FORM OF RECEIVABLES PURCHASE AGREEMENT between BMW FINANCIAL SERVICES NA, LLC, as Seller, and BMW FS SECURITIES LLC, as Depositor Dated as of July 18, 2023
Exhibit 10.4
FORM OF RECEIVABLES PURCHASE AGREEMENT
between
BMW FINANCIAL SERVICES NA, LLC,
as Seller,
and
BMW FS SECURITIES LLC,
as Depositor
Dated as of July 18, 2023
TABLE OF CONTENTS
PAGE
ARTICLE I
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CERTAIN DEFINITIONS
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1
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ARTICLE II
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CONVEYANCE OF RECEIVABLES
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3
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SECTION 2.01
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Conveyance of Receivables
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3
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SECTION 2.02
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The Closing
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4
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ARTICLE III
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REPRESENTATIONS AND WARRANTIES
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4
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SECTION 3.01
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Representations and Warranties of the Depositor
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4
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SECTION 3.02
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Representations and Warranties of the Seller
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6
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SECTION 3.03
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Perfection Representations, Warranties and Covenants
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12
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ARTICLE IV
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CONDITIONS
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12
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SECTION 4.01
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Conditions to Obligation of the Depositor
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12
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SECTION 4.02
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Conditions to Obligation of the Seller
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13
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ARTICLE V
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COVENANTS OF THE SELLER AND THE DEPOSITOR
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15
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SECTION 5.01
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Protection of Right, Title and Interest
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15
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SECTION 5.02
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Other Liens or Interests
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15
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SECTION 5.03
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Costs and Expenses
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15
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SECTION 5.04
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Hold Harmless
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15
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SECTION 5.05
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Compliance with the FDIC Rule
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16
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ARTICLE VI
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MISCELLANEOUS PROVISIONS
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16
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SECTION 6.01
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Obligations of Seller
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16
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SECTION 6.02
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Repurchase Events
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16
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SECTION 6.03
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Depositor Assignment of Repurchased Receivables
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17
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SECTION 6.04
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Transfer to the Issuer
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17
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SECTION 6.05
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Amendment
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17
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SECTION 6.06
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Waivers
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18
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SECTION 6.07
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Notices
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18
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SECTION 6.08
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Costs and Expenses
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18
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SECTION 6.09
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Representations of the Seller and the Depositor
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18
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SECTION 6.10
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Confidential Information
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18
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SECTION 6.11
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Headings and Cross-References
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18
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SECTION 6.12
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Governing Law
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19
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SECTION 6.13
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Counterparts
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19
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SECTION 6.14
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Third Party Beneficiary
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19
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SECTION 6.15
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No Proceedings
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19
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SCHEDULES
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||
SCHEDULE I
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Schedule of Receivables
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SCHEDULE II
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Location of Receivable Files
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SCHEDULE III
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Perfection Representations, Warranties and Covenants
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i
THIS RECEIVABLES PURCHASE AGREEMENT dated as of July 18, 2023, is between BMW FINANCIAL SERVICES NA, LLC, a Delaware limited liability company (the “Seller”), and BMW
FS SECURITIES LLC, a Delaware limited liability company, as depositor (the “Depositor”).
WHEREAS, the Depositor intends, concurrently with its purchase hereunder, to convey all of its right, title and interest in and to all of such contracts to BMW Vehicle
Owner Trust 2023-A (the “Issuer”) pursuant to a Sale and Servicing Agreement dated as of July 18, 2023 (the “Sale and Servicing Agreement”), by and among the Issuer, the Depositor, the Sponsor, the Servicer, the Administrator and the Custodian, U.S.
Bank Trust Company, National Association, as indenture trustee (the “Indenture Trustee”), and U.S. Bank National Association, as securities intermediary, and the Issuer intends to pledge all of its right, title and interest in and to such contracts
to the Indenture Trustee pursuant to the Indenture dated as of July 18, 2023 (the “Indenture”), by and between the Issuer and the Indenture Trustee.
ARTICLE I CERTAIN DEFINITIONS
Terms not defined in this Agreement shall have the meanings assigned thereto in the Sale and Servicing Agreement, the Underwriting Agreement or the Indenture, as the
case may be. As used in this Agreement, the following terms shall, unless the context otherwise requires, have the following meanings (such meanings to be equally applicable to the singular and plural forms of the terms defined):
“Act” shall have the meaning specified in Section 3.01(h).
“Agreement” shall mean this Receivables Purchase Agreement, as the same may be amended and supplemented from time to time.
