
("Grantor"), a Delaware business trust located at c/o Chemical Bank Delaware,
-------
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, does hereby appoint BMW
FINANCIAL SERVICES NA, INC. ("Grantee"), a Delaware corporation located at 800
-------
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, as its attorney-in-fact,
with full power of substitution, and hereby authorizes and empowers Grantee, in
the name of and on behalf of Grantor, to take the following actions from time to
time with respect to the motor vehicles referred to in the Servicing Agreement
dated as of August 30, 1995 between Grantor and Grantee as "Leased Vehicles" and
described in the currently-effective "Schedule of Leases and Leased Vehicles",
as defined therein (such motor vehicles, the "Motor Vehicles"), a copy of which
"Schedule of Leases and Leased Vehicles" is maintained by the Grantee and that
is incorporated herein by this reference, for the purpose of enabling Grantee in
the name of the Grantor to transfer, liquidate or dispose of the Motor Vehicles,
upon such terms and conditions as Grantee deems advisable, namely:
1. Sign Grantor's name to any certificates of title, assignments of
title, transfers of title or registration, or applications for title or
registration, or applications for transfer of title or registration, or similar
forms, with respect to any of the Motor Vehicles; and
2. Execute and deliver any and all instruments and take any and all
further action in the name of and on behalf of Grantor as may be required or
deemed desirable to accomplish any and all of the foregoing and carry out the
purposes of this Power of Attorney.
Grantee is hereby empowered to do any and all lawful acts requisite for
effecting the transfer of the Motor Vehicles and Grantor hereby ratifies and
confirms any and all lawful acts that Grantee shall do pursuant to and in
conformity with this Power of Attorney.
This Power of Attorney is revocable upon notice by Grantor, and if not
earlier revoked shall expire upon the earlier of (a) the termination of that
certain Trust Agreement dated as of August 30, 1995, by and among BMW
MANUFACTURING L.P., and
A-1
CHEMICAL BANK DELAWARE, and (b) the termination of that certain Servicing
Agreement dated as of August 30, 1995, by and between Grantor and Grantee, as
each is amended from time to time.
Grantor executes this power of attorney with the intent to be legally bound
hereby, and with the intent that the execution shall have the full dignity
afforded by the accompanying witnessing and notarization and all lesser dignity
resulting from the absence of such witnessing and notarization or any
combination thereof.
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A-2
Dated this _______ day of ________________, 199_.
FINANCIAL SERVICES VEHICLE TRUST
By: CHEMICAL BANK DELAWARE,
as trustee
By:____________________
Name:__________________
Title:_________________
[CORPORATE SEAL]
Address: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Signed, sealed and delivered
in the presence of:
____________________________
(Unofficial Witness)
A-3
STATE OF )
--------------
)
COUNTY OF )
--------------
I, the undersigned, a Notary Public in and for said County, in said State,
hereby certify that ▇▇▇▇ ▇. ▇▇▇▇▇▇, whose name as Senior Trust Officer of
CHEMICAL BANK DELAWARE, a Delaware banking corporation, is signed to the
foregoing instrument, and who is known to me, acknowledged before me on this
day, that, being informed of the contents thereof, he, as such officer and with
full authority, executed the same voluntarily for and as the act of said entity.
Given under my hand and official seal, this day of , 199 .
--- ------------ -
(SEAL)
------------------------------
NOTARY PUBLIC
My Commission Expires:
-------
A-4
EXHIBIT B
TO
SERVICING AGREEMENT
POWER OF ATTORNEY PURSUANT TO SECTION 2.7(e) OF
SERVICING AGREEMENT
-------------------
KNOW ALL PERSONS BY THESE PRESENTS, that FINANCIAL SERVICES VEHICLE TRUST
("Grantor"), a business trust formed under the laws of the State of Delaware,
-------
does hereby appoint BMW FINANCIAL SERVICES NA, INC. ("Grantee"), a Delaware
-------
corporation located at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇,
as its attorney-in-fact, with full power of substitution, and hereby authorizes
and empowers Grantee, in the name of and on behalf of Grantor, to take the
following actions from time to time with respect to certain filings referred to
in the Servicing Agreement dated as of August 30, 1995 between Grantor and
Grantee, for the purposes of enabling Grantee in the name of the Grantor to
1. Sign Grantor's name to any (i) periodic sales and use or property
(real or personal) tax reports, (ii) periodic renewals of licenses and permits,
(iii) periodic renewals of qualification to act as a trust and a business trust,
or (iv) other periodic governmental filing, registration or approvals
(collectively, "Filings"), arising with respect to or required of the Grantor or
-------
the Origination Trustee; and
2. Identify any surety bonds or other ancillary undertakings required of
the Grantor or the Origination Trustee in respect of any Filing, execute and
deliver any and all instruments and take any and all further action in the name
of and on behalf of Grantor as may be required or deemed desirable to accomplish
any and all of the foregoing and carry out the purposes of this Power Of
Attorney.
Grantee is hereby empowered to do any and all lawful acts requisite for
effecting such Filings and the payment of such fees, costs and taxes as
necessary to complete these actions, and Grantor hereby ratifies and confirms
any and all lawful acts that Grantee shall do pursuant to and in conformity with
this Power of Attorney.
This Power of Attorney is revocable upon notice by Grantor, and if not
earlier revoked shall expire upon the earlier of (a) the termination of that
certain Trust Agreement dated as of August 30, 1995, by and among BMW
MANUFACTURING L.P. and CHEMICAL BANK DELAWARE, and (b) the termination of that
certain Servicing Agreement dated as of August 30, 1995, by and between Grantor
and Grantee.
B-1
Grantor executes this power of attorney with the intent to be legally bound
hereby, and with the intent that the execution shall have the full dignity
afforded by the accompanying witnessing and notarization and all lesser dignity
resulting from the absence of such witnessing and notarization or any
combination thereof.
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B-2
Dated this day of , 199 .
------- ------------- --
FINANCIAL SERVICES VEHICLE TRUST
By: CHEMICAL BANK DELAWARE,
as trustee
By:_____________________
Name:___________________
Title:__________________
[CORPORATE SEAL]
Address: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Signed, sealed and delivered
in the presence of:
----------------------------
(Unofficial Witness)
B-3
STATE OF ______________)
)
COUNTY OF______________)
I, the undersigned, a Notary Public in and for said County, in said State,
hereby certify that ▇▇▇▇ ▇. ▇▇▇▇▇▇, whose name as Senior Trust Officer of
CHEMICAL BANK DELAWARE, a Delaware banking corporation, is signed to the
foregoing instrument, and who is known to me, acknowledged before me on this
day, that, being informed of the contents thereof, he, as such officer and with
full authority, executed the same voluntarily for and as the act of said entity.
Given under my hand and official seal, this ___ day of ____________, 199_.
(SEAL) ______________________________
NOTARY PUBLIC
My Commission Expires: _______
B-4
