Common use of Purpose of Company Clause in Contracts

Purpose of Company. (a) The nature of the business or purposes to be conducted or promoted by the Company is to engage solely in the following activities: (i) to acquire from time to time all right, title and interest in and to receivables or leases arising out of or relating to the financing, sale or lease of new or used motor vehicles or industrial equipment, including automobiles, sports utility vehicles, light and heavy duty trucks, motorcycles and recreational vehicles, monies due thereunder, security interests in the motor vehicles or equipment financed thereby, proceeds from claims on insurance policies related thereto, and related rights (collectively, “Receivables”); (ii) to acquire, own, hold, service, sell, assign, pledge and otherwise deal with the Receivables, collateral securing the Receivables, related insurance policies, agreements with motor vehicle or equipment dealers or lessors or other obligors, originators or servicers of Receivables and any proceeds or further rights associated with any of the foregoing; (iii) to transfer Receivables and Securities to corporations, trusts (the “Trusts”) or other entities, including without limitation corporations, trusts or other entities formed by BMW FS or Receivables Corp. (each a “Transferee”), pursuant to one or more receivables purchase agreements, pooling and servicing agreements, sale and servicing agreements or other agreements (the “Agreements”) to be entered into by and among, among others, the Company, the Transferee named therein and any entity acting as collection agent or servicer of the Receivables; (iv) to sell Receivables to, or to finance ownership of Receivables through, one or more Transferees established to fund the transfer of Receivables through the issuance of commercial paper notes (such Transferee’s commercial paper notes issued to fund such Receivables, the “Commercial Paper”) pursuant to one or more Agreements to be entered into by and among, among others, the Company, such Transferee and any entity acting as collection agent or servicer of the Receivables; (v) to issue, authorize, sell and deliver, or cause the issuance, authorization, sale and delivery of, one or more series and classes of bonds, notes or other evidence of indebtedness secured or collateralized by one or more pools of Receivables or by certificates of any class or other interests issued by one or more Trusts or other Transferees owning, directly or indirectly, Receivables, including without limitation special units of beneficial interest and other securities representing interests in Receivables (collectively, the “Securities”), under the related Agreements, or under any indenture or other agreement pursuant to which any Securities are issued (each, an “Indenture”); (vi) to acquire, own, hold, sell, assign, pledge and otherwise deal with the Securities, and to enjoy all of the rights and privileges of any Securities; (vii) to perform its obligations under the Agreements and any Indenture; and (viii) to transact any and all lawful business that is reasonably necessary, appropriate, proper, advisable, related, incidental or convenient to the conduct, promotion or attainment or for the furtherance of the purposes, activities and businesses described in this Section 2.6(a) and for the protection of the Company. In furtherance of such purposes, the Company shall have the power, and is hereby authorized to buy and sell Receivables and Securities. (b) Notwithstanding any other provision of this LLC Agreement to the contrary, and any provision of law that otherwise so empowers the Company, the Company shall not do any of the following: (i) own any asset or property other than (A) the Receivables and Securities, and (B) incidental personal and intangible property relating to the ownership of the Receivables and Securities; (ii) engage in any business other than those set forth in subsection (a) above; (iii) enter into any contract or agreement with any Affiliate of the Company, any constituent party of the Company, or any Affiliate of any constituent party, except in the ordinary course of business and upon terms and conditions that are substantially similar to those that would be available on an arms-length basis with third parties; (iv) incur any indebtedness, or assume or guarantee any indebtedness of any other entity, secured or unsecured, direct or indirect, absolute or contingent other than (A) any indebtedness incurred in connection with any Commercial Paper or Securities, and (B) any indebtedness to BMW FS or any Affiliate thereof incurred in connection with the acquisition of Receivables, which indebtedness shall be subordinated to all other obligations of the Company and shall be nonrecourse debt of the Company, except with respect to proceeds of the Receivables in excess of such proceeds necessary to pay all obligations in relation to the Commercial Paper or Securities (“Excess Proceeds”), and shall not constitute a claim against the Company to the extent that Excess Proceeds are insufficient to pay such indebtedness (provided that such indebtedness is also expressly authorized by the Special Member, including all of its Independent Directors), or endeavor to obtain credit or incur any other obligations (other than with respect to Receivables) to any Person based on the assets of any Person other than itself or pledge its assets for the benefit of any other Person; or fail to correct promptly any known misunderstanding with respect to the foregoing; (v) become insolvent or not pay its debts and liabilities (including operating expenses, employment and overhead expenses) from its assets as the same shall become due; (vi) fail to do or cause to be done all things necessary to observe organizational formalities and preserve its existence, or amend, modify, or otherwise change the organizational documents of the Company without the prior written authorization of all its Members, including that of all the Independent Directors of the Special Member; (vii) fail to maintain all of its company records and financial records distinct and separately identifiable from those of its Affiliates and any other Person; (viii) fail to prepare separate financial statements of the Company; provided that, in lieu of separate financial statements, the Company’s financial position, assets, liabilities, net worth and operating results may be included in the consolidated financial statements of the Company or an Affiliate if appropriate notation is made on such consolidated financial statements indicating (1) the separate identity of the Company from the Member or such other Affiliate and (2) that the Company’s assets and credit are not available to satisfy the debts and other obligations of the Member and such other Affiliate; (ix) fail to file its own tax returns, if any, as may be required under applicable law, to the extent not part of a consolidated group of another taxpayer; (x) fail to hold itself out to the public as a legal entity separate and distinct from any other Person (including any of its Affiliates, any of its constituent parties, or any Affiliate of any constituent party), fail to conduct business in its own name or fail to maintain and utilize separate invoices and checks; (xi) fail to maintain adequate capital, taking into account anticipated excess interest income on assets over interest expense in liabilities, in light of its contemplated business purpose; (xii) commingle or pool Company funds and assets with those of any other Person; (xiii) fail to maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any Affiliate or constituent party or any Affiliate of any constituent party or any other Person; (xiv) hold itself out to be responsible for or guaranty the debts or obligations of any other Person; (xv) seek to merge into or consolidate with any Person or to the fullest extent permitted by law, subject to Section 9.1 hereof, dissolve (in whole or in part), wind up (in whole or in part), terminate, convert to a different form of business association (or otherwise change its legal structure) including, but not limited to, transfer of the limited liability company interests of any Member, in whole or in part, or liquidate (in whole or in part), transfer or otherwise dispose of all or substantially all of its assets, unless: (A) the entity (if other than the Company) formed or surviving the consolidation or merger or which acquires the properties and assets of the Company is organized and existing under the laws of the State of Delaware, expressly assumes the due and punctual payment of, and all obligations of the Company, including those obligations of the Company under any Agreement and any Indenture, and has a certificate of incorporation, limited liability company agreement or other controlling document containing provisions identical to the provision of this Section 2.6; and (B) immediately after giving effect to the transaction, no default or event of default has occurred and is continuing under any indebtedness of the Company or any agreements relating to such indebtedness; and (C) the entity (if other than the Company) formed or surviving the consolidation or merger or which acquires the properties and assets of the Company agrees that (i) it shall maintain its funds or assets as identifiable and not commingle its funds or assets with those of any direct or ultimate parent of such entity and pay from its assets all obligations and indebtedness of any kind incurred by it, (ii) it shall maintain separate bank accounts, company records and books of account from those of any direct or ultimate parent of such entity and (iii) the business affairs of such entity will be managed by or under the direction of its Board of Directors, Managing Board, Managing Member, or other governing board and it will conduct its business from an office separate from any direct or ultimate parent of such entity; and (D) the organizational and constituent documents and the surviving entity’s