“Bank Receivables Purchase Agreement” shall mean the Receivables Purchase Agreement, dated as of July 18, 2023, between BMW Bank, as seller, and the Depositor.
“BMW Bank” shall mean BMW Bank of North America.
“BMW FS” shall mean BMW Financial Services NA, LLC.
“Conveyed Assets” shall have the meaning set forth in Section 2.01.
“Depositor” shall mean BMW FS Securities LLC, a Delaware limited liability company, and its successors and assigns.
“Indenture” shall have the meaning set forth in the recitals.
“Issuer” shall have the meaning set forth in the recitals.
“Lien Certificate” means, with respect to a Financed Vehicle, an original certificate of title, certificate of lien or other notification issued by the Registrar of
Titles of the applicable State to a secured party which indicates that the lien of the secured party on such Financed Vehicle is recorded on the original certificate of title. In any jurisdiction in which the original certificate of title is
required to be given to the Obligor, the term “Lien Certificate” shall mean only a certificate or notification issued to a secured party.
“Prospectus” shall have the meaning set forth in the Underwriting Agreement.
“Purchase Price” shall have the meaning set forth in Section 2.01.
“Receivable” shall mean any Contract listed on Schedule I hereto (which Schedule may be in the form of microfiche).
“Registrar of Titles” means with respect to any State, the governmental agency or body responsible for the registration of, and the issuance of certificates of title
relating to, motor vehicles and liens thereon.
“Registration Statement” means Registration Statement No. 333-2262471 filed by the Depositor with the Securities and Exchange Commission in the form in which it became
effective on March 28, 2022.
“Rules and Regulations” shall have the meaning specified in Section 3.01(i).
“Sale and Servicing Agreement” shall have the meaning set forth in the recitals.
“Schedule of Receivables” shall mean the list of Receivables annexed hereto as Schedule I (which Schedule may be in the form of microfiche).
“Seller” shall mean BMW FS, and its successors and assigns.
“Transfer Date” shall mean the Closing Date.
“Underwriters” means each of TD Securities (USA) LLC, MUFG Securities Americas Inc., Xxxxx Fargo Securities, LLC, Citigroup Global Markets Inc. and U.S. Bancorp
Investments, Inc.
“Underwriting Agreement” means the Underwriting Agreement, dated July 11, 2023, among BMW FS, the Depositor and TD Securities (USA) LLC, on behalf of itself and as
representative of the Underwriters, relating to BMW Vehicle Owner Trust 2023-A.
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ARTICLE II CONVEYANCE OF RECEIVABLES
(a) In consideration of the Depositor’s delivery to or upon the order of the Seller on the Closing Date of $1,420,199,423.00 (the “Purchase Price”), the Seller does hereby sell, transfer, assign, set over and otherwise convey to the
Depositor, without recourse (subject to the obligations of the Seller herein) all right, title, and interest of the Seller in and to the following assets and property whether now owned or existing or hereafter acquired or arising:
(i) the Receivables and all moneys received thereon after the close of business on May 31, 2023;
(ii) the security interests in the Financed Vehicles and any accessions thereto granted by Obligors pursuant to the Receivables and any other interest of the Seller in such Financed Vehicles;
(iii) any Liquidation Proceeds and Recoveries and any other proceeds with respect to the Receivables from claims on any theft, physical damage, credit life or disability insurance policies covering Financed
Vehicles or Obligors, including any vendor’s single interest or other collateral protection insurance policy;
(iv) any property that shall have secured a Receivable and that shall have been acquired by or on behalf of the Seller;
(v) all documents and other items contained in the Receivable Files;
(vi) all proceeds from any Receivable repurchased by a Dealer pursuant to a Dealer Agreement and all rights against BMW Bank pursuant to one or more bills of sale pursuant to which the Seller acquired the
Receivables; and
(vii) the proceeds of any and all of the foregoing (collectively, with the assets listed in clauses (i) through (vi) above, the “Conveyed Assets”).
(b) For all non-tax purposes, the Seller and the Depositor intend that the transfer of assets by the Seller to the Depositor pursuant to this Agreement be a sale of the ownership interest in such assets to the Depositor, rather than the
mere granting of a security interest to secure a borrowing. In the event, however, that such transfer is deemed not to be a sale but to be a grant of a mere security interest to secure a borrowing, the Seller shall be deemed to have hereby
granted, and does hereby grant, to the Depositor a first priority security interest in all right, title and interest of the Seller in and to the Conveyed Assets, whether now owned or existing or hereafter acquired or arising, and all accounts,
money, chattel paper, securities, instruments, documents, deposit accounts, certificates of deposit, letters of credit, advices of credit, banker’s acceptances, uncertificated securities, general intangibles, contract rights, goods and other
property consisting of, arising from or relating to such Conveyed Assets, which security interest shall be perfected, to secure a debt in the amount equal to the Purchase Price
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(less payments of principal previously received in respect of the Receivables) plus interest at a rate equal to the weighted average of the interest rates payable on the Receivables.
Pursuant to the Sale and Servicing Agreement and Section 6.04 hereof, the Depositor may sell, transfer and assign to the Issuer (i) all or any portion of the assets assigned to the Depositor hereunder, (ii) all or any portion of the Depositor’s
rights against the Seller under this Agreement and (iii) all proceeds thereof. Such assignment may be made by the Depositor with or without an assignment by the Depositor of its rights under this Agreement, and without further notice to or
acknowledgement from the Seller. The Seller waives, to the extent permitted under applicable law, all claims, causes of action and remedies, whether legal or equitable (including any right of setoff), against the Depositor or any assignee of the
Depositor relating to such action by the Depositor in connection with the transactions contemplated by the Sale and Servicing Agreement. Because (i) the Depositor intends to convey all of its right, title and interest
in and to the Receivables to the Issuer pursuant to the Sale and Servicing Agreement, (ii) the Issuer intends to pledge all of its right, title and interest in and to the Receivables to the Indenture Trustee
pursuant to the Indenture, (iii) the Seller intends that the transfer of Receivables pursuant to this Agreement be a sale of the ownership interest in such Receivables to the Depositor, and (iv) the parties intend that the Indenture Trustee have a
direct security interest in the Receivables, if the transfer of the Receivables pursuant to this Agreement is deemed to be a grant of a security interest to secure a borrowing, the foregoing grant by the Seller of a security interest in the
Receivables to secure a debt in the amount of the debt described above shall be deemed to be, and the Seller hereby grants, a direct security interest in the Receivables to the Indenture Trustee for the benefit of the Noteholders to secure the debt
described above.
SECTION 2.02 The Closing. The sale and purchase of the Receivables shall take place at a closing at the offices of Xxxxxx, Xxxxx
& Xxxxxxx LLP, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 on the Closing Date, simultaneously with the closing under (a) the Sale and Servicing Agreement, (b) the Indenture, (c) the Bank Receivables Purchase Agreement and (d) the Trust Agreement.
ARTICLE III REPRESENTATIONS AND WARRANTIES
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(h) The Depositor, and the Securities being offered in connection with the transactions described in this Agreement and the Basic Documents, meet the requirements for use of Form SF-3 under the Securities Act of 1933, as amended (the
“Act”), and the Depositor has filed with the Commission the Registration Statement on such Form, including a form of prospectus, for the registration under the Act of the offering and sale of the Securities.
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(i) On the date of this Agreement, the Registration Statement will comply in all material respects with the applicable requirements of the Act, and the respective rules and regulations of the Commission thereunder (the “Rules and
Regulations”).
(j) On the date of this Agreement, the Depositor is not aware of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threat of any proceeding for that purpose.
(a) The Seller hereby represents and warrants as follows to the Depositor and the Indenture Trustee as of the date hereof and as of the Transfer Date:
(i) Organization and Good Standing. The Seller has been duly organized and is validly existing as a limited liability company under the laws of the State of Delaware, with the power and authority to own its
properties and to conduct its business as such properties are currently owned and such business is currently conducted.
(ii) Due Qualification. The Seller is duly authorized to transact business as a foreign limited liability company in good standing, and has obtained all necessary licenses and approvals, in all jurisdictions in
which the ownership or lease of property or the conduct of its business shall require such qualifications and in which the failure to be so authorized would have a material adverse effect on the business, properties, assets, or condition (financial
or other) of the Seller and its subsidiaries, considered as one enterprise.
(iii) Power and Authority; Binding Obligation. The Seller has the power and authority to make, execute, deliver and perform this Agreement and all of the transactions contemplated under this Agreement and the
other Basic Documents to which the Seller is a party, and has taken all necessary action to authorize the execution, delivery and performance of this Agreement and the other Basic Documents to which the Seller is a party. When executed and
delivered, this Agreement and the other Basic Documents to which the Seller is a party will constitute legal, valid and binding obligations of the Seller enforceable in accordance with their respective terms, except as enforcement of such terms
may be limited by bankruptcy, insolvency or similar laws affecting the enforcement of creditors’ rights generally and by the availability of equitable remedies.