organizational documents continue to have provisions identical to the provisions of this Section 2.6; (xvi) to the fullest extent permitted by law, file or consent to the filing of any petition, either voluntary or involuntary, for insolvency, bankruptcy, liquidation, receivership, or reorganization under any laws or regulations, or make an assignment for the benefit of creditors or, except as required by law, admit in writing its inability to pay its debts as they come due, except as contemplated by Section 2.6(d) of this LLC Agreement; (xvii) take any action that could reasonably be expected to cause the Company to be treated as an association taxable as a corporation for federal, state or local tax purposes, or (xviii) fail to fairly allocate and apportion any overhead (including costs of office space, utilities and routine services) or other expenses (including employee salaries and benefits) shared between the Company and any other Person. Failure of the Company to comply with any of the foregoing restrictions shall not affect the status of the Company as a separate legal entity or adversely affect the limited liability of a Member. (c) The Special Member of the Company shall at all times, except as noted hereafter, cause there to be at least one duly appointed director of its Board of Directors who is an independent director (each, an “Independent Director”) who is not (i) a director, officer or employee of any affiliate of the Company; (ii) a person related to any officer or director of any affiliate of the Company; (iii) a holder (directly or indirectly) of more than 10% of any voting securities of any affiliate of the Company; or (iv) a person related to a holder (directly or indirectly) of more than 10% of any voting securities of any affiliate of the Company; and in the event of the death, incapacity, resignation or removal of all Independent Directors, the Board of Directors shall promptly appoint an Independent Director for each Independent Director whose death, incapacity, resignation or removal caused the related vacancy on the Board of Directors, provided, however, that the Board of Directors shall not vote on any matter unless and until at least one Independent Director has been duly appointed to serve on the Board of Directors. (d) Notwithstanding any other provision of this LLC Agreement or the Certificate or of law that otherwise so empowers the Company, the Company shall not, without the unanimous affirmative vote of all of the Members, which vote must include the vote of all of the Independent Directors of the Special Member, take any of the following actions: (i) to the fullest extent permitted by law, the dissolution, winding up, liquidation, consolidation, conversion to another form of business association, or change in the legal structure of the Company including, but not limited to, transfer of the limited liability company interests of any Member in whole or in part, or the merger of the Company; (ii) the engagement by the Company in any business other than as specified in Section 2.6(a); (iii) the amendment or modification of this Section 2.6; (iv) the material amendment or modification of any provision of this LLC Agreement (other than this Section 2.6) or the Certificate; or (v) to the fullest extent permitted by law, institute proceedings to be adjudicated bankrupt or insolvent, or consent to the institution of bankruptcy or insolvency proceedings against it, or file a voluntary bankruptcy petition or any other voluntary petition seeking or consenting to reorganization or relief under any applicable federal or state law relating to bankruptcy, or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of the Company or a substantial part of its property, or make any assignment for the benefit of creditors, or except as required by law, admit in writing its inability to pay its debts generally as they become due, or take Company action in furtherance of any such action; and any purported action of the Company which violates this sentence shall be void and of no force or effect. (e) The Company shall have no liabilities, contingent or otherwise, other than the Permitted Indebtedness.

Purpose of Company. (a) The nature of the business or purposes to be conducted or promoted by the Company is to engage solely in the following activities: (i) to acquire from time to time all right, title and interest in and to receivables or leases arising out of or relating to the financing, sale or lease of new or used motor vehicles or industrial equipment, including automobiles, sports utility vehicles, light and heavy duty trucks, motorcycles and recreational vehicles, monies due thereunder, security interests in the motor vehicles or equipment financed thereby, proceeds from claims on insurance policies related thereto, and related rights (collectively, “Receivables”"RECEIVABLES"); (ii) to acquire, own, hold, service, sell, assign, pledge and otherwise deal with the Receivables, collateral securing the Receivables, related insurance policies, agreements with motor vehicle or equipment dealers or lessors or other obligors, originators or servicers of Receivables and any proceeds or further rights associated with any of the foregoing; (iii) to transfer Receivables and Securities to corporations, trusts (the “Trusts”) or other entities, including without limitation corporations, trusts or other entities formed by BMW FS or Receivables Corp. (each a “Transferee”), pursuant to one or more receivables purchase agreements, pooling and servicing agreements, sale and servicing agreements or other agreements (the “Agreements”) to be entered into by and among, among others, the Company, the Transferee named therein and any entity acting as collection agent or servicer of the Receivables; (iv) to sell Receivables to, or to finance ownership of Receivables through, one or more Transferees established to fund the transfer of Receivables through the issuance of commercial paper notes (such Transferee’s 's commercial paper notes issued to fund such Receivables, the “Commercial Paper”"COMMERCIAL PAPER") pursuant to one or more Agreements to be entered into by and among, among others, the Company, such Transferee and any entity acting as collection agent or servicer of the Receivables; (v) to issue, authorize, sell and deliverdeliver any class of certificates or other securities (collectively, the "CERTIFICATES") issued by a Trust or cause other Transferee under the issuancerelated Agreements; (vi) to acquire from FCC or Receivables Corp. certificates issued by one or more grantor trusts to which FCC or Receivables Corp. transferred Receivables; (vii) to issue, authorizationsell, sale authorize and delivery of, deliver one or more series and classes of bonds, notes or other evidence of indebtedness secured or collateralized by one or more pools of Receivables or by certificates of any class or other interests issued by one or more Trusts trusts or other Transferees owning, directly or indirectly, Receivables, including without limitation special units by certificates of beneficial interest and other securities representing interests in Receivables any class issued by a grantor trust established by FCC (collectively, the “Securities”), under the related Agreements, or under any indenture or other agreement pursuant to which any Securities are issued (each, an “Indenture”"NOTES"); (viviii) to acquire, own, hold, sell, assign, pledge hold and otherwise deal with the Securities, and to enjoy all of the rights and privileges of any SecuritiesCertificates issued by the Trusts to the Company under the related Agreements and to hold and enjoy all of the rights and privileges of any class of any series of Notes or Certificates, including any class of Notes or Certificates which may be subordinate to any other class of Notes or Certificates, respectively; (viiix) to perform its obligations under the Agreements and any Indentureindenture or other agreement (each, an "INDENTURE") pursuant to which any Certificates or Notes are issued; and (viiix) to engage in any activity, to exercise any powers permitted to limited liability companies under the laws of the State of Delaware and to transact any and all lawful business that is reasonably necessary, appropriate, proper, advisable, related, incidental or convenient to the conduct, promotion or attainment or for the furtherance of the purposes, activities and businesses described in this Section 2.6(a) and for the protection of the Company. In furtherance of such purposes, the Company shall have the power, and is hereby authorized to buy and sell Receivables and SecuritiesReceivables. (b) Notwithstanding any other provision of this LLC Agreement to the contrary, and any provision of law that otherwise so empowers the Company, the Company shall not do any of the following: (i) own any asset or property other than (A) the Receivables and SecuritiesReceivables, and (B) incidental personal and intangible property relating to the ownership of the Receivables and SecuritiesReceivables; (ii) engage in any business other than those set forth in subsection (a) above; (iii) enter into any contract or agreement with any Affiliate of the Company, any constituent party of the Company, or any Affiliate of any constituent party, except in the ordinary course of business and upon terms and conditions that are substantially similar to those that would be available on an arms-length basis with third parties; (iv) incur any indebtedness, or assume or guarantee any indebtedness of any other entity, secured or unsecured, direct or indirect, absolute or contingent other than (A) any indebtedness incurred in connection with any Commercial Paper Paper, Certificates or SecuritiesNotes, provided that any such future indebtedness incurred in connection with any Certificates or Notes must be rated in an investment grade ratings category by at least one nationally recognized rating agency and (B) any indebtedness to BMW FS FCC or any Affiliate thereof incurred in connection with the