(iv) No Violation. The execution, delivery and performance by the Seller of this Agreement and the other Basic Documents to which the Seller is a party will not violate any provision of any existing state,
federal or, to the best knowledge of the Seller, local law or regulation or any order or decree of any court applicable to the Seller or any provision of the limited liability company agreement of the Seller, or constitute a breach of any mortgage,
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indenture, contract or other agreement to which the Seller is a party or by which the Seller may be bound or result in the creation or imposition of any lien upon any
of the Seller’s properties pursuant to any such mortgage, indenture, contract or other agreement (other than this Agreement).
(v) No Proceedings. There are no proceedings or investigations pending or, to the Seller’s knowledge, threatened against the Seller before any court, regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Seller or its properties (i) asserting the invalidity of this Agreement or any other Basic Document, (ii) seeking to prevent the consummation of any of the transactions contemplated by this Agreement or
any other Basic Document or (iii) seeking any determination or ruling that might materially and adversely affect the performance by the Seller of its obligations under, or the validity or enforceability of, this Agreement or any other Basic
Document.
(vi) Chief Executive Office and Principal Place of Business. The chief executive office and the principal place of business of the Seller for the previous five years is 000 Xxxxxxxx Xxxxx Xxxx, Xxxxxxxxx Xxxx,
Xxx Xxxxxx 00000.
(vii) No Consents. The Seller is not required to obtain the consent of any other party or any consent, license, approval, registration, authorization, or declaration of or with any governmental authority, bureau
or agency in connection with the execution, delivery, performance, validity, or enforceability of this Agreement or any other Basic Document to which it is a party that has not already been obtained.
(viii) No Notice. The Seller represents and warrants that it acquired title to the Receivables in good faith, without notice of any adverse claim.
(ix) Bulk Transfer. The Seller represents and warrants that the transfer, assignment and conveyance of the Receivables by the Seller pursuant to this Agreement is not subject to the bulk transfer laws or any
similar statutory provisions in effect in any applicable jurisdiction.
(x) Seller Information. No certificate of an officer, statement or document furnished in writing or report delivered pursuant to the terms hereof by the Seller contains any untrue statement of a material fact or
omits to state any material fact necessary to make the certificate, statement, document or report not misleading.
(xi) Ordinary Course. The transactions contemplated by this Agreement and the other Basic Documents to which the Seller is a party are in the ordinary course of the Seller’s business.
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(xii) Solvency. The Seller is not insolvent, nor will the Seller be made insolvent by the transfer of the Receivables, nor does the Seller anticipate any pending insolvency.
(xiii) Legal Compliance. The Seller is not in violation of, and the execution and delivery of this Agreement and the other Basic Documents to which the Seller is a party by it and its performance and compliance
with the terms of this Agreement and the other Basic Documents to which the Seller is a party will not constitute a violation with respect to, any order or decree of any court or any order or regulation of any federal, state, municipal or
governmental agency having jurisdiction, which violation would materially and adversely affect the Seller’s condition (financial or otherwise) or operations or any of the Seller’s properties or materially and adversely affect the performance of any
of its duties under the Basic Documents.
(xiv) Creditors. The Seller is not selling the Receivables to the Depositor with any intent to hinder, delay or defraud any of its creditors.
(xv) Schedule of Receivables. The information set forth in Schedule I to this Agreement is true and correct in all material respects as of the close of business on the Cutoff Date.
(xvi) Marking Records. By the Transfer Date, the Seller will have caused its computer and accounting records relating to each Receivable to be marked to show that such Receivables have been sold to the Depositor
by the Seller and transferred and assigned by the Depositor to the Issuer in accordance with the terms of the Sale and Servicing Agreement and pledged by the Issuer to the Indenture Trustee in accordance with the terms of the Indenture.
(xvii) Computer Tape. The computer tape regarding the Receivables made available by the Seller to the Depositor is complete and accurate in all material respects as of the Cutoff Date.
(xviii) No Adverse Selection. No selection procedures (other than those specified herein) believed by the Seller to be adverse to the Noteholders or the Certificateholders were utilized in selecting the Receivables.
(xix) Intention to Sell. It is the intention of the Seller that the transfers and assignments herein contemplated constitute sales of the Receivables from the Seller to the Depositor and that the beneficial
interest in and title to the Receivables not be part of the debtor’s estate in the event of the appointment of a receiver or conservator for the Seller under any receivership, bankruptcy law, insolvency or banking law.
(xx) Servicing. Each Receivable has been serviced in conformity with all applicable laws, rules and regulations and in conformity
with the Seller’s
with the Seller’s
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policies and procedures which are consistent with customary prudent industry standards.
(xxi) Dealer Agreement. Each Dealer that sold a Receivable to the Seller (or BMW Bank) has entered into a Dealer Agreement and such Dealer Agreement, together with the assignment and related documentation signed
by the Dealer, constitutes the entire agreement between the Seller (or BMW Bank) and such Dealer with respect to the sale of such Receivable to the Seller (or BMW Bank). Each such Dealer Agreement is in full force and effect and is the legal,
valid and binding obligation of such Dealer; there have been no material defaults by the Seller (or BMW Bank) under such Dealer Agreement; the Seller (or BMW Bank) has fully performed all of its obligations under such Dealer Agreement; the Seller
(or BMW Bank) has not made any statements or representations to such Dealer (whether written or oral) inconsistent with any term of such Dealer Agreement; the purchase price (as specified in related Dealer Agreement) for such Receivable has been
paid in full, other than any dealer reserve, by the Seller (or BMW Bank); and any payment owed to such Dealer by the Seller (or BMW Bank) is a corporate obligation of the Seller (or BMW Bank).
(xxii) Receivable Files Complete. There exists a Receivable File pertaining to each Receivable and such Receivable File contains, without limitation, (A) a fully executed or electronically authenticated original of
the Receivable, (B) the original Lien Certificate or application therefor together with such other documents that the Seller shall keep on file in accordance with its customary procedures evidencing the security interest of the Seller in the
related Financed Vehicle, and (C) any and all other documents that the Servicer shall have kept on file in accordance with its customary procedures relating to a Receivable, an Obligor or a Financed Vehicle. Each of such documents that is required
to be signed by the Obligor has been signed by the Obligor in the appropriate spaces. All blanks on any form described in clauses (A), (B) and (C) of this paragraph have been properly filled in and each form has otherwise been correctly prepared
in all material respects. Notwithstanding the above, the complete Receivable File for each Receivable, (x) shall fulfill the documentation requirements of the Seller’s credit policies as in effect on the date of origination of such Receivable and
(y) is in possession of the Servicer and/or Custodian, as applicable, at the location set forth on Schedule II hereto except that, in the case of any Receivable constituting “electronic chattel paper”, the “authoritative copy” (as such term is used
in Section 9-105 of the UCC) of such Receivable shall be maintained by the Servicer in a computer system such that the Servicer maintains “control” (as such term is used in Section 9-105 of the UCC) over such authoritative copy on the Transfer
Date. The blanket power of attorney granted to the Indenture Trustee and the original Lien Certificate are the only documents necessary to permit the Indenture Trustee to submit the Lien Certificate for each Financed Vehicle for retitling in the
name of the Indenture
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Trustee as secured party in the event such retitling were required or otherwise permitted under the Basic Documents.
(b) The Seller makes the following representations and warranties with respect to the Receivables, on which the Depositor relies in accepting the Receivables and in transferring the Receivables to the Issuer under the Sale and Servicing
Agreement, and on which the Issuer relies in pledging the same to the Indenture Trustee. Such representations and warranties speak as of the execution and delivery of this Agreement and as of the Transfer Date, but shall survive the sale, transfer
and assignment of the Receivables to the Depositor, the subsequent sale, transfer and assignment of the Receivables by the Depositor to the Issuer pursuant to the Sale and Servicing Agreement and the pledge of the Receivables by the Issuer to the
Indenture Trustee pursuant to the Indenture.
(i) Each Receivable (a) was originated in the United States of America by the Seller (in the case of any Receivable originated through the “Lease to Loan” program), by BMW Bank (in the case of any Receivable
acquired by the Seller from BMW Bank) or by a Dealer located in the United States of America, in each case in the ordinary course of such originator’s business and in compliance with the Seller’s customary credit policies and practices as of the
date of origination or acquisition of such Receivable, (b) is payable in United States dollars, (c) has been fully and properly executed or electronically authenticated by the parties thereto, (d) except in the case of any Receivable originated
through the “Lease to Loan” program or acquired by the Seller from BMW Bank, has been (i) purchased by the Seller from the Dealer under an existing Dealer Agreement and (ii) validly assigned by such Dealer to the Seller, and (e) in the case of any
Receivable purchased by the Seller from BMW Bank, has been (i) purchased by the Seller from BMW Bank under an existing purchase agreement and (ii) validly assigned by BMW Bank to the Seller.