acquisition of Receivables, which indebtedness shall be subordinated to all other obligations of the Company and shall be nonrecourse debt of the Company, except with respect to proceeds of the Receivables in excess of such proceeds necessary to pay all obligations in relation to the Commercial Paper Paper, Certificates or Securities Notes (“Excess Proceeds”"EXCESS PROCEEDS"), and shall not constitute a claim against the Company to the extent that Excess Proceeds are insufficient to pay such indebtedness (provided that such indebtedness is also expressly authorized by the Special [Bankruptcy Member, ,] including all of its Independent Directors), or endeavor to obtain credit or incur any other obligations (other than with respect to Receivables) to any Person based on the assets of any Person other than itself or pledge its assets for the benefit of any other Person; or fail to correct promptly any known misunderstanding with respect to the foregoing; (v) become insolvent or not pay its debts and liabilities (including operating expenses, employment and overhead expenses) from its assets as the same shall become due; (vi) fail to do or cause to be done all things necessary to observe organizational formalities and preserve its existence, or amend, modify, or otherwise change the organizational documents of the Company without the prior written authorization of all its Members, including that of all the Independent Directors of the Special Bankruptcy Member; (vii) fail to maintain all of its company records and financial records distinct and separately identifiable accounts separate from those of its Affiliates and any other Person; (viii) constituent party or fail to prepare separate financial statements of the Company; provided that, in lieu of separate financial statements, the Company’s financial position, assets, liabilities, net worth and operating results may be included in the (even if consolidated financial statements of the Company or an Affiliate if appropriate notation is made on such consolidated financial statements indicating (1are also prepared) the separate identity of the Company from the Member or such other Affiliate audited by independent certified public accountants, and (2) that the Company’s assets and credit are not available to satisfy the debts and other obligations of the Member and such other Affiliate; (ix) fail to file its own tax returns, if any, as may be required under applicable law, returns (except to the extent not part consolidation is required as a matter of a consolidated group of another taxpayerlaw); (xviii) fail to hold itself out to the public as a legal entity separate and distinct from any other Person (including any of its Affiliates, any of its constituent parties, or any Affiliate of any constituent party), fail to conduct business in its own name or fail to maintain and utilize separate telephone numbers, stationery, invoices and checks; (xiix) fail to maintain adequate capital, taking into account anticipated excess interest income on assets over interest expense in liabilities, capital in light of its contemplated business purpose; (xiix) commingle or pool Company funds and assets with those of any other Person; (xiiixi) fail to maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any Affiliate or constituent party or any Affiliate of any constituent party or any other Person; (xivxii) hold itself out to be responsible for or guaranty the debts or obligations of any other Person; (xvxiii) seek to merge into or consolidate with any Person or to the fullest extent permitted by law, subject to Section 9.1 hereof, dissolve (in whole or in part), wind up (in whole or in part), terminate, convert to a different form of business association (or otherwise change its legal structure) including, but not limited to, transfer of the limited liability company membership interests of any Member, in whole or in part, or liquidate (in whole or in part), transfer or otherwise dispose of all or substantially all of its assets, unless: (A) the entity (if other than the Company) formed or surviving the consolidation or merger or which acquires the properties and assets of the Company is organized and existing under the laws of the State of Delaware, expressly assumes the due and punctual payment of, and all obligations of the Company, including those obligations of the Company under any Agreement and any Indenture, and has a certificate of incorporation, limited liability company agreement or other controlling document containing provisions identical to the provision of this Section 2.6; and (B) immediately after giving effect to the transaction, no default or event of default has occurred and is continuing under any 13 Page 9 indebtedness of the Company or any agreements relating to such indebtedness; and (C) the entity (if other than the Company) formed or surviving the consolidation or merger or which acquires the properties and assets of the Company agrees that (i) it shall maintain its funds or assets as identifiable and not commingle its funds or assets with those of any direct or ultimate parent of such entity and pay from its assets all obligations and indebtedness of any kind incurred by it, (ii) it shall maintain separate bank accounts, company records and books of account from those of any direct or ultimate parent of such entity and (iii) the business affairs of such entity will be managed by or under the direction of its Board of Directors, Managing Board, Managing Member, or other governing board and it will conduct its business from an office separate from any direct or ultimate parent of such entity; and (D) the organizational and constituent documents and the surviving entity’s 's organizational documents continue to have provisions identical to the provisions of this Section 2.6; (xvixiv) to the fullest extent permitted by law, file or consent to the filing of any petition, either voluntary or involuntary, for insolvency, bankruptcy, liquidation, receivership, or reorganization under any laws or regulations, or make an assignment for the benefit of creditors or, except as required by law, admit in writing its inability to pay its debts as they come due, except as contemplated by Section 2.6(d) of this LLC Agreement; (xviixv) share any common logo with or hold itself out as or be considered as a department or division of any Member, or any other Person; (xvi) take any action that could reasonably be expected to cause the Company to be treated as an association taxable as a corporation for federal, state or local tax purposes, or (xviiixvii) fail to fairly allocate and apportion any overhead (including costs of office space, utilities and routine services) or other expenses (including employee salaries and benefits) shared between the Company and any other Person. Failure of the Company to comply with any of the foregoing restrictions shall not affect the status of the Company as a separate legal entity or adversely affect the limited liability of a Member. (c) The Special Member of the Company shall at all times, except as noted hereafter, cause there to be at least one duly appointed director of its Board of Directors who is an independent director (each, an “Independent Director”) who is not (i) a director, officer or employee of any affiliate of the Company; (ii) a person related to any officer or director of any affiliate of the Company; (iii) a holder (directly or indirectly) of more than 10% of any voting securities of any affiliate of the Company; or (iv) a person related to a holder (directly or indirectly) of more than 10% of any voting securities of any affiliate of the Company; and in the event of the death, incapacity, resignation or removal of all Independent Directors, the Board of Directors shall promptly appoint an Independent Director for each Independent Director whose death, incapacity, resignation or removal caused the related vacancy on the Board of Directors, provided, however, that the Board of Directors shall not vote on any matter unless and until at least one Independent Director has been duly appointed to serve on the Board of Directors. (d) Notwithstanding any other provision of this LLC Agreement or the Certificate or of law that otherwise so empowers the Company, the Company shall not, without the unanimous affirmative vote of all of the Members, which vote must include the vote of all of the Independent Directors of the Special Member, take any of the following actions: (i) to the fullest extent permitted by law, the dissolution, winding up, liquidation, consolidation, conversion to another form of business association, or change in the legal structure of the Company including, but not limited to, transfer of the limited liability company interests of any Member in whole or in part, or the merger of the Company; (ii) the engagement by the Company in any business other than as specified in Section 2.6(a); (iii) the amendment or modification of this Section 2.6; (iv) the material amendment or modification of any provision of this LLC Agreement (other than this Section 2.6) or the Certificate; or (v) to the fullest extent permitted by law, institute proceedings to be adjudicated bankrupt or insolvent, or consent to the institution of bankruptcy or insolvency proceedings against it, or file a voluntary bankruptcy petition or any other voluntary petition seeking or consenting to reorganization or relief under any applicable federal or state law relating to bankruptcy, or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of the Company or a substantial part of its property, or make any assignment for the benefit of creditors, or except as required by law, admit in writing its inability to pay its debts generally as they become due, or take Company action in furtherance of any such action; and any purported action of the Company which violates this sentence shall be void and of no force or effect. (e) The Company shall have no liabilities, contingent or otherwise, other than the Permitted Indebtedness.