(ii) As of the Closing Date, the Seller has, or has started procedures that will result in the Seller having, a perfected, first priority security interest in the Financed Vehicle related to each Receivable, which
security interest was validly created and has been assigned by the Seller to the Depositor, and will be assigned by the Depositor to the Issuer. The Lien Certificate for each Financed Vehicle shows the Seller or BMW Bank named as the original
secured party (or a properly completed application for such Lien Certificate has been completed).
(iii) Each Receivable is on a form contract containing customary and enforceable provisions such that the rights and remedies of the holder thereof are adequate for realization against the collateral of the
benefits of the security, and represents the genuine, legal, valid and binding payment obligation of the Obligor thereon, enforceable by the holder thereof in accordance with its terms, except as enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium and other similar laws affecting the enforcement of creditors’ rights in general and by general
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principles of equity and consumer protection laws, regardless of whether such enforceability is considered in a proceeding in equity or at law.
(iv) Each Receivable (a) provides for fixed level monthly payments (provided that the payment in the last month of the term of the Receivable may be different from the level scheduled payments) that fully amortize
the Amount Financed by maturity and yield interest at the APR and (b) amortizes using the Simple Interest Method.
(v) To the Seller’s knowledge, each Receivable complied in all material respects at the time it was originated with all requirements of applicable laws.
(vi) None of the Receivables is due from the United States of America or any State or any agency, department, subdivision or instrumentality thereof.
(vii) To the best of the Seller’s knowledge, as of the Cutoff Date, no Obligor of a Receivable is or has been, since the origination of the related Receivable, the subject of a bankruptcy proceeding.
(viii) As of the Cutoff Date, none of the Receivables has been satisfied, subordinated or rescinded, nor has any Financed Vehicle been released from the lien of the related Receivable in whole or in part, and, to
the Seller’s knowledge, no Receivable is subject to any right of rescission, setoff, counterclaim, dispute or defense.
(ix) None of the terms of any Receivable has been deferred or otherwise modified except by instruments or documents identified in the related Receivable File.
(x) None of the Receivables has been originated in, or is subject to the laws of, any jurisdiction the laws of which would make unlawful, void or voidable the sale, transfer and assignment of such Receivable
under this Agreement or the Sale and Servicing Agreement or the pledge of such Receivable under the Indenture.
(xi) Immediately prior to the transfers and assignments herein contemplated, the Seller has good and marketable title to the Receivable free and clear of all Liens (other than pursuant to the Basic Documents) and,
immediately upon the transfer and assignment thereof, the Depositor will have good and marketable title to each Receivable, free and clear of all Liens (other than pursuant to the Basic Documents).
(xii) Each Receivable constitutes “tangible chattel paper” or “electronic chattel paper” within the meaning of the applicable UCC. With respect to any Receivable constituting “electronic chattel paper”, there is
only one “authoritative copy” of the Receivable and with respect to any Receivable
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constituting “tangible chattel paper”, there is no more than one original executed copy of such Receivable.
(xiii) Except for a payment that is no more than 29 days past due, no payment default exists on any Receivable as of the Cutoff Date.
(xiv) The Seller, in accordance with its customary procedures, has determined that the Obligor has obtained physical damage insurance covering each Financed Vehicle and, under the terms of the related Receivable,
the Obligor is required to maintain such insurance.
(xv) No Receivable has a maturity date later than the last day of the Collection Period immediately preceding the maturity date of the latest maturing class of Notes.
(xvi) Each Receivable had an original maturity of not less than 13 or more than 72 months.
(xvii) All of the Receivables, as of the Cutoff Date, are due from Obligors with garaging addresses within the United States of America, its territories and possessions.
(xviii) Each Receivable had a first scheduled payment due on or prior to 45 calendar days after the origination date thereof.
(xix) As of the Cutoff Date, each Receivable has a remaining term of at least 3 months and no more than 72 months.
(xx) As of the Cutoff Date, each Receivable has a remaining balance of at least $1,500.00.
(xxi) The Obligor with respect to each Receivable has made at least one scheduled payment.
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(c) Documents To Be Delivered by the Seller on the Transfer Date:
(i) Evidence of UCC Filing. On or prior to the Closing Date, the Seller shall record and file, at its own expense, a UCC-1 financing statement in the State of Delaware and in each other jurisdiction required by
applicable law, naming the Seller, as seller or debtor, and naming the Depositor, as secured party, describing the Receivables and the other assets assigned to the Depositor pursuant to Section 2.01 hereof meeting the requirements of the laws of
each such jurisdiction and in such manner as is necessary to perfect the sale, transfer, assignment and conveyance of the Receivables and such other assets to the Depositor. The Seller shall deliver to the Depositor a file-stamped copy or other
evidence satisfactory to the Depositor of such filing on or prior to the Transfer Date.
(ii) Opinions of Seller’s Counsel. On or prior to the Closing Date, the Depositor shall have received the opinions of counsel to the Seller, in form and substance satisfactory to the Depositor.
(iii) Other Documents. Such other documents as the Depositor may reasonably request.
(d) Other Transactions. The transactions contemplated by the Sale and Servicing Agreement, the Bank Receivables Purchase Agreement, the Indenture and the Trust Agreement to be consummated on the Transfer Date shall be consummated on such
date.
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(i) the Depositor has been duly formed and is validly existing as a limited liability company in good standing under the laws of the State of Delaware, with full power and authority to own its properties and
conduct its business as described in the Prospectus;
(ii) each of this Agreement, the Sale and Servicing Agreement, the Bank Receivables Purchase Agreement and the Trust Agreement has been duly authorized, executed and delivered by the Depositor and constitutes a
legal, valid and binding obligation of the Depositor, enforceable against the Depositor in accordance with its terms except as limited by bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, receivership, conservatorship or
similar laws relating to or affecting creditors’ rights generally or the rights of creditors, and except that such counsel need express no opinion as to the availability of equitable remedies or the enforceability of rights of indemnification for
violations of federal securities laws;
(iii) no consent, approval, authorization or order of, or filing with, any court or governmental agency or body is required for the consummation by the Depositor of the transactions contemplated herein or in the
Sale and Servicing Agreement, the Bank Receivables Purchase Agreement, the Trust Agreement or the Indenture, except such as may be required under the blue sky or securities laws of any jurisdiction in connection with the purchase and sale of the
Notes by the Underwriters, the filing of the UCC-1 financing statements relating to the conveyance of the Receivables and the Conveyed Assets (as defined herein) by the Seller to the Depositor and of the Receivables and the Conveyed Assets (as
defined in the Sale and Servicing Agreement) by the Depositor to the Issuer and of the Collateral by the Issuer to the Indenture Trustee for the benefit of the Noteholders and the filing of the UCC-1 financing statement relating to the security
interests in the Eligible Investments included in the Reserve Account, and such other approvals (which shall be specified in such opinion) as have been obtained and such filings as have been made or are in the process of being made; and
(iv) none of the issue and sale of the Notes and Certificates, the execution and delivery of this Agreement, the Bank Receivables Purchase Agreement, the Sale and Servicing Agreement or the Trust Agreement, the
consummation of any other of the transactions herein or therein contemplated or the fulfillment of the terms hereof or thereof will conflict with, result in a breach or violation of, or constitute a default under, the limited liability company
agreement or certificate of formation of the Depositor or the terms of any indenture or other agreement or instrument known to such counsel and to which the Depositor is a party or by which it is bound, or any judgment, order or decree known to
such counsel to be applicable to the Depositor of any court, regulatory body, administrative agency, governmental body, or arbitrator having jurisdiction over the Depositor.
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The Seller and the Depositor agree with each other, respectively, and the Indenture Trustee as follows:
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their employees, officers and directors harmless from and against all losses, liabilities, claims and damages of every kind and character, including any legal or other expenses
reasonably incurred, as incurred, resulting from or relating to or arising out of (i) the inaccuracy, nonfulfillment or breach of any representation, warranty, covenant or agreement made by the Seller in this Agreement, (ii) any legal action,
including, without limitation, any counterclaim, that has either been settled by the litigants or has proceeded to judgment by a court of competent jurisdiction, in either case to the extent it is based upon alleged facts that, if true, would
constitute a breach of any representation, warranty, covenant or agreement made by the Seller in this Agreement, or (iii) any failure of a Receivable to be originated in compliance with all applicable requirements of law. These indemnity obligations
shall be in addition to any obligation that the Seller may otherwise have.
ARTICLE VI MISCELLANEOUS PROVISIONS
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Upon receipt by the Seller of a Review Report from the Asset Representations Reviewer pursuant to Section 3.08 of the Asset Representations Review Agreement, the
Seller will evaluate such Review Report to determine whether any applicable Receivable should be repurchased as a result of a breach of any representation or warranty made by the Seller in Section 3.02(b).
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consent of the Noteholders holding all Outstanding Notes and Certificateholders holding all outstanding Certificates.
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SECTION 6.12 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS (OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW), AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.