Purpose of Company. (a) The nature of the business or purposes to be conducted or promoted by the Company is to engage solely in the following activities: (i) to acquire from time to time all right, title and interest in and to receivables or leases arising out of or relating to the financing, sale or lease of new or used motor vehicles or industrial equipment, including automobiles, sports utility vehicles, light and heavy duty trucks, motorcycles and recreational vehicles, monies due thereunder, security interests in the motor vehicles or equipment financed thereby, proceeds from claims on insurance policies related thereto, and related rights (collectively, “Receivables”"RECEIVABLES"); (ii) to acquire, own, hold, service, sell, assign, pledge and otherwise deal with the Receivables, collateral securing the Receivables, related insurance policies, agreements with motor vehicle or equipment dealers or lessors or other obligors, originators or servicers of Receivables and any proceeds or further rights associated with any of the foregoing; (iii) to transfer Receivables and Securities to corporations, trusts (the “Trusts”"TRUSTS") or other entities, including without limitation corporations, trusts or other entities formed by BMW FS or Receivables Corp. (each a “Transferee”), "TRANSFEREE") pursuant to one or more receivables purchase agreements, pooling and servicing agreements, sale and servicing agreements or other agreements (the “Agreements”"AGREEMENTS") to be entered into by and among, among others, the Company, the Transferee named therein and any entity acting as collection agent or servicer of the Receivables; (iv) to sell Receivables to, or to finance ownership of Receivables through, one or more Transferees established to fund the transfer of Receivables through the issuance of commercial paper notes (such Transferee’s 's commercial paper notes issued to fund such Receivables, the “Commercial Paper”"COMMERCIAL PAPER") pursuant to one or more Agreements to be entered into by and among, among others, the Company, such Transferee and any entity acting as collection agent or servicer of the Receivables; (v) to issue, authorize, sell and deliver, or cause to participate in the issuanceissuance and sale of, authorizationany class of certificates or other securities (collectively, the "CERTIFICATES") issued by a Trust or other Transferee under the related Agreements; (vi) to acquire certificates or other interests (including special units of beneficial interest) issued by one or more trusts owning (or established to acquire) Receivables directly or indirectly; (vii) to issue, sell, authorize and deliver, or to participate in the issuance and sale and delivery of, one or more series and classes of bonds, notes or other evidence of indebtedness secured or collateralized by one or more pools of Receivables or by certificates of any class or other interests issued by one or more Trusts trusts including certificates of any class issued by a trust established, or other Transferees owning, directly or indirectly, Receivables, including without limitation special units of beneficial interest and other securities representing interests in which are acquired, by BMW FS or Receivables Corp. (collectively, the “Securities”), under the related Agreements, or under any indenture or other agreement pursuant to which any Securities are issued (each, an “Indenture”"NOTES"); (viviii) to acquire, own, hold, sell, assign, pledge hold and otherwise deal with the Securities, and to enjoy all of the rights and privileges of any SecuritiesCertificates issued by the Trusts to the Company under the related Agreements and to hold and enjoy all of the rights and privileges of any class of any series of Notes, or Certificates, including any class of Notes or Certificates which may be subordinate to any other class of Notes or Certificates, respectively; (viiix) to perform its obligations under the Agreements and any Indentureindenture or other agreement (each, an "INDENTURE") pursuant to which any Certificates or Notes are issued; and (viiix) to transact any and all lawful business that is reasonably necessary, appropriate, proper, advisable, related, proper or incidental or convenient to the conduct, promotion or attainment or for the furtherance of the purposes, activities and businesses described in this Section 2.6(a) and for the protection of the Company. In furtherance of such purposes, the Company shall have the power, and is hereby authorized to buy and sell Receivables and SecuritiesReceivables. (b) Notwithstanding any other provision of this LLC Agreement to the contrary, and any provision of law that otherwise so empowers the Company, the Company shall not do any of the following: (i) own any asset or property other than (A) the Receivables and SecuritiesReceivables, and (B) incidental personal and intangible property relating to the ownership of the Receivables and SecuritiesReceivables; (ii) engage in any business other than those set forth in subsection (a) above; (iii) enter into any contract or agreement with any Affiliate of the Company, any constituent party of the Company, or any Affiliate of any constituent party, except in the ordinary course of business and upon terms and conditions that are substantially similar to those that would be available on an arms-length basis with third parties; (iv) incur any indebtedness, or assume or guarantee any indebtedness of any other entity, secured or unsecured, direct or indirect, absolute or contingent other than (A) any indebtedness incurred in connection with any Commercial Paper or Securities, and (B) any indebtedness to BMW FS or any Affiliate thereof incurred in connection with the acquisition of Receivables, which indebtedness shall be subordinated to all other obligations of the Company and shall be nonrecourse debt of the Company, except with respect to proceeds of the Receivables in excess of such proceeds necessary to pay all obligations in relation to the Commercial Paper Paper, Certificates or Securities Notes (“Excess Proceeds”"EXCESS PROCEEDS"), and shall not constitute a claim against the Company to the extent that Excess Proceeds are insufficient to pay such indebtedness (provided that such indebtedness is also expressly authorized by the Special Member, including all of its Independent Directors), or endeavor to obtain credit or incur any other obligations (other than with respect to Receivables) to any Person based on the assets of any Person other than itself or pledge its assets for the benefit of any other Person; or fail to correct promptly any known misunderstanding with respect to the foregoing; (v) become insolvent or not pay its debts and liabilities (including operating expenses, employment and overhead expenses) from its assets as the same shall become due; (vi) fail to do or cause to be done all things necessary to observe organizational formalities and preserve its existence, or amend, modify, or otherwise change the organizational documents of the Company without the prior written authorization of all its Members, including that of all the Independent Directors of the Special Member; (vii) fail to maintain all of its company records books, records, and financial records distinct and separately identifiable bank accounts separate from those of its Affiliates and any other Person; (viii) constituent party or fail to prepare separate financial statements of the Company; provided that, in lieu of separate financial statements, the Company’s financial position, assets, liabilities, net worth and operating results may be included in the (even if consolidated financial statements of the Company or an Affiliate if appropriate notation is made on such consolidated financial statements indicating (1are also prepared) the separate identity of the Company from the Member or such other Affiliate audited by independent certified public accountants, and (2) that the Company’s assets and credit are not available to satisfy the debts and other obligations of the Member and such other Affiliate; (ix) fail to file its own tax returns, if any, as may be required under applicable law, returns (except to the extent not part consolidation is required as a matter of a consolidated group of another taxpayerlaw); (xviii) fail to hold itself out to the public as a legal entity separate and distinct from any other Person (including any of its Affiliates, any of its constituent parties, or any Affiliate of any constituent party), fail to conduct business in its own name or fail to maintain and utilize separate invoices and checks; (xi) fail to maintain adequate capital, taking into account anticipated excess interest income on assets over interest expense in liabilities, in light of its contemplated business purpose; (xii) commingle or pool Company funds and assets with those of any other Person; (xiii) fail to maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any Affiliate or constituent party or any Affiliate of any constituent party or any other Person; (xiv) hold itself out to be responsible for or guaranty the debts or obligations of any other Person; (xv) seek to merge into or consolidate with any Person or to the fullest extent permitted by law, subject to Section 9.1 hereof, dissolve (in whole or in part), wind up (in whole or in part), terminate, convert to a different form of business association (or otherwise change its legal structure) including, but not limited to, transfer of the limited liability company interests of any Member, in whole or in part, or liquidate (in whole or in part), transfer or otherwise dispose of all or substantially all of its assets, unless: (A) the entity (if other than the Company) formed or surviving the consolidation or merger or which acquires the properties and assets of the Company is organized and existing under the laws of the State of Delaware, expressly assumes the due and punctual payment of, and all obligations of the Company, including those obligations of the Company under any Agreement and any Indenture, and has a certificate of incorporation, limited liability company agreement or other controlling document containing provisions identical to the provision of this Section 2.6; and (B) immediately after giving effect to the transaction, no default or event of default has occurred and is continuing under any indebtedness of the Company or any agreements relating to such indebtedness; and (C) the entity (if other than the Company) formed or surviving the consolidation or merger or which acquires the properties and assets of the Company agrees that (i) it shall maintain its funds or assets as identifiable and not commingle its funds or assets with those of any direct or ultimate parent of such entity and pay from its assets all obligations and indebtedness of any kind incurred by it, (ii) it shall maintain separate bank accounts, company records and books of account from those of any direct or ultimate parent of such entity and (iii) the business affairs of such entity will be managed by or under the direction of its Board of Directors, Managing Board, Managing Member, or other governing board and it will conduct its business from an office separate from any direct or ultimate parent of such entity; and (D) the organizational and constituent documents and the surviving entity’s organizational documents continue to have provisions identical to the provisions of this Section 2.6; (xvi) to the fullest extent permitted by law, file or consent to the filing of any petition, either voluntary or involuntary, for insolvency, bankruptcy, liquidation, receivership, or reorganization under any laws or regulations, or make an assignment for the benefit of creditors or, except as required by law, admit in writing its inability to pay its debts as they come due, except as contemplated by Section 2.6(d) of this LLC Agreement; (xvii) take any action that could reasonably be expected to cause the Company to be treated as an association taxable as a corporation for federal, state or local tax purposes, or (xviii) fail to fairly allocate and apportion any overhead (including costs of office space, utilities and routine services) or other expenses (including employee salaries and benefits) shared between the Company and any other Person. Failure of the Company to comply with any of the foregoing restrictions shall not affect the status of the Company as a separate legal entity or adversely affect the limited liability of a Member. (c) The Special Member of the Company shall at all times, except as noted hereafter, cause there to be at least one duly appointed director of its Board of Directors who is an independent director (each, an “Independent Director”) who is not (i) a director, officer or employee of any affiliate of the Company; (ii) a person related to any officer or director of any affiliate of the Company; (iii) a holder (directly or indirectly) of more than 10% of any voting securities of any affiliate of the Company; or (iv) a person related to a holder (directly or indirectly) of more than 10% of any voting securities of any affiliate of the Company; and in the event of the death, incapacity, resignation or removal of all Independent Directors, the Board of Directors shall promptly appoint an Independent Director for each Independent Director whose death, incapacity, resignation or removal caused the related vacancy on the Board of Directors, provided, however, that the Board of Directors shall not vote on any matter unless and until at least one Independent Director has been duly appointed to serve on the Board of Directors. (d) Notwithstanding any other provision of this LLC Agreement or the Certificate or of law that otherwise so empowers the Company, the Company shall not, without the unanimous affirmative vote of all of the Members, which vote must include the vote of all of the Independent Directors of the Special Member, take any of the following actions: (i) to the fullest extent permitted by law, the dissolution, winding up, liquidation, consolidation, conversion to another form of business association, or change in the legal structure of the Company including, but not limited to, transfer of the limited liability company interests of any Member in whole or in part, or the merger of the Company; (ii) the engagement by the Company in any business other than as specified in Section 2.6(a); (iii) the amendment or modification of this Section 2.6; (iv) the material amendment or modification of any provision of this LLC Agreement (other than this Section 2.6) or the Certificate; or (v) to the fullest extent permitted by law, institute proceedings to be adjudicated bankrupt or insolvent, or consent to the institution of bankruptcy or insolvency proceedings against it, or file a voluntary bankruptcy petition or any other voluntary petition seeking or consenting to reorganization or relief under any applicable federal or state law relating to bankruptcy, or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of the Company or a substantial part of its property, or make any assignment for the benefit of creditors, or except as required by law, admit in writing its inability to pay its debts generally as they become due, or take Company action in furtherance of any such action; and any purported action of the Company which violates this sentence shall be void and of no force or effect. (e) The Company shall have no liabilities, contingent or otherwise, other than the Permitted Indebtedness.constituent

Purpose of Company. (a) The nature of the business or purposes to be conducted or promoted by the Company is to engage solely in the following activities: (i) to acquire from time to time all right, title and interest in and to receivables or leases arising out of or relating to the financing, sale or lease of new or used motor vehicles or industrial equipment, including automobiles, sports utility vehicles, light and heavy duty trucks, motorcycles and recreational vehicles, monies due thereunder, security interests in the motor vehicles or equipment financed thereby, proceeds from claims on insurance policies related thereto, and related rights (collectively, “"Receivables”"); (ii) to acquire, own, hold, service, sell, assign, pledge and otherwise deal with the Receivables, collateral securing the Receivables, related insurance policies, agreements with motor vehicle or equipment dealers or lessors or other obligors, originators or servicers of Receivables and any proceeds or further rights associated with any of the foregoing; (iii) to transfer Receivables and Securities to corporations, trusts (the “"Trusts”") or other entities, including without limitation corporations, trusts or other entities formed by BMW FS or Receivables Corp. (each a “"Transferee”), ") pursuant to one or more receivables purchase agreements, pooling and servicing agreements, sale and servicing agreements or other agreements (the “"Agreements”") to be entered into by and among, among others, the Company, the Transferee named therein and any entity acting as collection agent or servicer of the Receivables; (iv) to sell Receivables to, or to finance ownership of Receivables through, one or more Transferees established to fund the transfer of Receivables through the issuance of commercial paper notes (such Transferee’s 's commercial paper notes issued to fund such Receivables, the “"Commercial Paper”") pursuant to one or more Agreements to be entered into by and among, among others, the Company, such Transferee and any entity acting as collection agent or servicer of the Receivables; (v) to issue, authorize, sell and deliver, or cause to participate in the issuanceissuance and sale of, authorizationany class of certificates or other securities (collectively, the "Certificates") issued by a Trust or other Transferee under the related Agreements; (vi) to acquire certificates or other interests (including special units of beneficial interest) issued by one or more trusts owning (or established to acquire) Receivables directly or indirectly; (vii) to issue, sell, authorize and deliver, or to participate in the issuance and sale and delivery of, one or more series and classes of bonds, notes or other evidence of indebtedness secured or collateralized by one or more pools of Receivables or by certificates of any class or other interests issued by one or more Trusts trusts including certificates of any class issued by a trust established, or other Transferees owning, directly or indirectly, Receivables, including without limitation special units of beneficial interest and other securities representing interests in which are acquired, by BMW