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BMW FINANCIAL SERVICES NA, LLC
By:
Name:
Title:
By:
Name:
Title:
BMW FS SECURITIES LLC
By:
Name:
Title:
By:
Name:
Title:
SCHEDULE I
Schedule of Receivables
[Delivered to the Owner Trustee on the Closing Date.]
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SCHEDULE II
Location of Receivable Files
BMW Financial Services NA, LLC
0000 Xxxx Xxxx Xxxxx
Columbus, Ohio 43215
II-1
SCHEDULE III
In addition to the representations, warranties and covenants contained in this Agreement, the Seller hereby represents, warrants and covenants to the
Depositor as follows on the Closing Date:
1. This
Agreement creates a valid and continuing security interest (as defined in the applicable UCC) in the Receivables in favor of the Depositor, which security interest is prior to all other Liens, and is enforceable as such against creditors of and
purchasers from the Seller.
2. Each Receivable is secured by a first priority validly perfected security interest in the related Financed Vehicle in favor of the Seller, as secured party, or all necessary actions with respect to such Receivable have been taken or
will be taken to perfect a first priority security interest in the related Financed Vehicle in favor of the Seller, as secured party.
3. The
Receivables constitute “chattel paper” (including “electronic chattel paper” and “tangible chattel paper”) within the meaning of the applicable UCC.
4. The Seller
has caused or will have caused, within ten (10) days after the Closing Date, the filing of all appropriate financing statements in the proper filing office in the appropriate jurisdictions under applicable law in order to perfect the security
interest in the Receivables granted to the Depositor hereunder.
5. With
respect to Receivables that constitute tangible chattel paper, such tangible chattel paper is in the possession of the Servicer, and the Servicer (in its capacity as custodian) is holding such tangible chattel paper solely on behalf and for the
benefit of the Seller. With respect to Receivables that constitute electronic chattel paper, the Servicer has “control” of such electronic chattel paper within the meaning of
Section 9-105 of the applicable UCC and the Servicer (in its capacity as custodian) is maintaining control of such electronic chattel paper solely on behalf and for the benefit of the Seller. No person other than the Servicer has
“control” of any Receivable that is evidenced by electronic chattel paper.
6. The
Servicer, in its capacity as custodian, has in its possession (i) the original copy of each Receivable that constitutes tangible chattel paper and (ii) the “authoritative copy” of each Receivable that constitutes electronic chattel paper. With
respect to any Receivable constituting electronic chattel paper, there is only one “authoritative copy” of the Receivable and with respect to any Receivable constituting tangible chattel paper, there is no more than one original executed copy of
such Receivable.
7. Neither
the Seller nor a custodian or vaulting agent thereof holding any Receivable that is electronic chattel paper has communicated an “authoritative copy” (as such term is used in Section 9-105 of the UCC) of any loan agreement that constitutes or
evidences such Receivable to any Person other than the Servicer.
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8. The Seller
has not authorized the filing of, and is not aware of, any financing statements against the Seller that include a description of collateral covering the Receivables other than any financing statement (i) relating to the conveyance of the
Receivables by the Seller to the Depositor under the Receivables Purchase Agreement, (ii) relating to the conveyance of the Receivables by the Depositor to the Issuer under the Sale and Servicing Agreement, (iii) relating to the security interest
granted to the Indenture Trustee under the Indenture or (iv) that has been terminated. The Seller is not aware of any material judgment, ERISA or tax lien filings against the Seller.
9. The
Servicer, in its capacity as custodian, has in its possession or “control” (within the meaning of Section 9-105 of the applicable UCC) the record or records that constitute or evidence the Receivables. The
tangible chattel paper or electronic chattel paper that constitute or evidence the Receivables do not have any marks or notations indicating that they have been pledged, assigned or otherwise conveyed to any Person other than the Seller, the
Depositor, the Issuer or the Indenture Trustee. All financing statements filed or to be filed against the Seller, the Depositor and the Issuer in connection with this Agreement, the Sale and Servicing Agreement and the Indenture, respectively,
contain a statement to the following effect: “A purchase of or security interest in any collateral described in this financing statement will violate the rights of the Secured Party.”
10. Notwithstanding
any other provision of this Agreement or any other Basic Document, the perfection representations, warranties and covenants contained in this Schedule III shall be continuing, and remain in full force and effect until such time as all
obligations under the Basic Documents and the Notes have been finally and fully paid and performed.
11. The
parties to this Agreement shall provide the Rating Agencies with prompt written notice of any material breach of the perfection representations, warranties and covenants contained in this Schedule III, and shall not, without satisfying the
Rating Agency Condition with respect to each Rating Agency, waive a breach of any of such perfection representations, warranties or covenants.
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