FS or Receivables Corp. (collectively, the “Securities”), under the related Agreements, or under any indenture or other agreement pursuant to which any Securities are issued (each, an “Indenture”"Notes"); (viviii) to acquire, own, hold, sell, assign, pledge hold and otherwise deal with the Securities, and to enjoy all of the rights and privileges of any SecuritiesCertificates issued by the Trusts to the Company under the related Agreements and to hold and enjoy all of the rights and privileges of any class of any series of Notes, or Certificates, including any class of Notes or Certificates which may be subordinate to any other class of Notes or Certificates, respectively; (viiix) to perform its obligations under the Agreements and any indenture or other agreement (each, an "Indenture") pursuant to which any Certificates or Notes are issued; and (viiix) to transact any and all lawful business that is reasonably necessary, appropriate, proper, advisable, related, proper or incidental or convenient to the conduct, promotion or attainment or for the furtherance of the purposes, activities and businesses described in this Section 2.6(a) and for the protection of the Company. In furtherance of such purposes, the Company shall have the power, and is hereby authorized to buy and sell Receivables and SecuritiesReceivables. (b) Notwithstanding any other provision of this LLC Agreement to the contrary, and any provision of law that otherwise so empowers the Company, the Company shall not do any of the following: (i) own any asset or property other than (A) the Receivables and SecuritiesReceivables, and (B) incidental personal and intangible property relating to the ownership of the Receivables and SecuritiesReceivables; (ii) engage in any business other than those set forth in subsection (a) above; (iii) enter into any contract or agreement with any Affiliate of the Company, any constituent party of the Company, or any Affiliate of any constituent party, except in the ordinary course of business and upon terms and conditions that are substantially similar to those that would be available on an arms-length basis with third parties; (iv) incur any indebtedness, or assume or guarantee any indebtedness of any other entity, secured or unsecured, direct or indirect, absolute or contingent other than (A) any indebtedness incurred in connection with any Commercial Paper Paper, Certificates or SecuritiesNotes, and (B) any indebtedness to BMW FS or any Affiliate thereof incurred in connection with the acquisition of Receivables, which indebtedness shall be subordinated to all other obligations of the Company and shall be nonrecourse debt of the Company, except with respect to proceeds of the Receivables in excess of such proceeds necessary to pay all obligations in relation to the Commercial Paper Paper, Certificates or Securities Notes (“"Excess Proceeds”"), and shall not constitute a claim against the Company to the extent that Excess Proceeds are insufficient to pay such indebtedness (provided that such indebtedness is also expressly authorized by the Special Member, including all of its Independent Directors), or endeavor to obtain credit or incur any other obligations (other than with respect to Receivables) to any Person based on the assets of any Person other than itself or pledge its assets for the benefit of any other Person; or fail to correct promptly any known misunderstanding with respect to the foregoing; (v) become insolvent or not pay its debts and liabilities (including operating expenses, employment and overhead expenses) from its assets as the same shall become due; (vi) fail to do or cause to be done all things necessary to observe organizational formalities and preserve its existence, or amend, modify, or otherwise change the organizational documents of the Company without the prior written authorization of all its Members, including that of all the Independent Directors of the Special Member; (vii) fail to maintain all of its company records books, records, and financial records distinct and separately identifiable bank accounts separate from those of its Affiliates and any other Person; (viii) constituent party or fail to prepare separate financial statements of the Company; provided that, in lieu of separate financial statements, the Company’s financial position, assets, liabilities, net worth and operating results may be included in the (even if consolidated financial statements of the Company or an Affiliate if appropriate notation is made on such consolidated financial statements indicating (1are also prepared) the separate identity of the Company from the Member or such other Affiliate audited by independent certified public accountants, and (2) that the Company’s assets and credit are not available to satisfy the debts and other obligations of the Member and such other Affiliate; (ix) fail to file its own tax returns, if any, as may be required under applicable law, returns (except to the extent not part consolidation is required as a matter of a consolidated group of another taxpayerlaw); (xviii) fail to hold itself out to the public as a legal entity separate and distinct from any other Person (including any of its Affiliates, any of its constituent parties, or any Affiliate of any constituent party), fail to conduct business in its own name or fail to maintain and utilize separate invoices and checks; (xiix) fail to maintain adequate capital, taking into account anticipated excess interest income on assets over interest expense in liabilities, in light of its contemplated business purpose; (xiix) commingle or pool Company funds and assets with those of any other Person; (xiiixi) fail to maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any Affiliate or constituent party or any Affiliate of any constituent party or any other Person; (xivxii) hold itself out to be responsible for or guaranty the debts or obligations of any other Person; (xvxiii) seek to merge into or consolidate with any Person or to the fullest extent permitted by lawor, subject to Section 9.1 hereof, dissolve (in whole or in part), wind up (in whole or in part), terminate, convert to a different form of business association (or otherwise change its legal structure) including, but not limited to, transfer of the limited liability company interests of any Member, in whole or in part, or liquidate (in whole or in part), transfer or otherwise dispose of all or substantially all of its assets, unless: (A) the entity (if other than the Company) formed or surviving the consolidation or merger or which acquires the properties and assets of the Company is organized and existing under the laws of the State of Delaware, expressly assumes the due and punctual payment of, and all obligations of the Company, including those obligations of the Company under any Agreement and any Indenture, and has a certificate of incorporation, limited liability company agreement or other controlling document containing provisions identical to the provision of this Section 2.6; and (B) immediately after giving effect to the transaction, no default or event of default has occurred and is continuing under any indebtedness of the Company or any agreements relating to such indebtedness; and (C) the entity (if other than the Company) formed or surviving the consolidation or merger or which acquires the properties and assets of the Company agrees that (i) it shall maintain its funds or assets as identifiable and not commingle its funds or assets with those of any direct or ultimate parent of such entity and pay from its assets all obligations and indebtedness of any kind incurred by it, (ii) it shall maintain separate bank accounts, company records and books of account from those of any direct or ultimate parent of such entity and (iii) the business affairs of such entity will be managed by or under the direction of its Board of Directors, Managing Board, Managing Member, or other governing board and it will conduct its business from an office separate from any direct or ultimate parent of such entity; and (D) the organizational and constituent documents and the surviving entity’s 's organizational documents continue to have provisions identical to the provisions of this Section 2.6; (xvixiv) to the fullest extent permitted by law, file or consent to the filing of any petition, either voluntary or involuntary, for insolvency, bankruptcy, liquidation, receivership, or reorganization under any laws or regulations, or make an assignment for the benefit of creditors or, except as required by law, admit in writing its inability to pay its debts as they come due, except as contemplated by Section 2.6(d) of this LLC Agreement; (xviixv) take any action that could reasonably be expected to cause the Company to be treated as an association taxable as a corporation for federal, state or local tax purposes, or (xviiixvi) fail to fairly allocate and apportion any overhead (including costs of office space, utilities and routine services) or other expenses (including employee salaries and benefits) shared between the Company and any other Person. Failure of the Company to comply with any of the foregoing restrictions shall not affect the status of the Company as a separate legal entity or adversely affect the limited liability of a Member. (c) The Special Member of the Company shall at all times, except as noted hereafter, cause there to be at least one duly appointed director of its Board of Directors who is an independent director (each, an “"Independent Director”") who is not (i) a director, officer or employee of any affiliate of the Company; (ii) a person related to any officer or director of any affiliate of the Company; (iii) a holder (directly or indirectly) of more than 10% of any voting securities of any affiliate of the Company; or (iv) a person related to a holder (directly or indirectly) of more than 10% of any voting securities of any affiliate of the Company; and in the event of the death, incapacity, resignation or removal of all Independent Directors, the Board of Directors shall promptly appoint an Independent Director for each Independent Director whose death, incapacity, resignation or removal caused the related vacancy on the Board of Directors, provided, however, that the Board of Directors shall not vote on any matter unless and until at least one Independent Director has been duly appointed to serve on the Board of Directors. (d) Notwithstanding any other provision of this LLC Agreement or the Certificate or of law that otherwise so empowers the Company, the Company shall not, without the unanimous affirmative vote of all of the Members, which vote must include the vote of all of the Independent Directors of the Special Member, take any of the following actions: (i) to the fullest extent permitted by law, the dissolution, winding up, liquidation, consolidation, conversion to another form of business association, or change in the legal structure of the Company including, but not limited to, transfer of the limited liability company interests of any Member in whole or in part, or the merger of the Company; (ii) the engagement by the Company in any business other than as specified in Section 2.6(a); or (iii) the amendment or modification of this Section 2.6; (iv) the material amendment or modification of any . Notwithstanding another provision of this LLC Agreement (other than this Section 2.6) or the Certificate; Certificate or of law that otherwise so empowers the Company, the Company shall not, without the unanimous affirmative vote of all of the Members, which vote must include the vote of all of the Independent Directors of the Special Member, take any of the following actions: (vA) to the fullest extent permitted by law, institute proceedings to be adjudicated bankrupt or insolvent, or consent to the institution of bankruptcy or insolvency proceedings against it, or file a voluntary bankruptcy petition or any other voluntary petition seeking or consenting to reorganization or relief under any applicable federal or state law relating to bankruptcy, or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of the Company or a substantial part of its property, or make any assignment for the benefit of creditors, or except as required by law, admit in writing its inability to pay its debts generally as they become due, or take Company action in furtherance of any such action; or (B) the material amendment or modification of any provision of this LLC Agreement (other than this Section 2.6, amendment of which by the Company is prohibited by the prior sentence of this Section 2.6(d)) or the Certificate; and any purported action of the Company which violates this sentence shall be void ab initio and of no force or effect. (e) The Company shall have no liabilities, contingent or otherwise, other than the Permitted Indebtedness.

Purpose of Company. (a) The nature of the business or purposes to be conducted or promoted by the Company is to engage solely in the following activities: (i) to acquire from time to time all right, title and interest in and to receivables or leases arising out of or relating to the financing, sale or lease of new or used motor vehicles or industrial equipment, including automobiles, sports utility vehicles, light and heavy duty trucks, motorcycles and recreational vehicles, monies due thereunder, security interests in the motor vehicles or equipment financed thereby, proceeds from claims on insurance policies related thereto, and related rights (collectively, “"Receivables”"); (ii) to acquire, own, hold, service, sell, assign, pledge and otherwise deal with the Receivables, collateral securing the Receivables, related insurance policies, agreements with motor vehicle or equipment dealers or lessors or other obligors, originators or servicers of Receivables and any proceeds or further rights associated with any of the foregoing; (iii) to transfer Receivables and Securities to corporations, trusts (the “"Trusts”") or other entities, including without limitation corporations, trusts or other entities formed by BMW FS or Receivables Corp. (each a “"Transferee”), ") pursuant to one or more receivables purchase agreements, pooling and servicing agreements, sale and servicing agreements or other agreements (the “"Agreements”") to be entered into by and among, among others, the Company, the Transferee named therein and any entity acting as collection agent or servicer of the Receivables; (iv) to sell Receivables to, or to finance ownership of Receivables through, one or more Transferees established to fund the transfer of Receivables through the issuance of commercial paper notes (such Transferee’s 's commercial paper notes issued to fund such Receivables, the “"Commercial Paper”") pursuant to one or more Agreements to be entered into by and among, among others, the Company, such Transferee and any entity acting as collection agent or servicer of the Receivables; (v) to issue, authorize, sell and deliverdeliver any class of certificates or other securities (collectively, the "Certificates") issued by a Trust or cause other Transferee under the issuancerelated Agreements; (vi) to acquire from FCC or Receivables Corp. certificates issued by one or more grantor trusts to which FCC or Receivables Corp. transferred Receivables; (vii) to issue, authorizationsell, sale authorize and delivery of, deliver one or more series and classes of bonds, notes or other evidence of indebtedness secured or collateralized by one or more pools of Receivables or by certificates of any class or other interests issued by one or more Trusts trusts or other Transferees owning, directly or indirectly, Receivables, including without limitation special units by certificates of beneficial interest and other securities representing interests in Receivables any class issued by a grantor trust established by FCC (collectively, the “Securities”), under the related Agreements, or under any indenture or other agreement pursuant to which any Securities are issued (each, an “Indenture”"Notes"); (viviii) to acquire, own, hold, sell, assign, pledge hold and otherwise deal with the Securities, and to enjoy all of the rights and privileges of any SecuritiesCertificates issued by the Trusts to the Company under the related Agreements and to hold and enjoy all of the rights and privileges of any class of any series of Notes or Certificates, including any class of Notes or Certificates which may be subordinate to any other class of Notes or Certificates, respectively; (viiix) to perform its obligations under the Agreements and any indenture or other agreement (each, an "Indenture") pursuant to which any Certificates or Notes are issued; and (viiix) to engage in any activity, to exercise any powers permitted to limited liability companies under the laws of the State of Delaware and to transact any and all lawful business that is reasonably necessary, appropriate, proper, advisable, related, incidental or convenient to the conduct, promotion or attainment or for the furtherance of the purposes, activities and businesses described in this Section 2.6(a) and for the protection of the Company. In furtherance of such purposes, the Company shall have the power, and is hereby authorized to buy and sell Receivables and Securities. (b) Notwithstanding any other provision of this LLC Agreement to the contrary, and any provision of law that otherwise so empowers the Company, the Company shall not do any of the following: (i) own any asset or property other than (A) the Receivables and Securities, and (B) incidental personal and intangible property relating to the ownership of the Receivables and Securities; (ii) engage in any business other than those set forth in subsection (a) above; (iii) enter into any contract or agreement with any Affiliate of the Company, any constituent party of the Company, or any Affiliate of any constituent party, except in the ordinary course of business and upon terms and conditions that are substantially similar to those that would be available on an arms-length basis with third parties; (iv) incur any indebtedness, or assume or guarantee any indebtedness of any other entity, secured or unsecured, direct or indirect, absolute or contingent other than (A) any indebtedness incurred in connection with any Commercial Paper or Securities, and (B) any indebtedness to BMW FS or any Affiliate thereof incurred in connection with the acquisition of Receivables, which indebtedness shall be subordinated to all other obligations of the Company and shall be nonrecourse debt of the Company, except with respect to proceeds of the Receivables in excess of such proceeds necessary to pay all obligations in relation to the Commercial Paper or Securities (“Excess Proceeds”), and shall not constitute a claim against the Company to the extent that Excess Proceeds are insufficient to pay such indebtedness (provided that such indebtedness is also expressly authorized by the Special Member, including all of its Independent Directors), or endeavor to obtain credit or incur any other obligations (other than with respect to Receivables) to any Person based on the assets of any Person other than itself or pledge its assets for the benefit of any other Person; or fail to correct promptly any known misunderstanding with respect to the foregoing; (v) become insolvent or not pay its debts and liabilities (including operating expenses, employment and overhead expenses) from its assets as the same shall become due; (vi) fail to do or cause to be done all things necessary to observe organizational formalities and preserve its existence, or amend, modify, or otherwise change the organizational documents of the Company without the prior written authorization of all its Members, including that of all the Independent Directors of the Special Member; (vii) fail to maintain all of its company records and financial records distinct and separately identifiable from those of its Affiliates and any other Person; (viii) fail to prepare separate financial statements of the Company; provided that, in lieu of separate financial statements, the Company’s financial position, assets, liabilities, net worth and operating results may be included in the consolidated financial statements of the Company or an Affiliate if appropriate notation is made on such consolidated financial statements indicating (1) the separate identity of the Company from the Member or such other Affiliate and (2) that the Company’s assets and credit are not available to satisfy the debts and other obligations of the Member and such other Affiliate; (ix) fail to file its own tax returns, if any, as may be required under applicable law, to the extent not part of a consolidated group of another taxpayer; (x) fail to hold itself out to the public as a legal entity separate and distinct from any other Person (including any of its Affiliates, any of its constituent parties, or any Affiliate of any constituent party), fail to conduct business in its own name or fail to maintain and utilize separate invoices and checks; (xi) fail to maintain adequate capital, taking into account anticipated excess interest income on assets over interest expense in liabilities, in light of its contemplated business purpose; (xii) commingle or pool Company funds and assets with those of any other Person; (xiii) fail to maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any Affiliate or constituent party or any Affiliate of any constituent party or any other Person; (xiv) hold itself out to be responsible for or guaranty the debts or obligations of any other Person; (xv) seek to merge into or consolidate with any Person or to the fullest extent permitted by law, subject to Section 9.1 hereof, dissolve (in whole or in part), wind up (in whole or in part), terminate, convert to a different form of business association (or otherwise change its legal structure) including, but not limited to, transfer of the limited liability company interests of any Member, in whole or in part, or liquidate (in whole or in part), transfer or otherwise dispose of all or substantially all of its assets, unless: (A) the entity (if other than the Company) formed or surviving the consolidation or merger or which acquires the properties and assets of the Company is organized and existing under the laws of the State of Delaware, expressly assumes the due and punctual payment of, and all obligations of the Company, including those obligations of the Company under any Agreement and any Indenture, and has a certificate of incorporation, limited liability company agreement or other controlling document containing provisions identical to the provision of this Section 2.6; and (B) immediately after giving effect to the transaction, no default or event of default has occurred and is continuing under any indebtedness of the Company or any agreements relating to such indebtedness; and (C) the entity (if other than the Company) formed or surviving the consolidation or merger or which acquires the properties and assets of the Company agrees that (i) it shall maintain its funds or assets as identifiable and not commingle its funds or assets with those of any direct or ultimate parent of such entity and pay from its assets all obligations and indebtedness of any kind incurred by it, (ii) it shall maintain separate bank accounts, company records and books of account from those of any direct or ultimate parent of such entity and (iii) the business affairs of such entity will be managed by or under the direction of its Board of Directors, Managing Board, Managing Member, or other governing board and it will conduct its business from an office separate from any direct or ultimate parent of such entity; and (D) the organizational and constituent documents and the surviving entity’s organizational documents continue to have provisions identical to the provisions of this Section 2.6; (xvi) to the fullest extent permitted by law, file or consent to the filing of any petition, either voluntary or involuntary, for insolvency, bankruptcy, liquidation, receivership, or reorganization under any laws or regulations, or make an assignment for the benefit of creditors or, except as required by law, admit in writing its inability to pay its debts as they come due, except as contemplated by Section 2.6(d) of this LLC Agreement; (xvii) take any action that could reasonably be expected to cause the Company to be treated as an association taxable as a corporation for federal, state or local tax purposes, or (xviii) fail to fairly allocate and apportion any overhead (including costs of office space, utilities and routine services) or other expenses (including employee salaries and benefits) shared between the Company and any other Person. Failure of the Company to comply with any of the foregoing restrictions shall not affect the status of the Company as a separate legal entity or adversely affect the limited liability of a Member. (c) The Special Member of the Company shall at all times, except as noted hereafter, cause there to be at least one duly appointed director of its Board of Directors who is an independent director (each, an “Independent Director”) who is not (i) a director, officer or employee of any affiliate of the Company; (ii) a person related to any officer or director of any affiliate of the Company; (iii) a holder (directly or indirectly) of more than 10% of any voting securities of any affiliate of the Company; or (iv) a person related to a holder (directly or indirectly) of more than 10% of any voting securities of any affiliate of the Company; and in the event of the death, incapacity, resignation or removal of all Independent Directors, the Board of Directors shall promptly appoint an Independent Director for each Independent Director whose death, incapacity, resignation or removal caused the related vacancy on the Board of Directors, provided, however, that the Board of Directors shall not vote on any matter unless and until at least one Independent Director has been duly appointed to serve on the Board of Directors. (d) Notwithstanding any other provision of this LLC Agreement or the Certificate or of law that otherwise so empowers the Company, the Company shall not, without the unanimous affirmative vote of all of the Members, which vote must include the vote of all of the Independent Directors of the Special Member, take any of the following actions: (i) to the fullest extent permitted by law, the dissolution, winding up, liquidation, consolidation, conversion to another form of business association, or change in the legal structure of the Company including, but not limited to, transfer of the limited liability company interests of any Member in whole or in part, or the merger of the Company; (ii) the engagement by the Company in any business other than as specified in Section 2.6(a); (iii) the amendment or modification of this Section 2.6; (iv) the material amendment or modification of any provision of this LLC Agreement (other than this Section 2.6) or the Certificate; or (v) to the fullest extent permitted by law, institute proceedings to be adjudicated bankrupt or insolvent, or consent to the institution of bankruptcy or insolvency proceedings against it, or file a voluntary bankruptcy petition or any other voluntary petition seeking or consenting to reorganization or relief under any applicable federal or state law relating to bankruptcy, or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of the Company or a substantial part of its property, or make any assignment for the benefit of creditors, or except as required by law, admit in writing its inability to pay its debts generally as they become due, or take Company action in furtherance of any such action; and any purported action of the Company which violates this sentence shall be void and of no force or effect. (e) The Company shall have no liabilities, contingent or otherwise, other than the Permitted Indebtedness.the