BMW AUTO LEASING LLC, as Transferor, and BMW VEHICLE LEASE TRUST 2023-1, as Transferee FORM OF ISSUER SUBI CERTIFICATE TRANSFER AGREEMENT Dated as of February 15, 2023

 

 

BMW AUTO LEASING LLC,
as Transferor,

 

and

 

BMW VEHICLE LEASE TRUST 2023-1,
as Transferee

FORM OF ISSUER SUBI CERTIFICATE TRANSFER AGREEMENT

 

Dated as of February 15, 2023

 

 

TABLE OF CONTENTS

Page

 

This Issuer SUBI Certificate Transfer Agreement, dated as of February 15, 2023 (this “Agreement”), is between BMW Auto Leasing LLC, a Delaware limited liability company, as transferor (the “Transferor”), and BMW Vehicle Lease Trust 2023-1, a Delaware statutory trust (the “Issuer”), as transferee (in such capacity, the “Transferee”).

RECITALS

WHEREAS, BMW Manufacturing L.P. (“BMW LP”), as Grantor and UTI Beneficiary and BNY Mellon Trust of Delaware, formerly known as The Bank of New York (Delaware), as Trustee, have entered into that certain amended and restated trust agreement, dated as of August 30, 1995, as amended and restated as of September 27, 1996, as further amended as of May 25, 2000 and December 1, 2006 (the “Vehicle Trust Agreement”), pursuant to which Financial Services Vehicle Trust, a Delaware statutory trust (the “Vehicle Trust”), will take assignments and conveyances of and hold in trust various assets (the “Trust Assets”);

WHEREAS, the parties to the Vehicle Trust Agreement supplemented the Vehicle Trust Agreement with a supplement, dated as of February 15, 2023 (together with the Vehicle Trust Agreement, the “SUBI Trust Agreement”), to establish one special unit of beneficial interest (the “2023-1 SUBI”);

WHEREAS, in connection with the SUBI Trust Agreement a separate portfolio of leases, the vehicles that are leased under such leases and certain other related assets of the Vehicle Trust will be allocated to the 2023-1 SUBI;

WHEREAS, the Vehicle Trust has issued to BMW LP a certificate evidencing a beneficial interest in the 2023-1 SUBI (the “2023-1 SUBI Certificate”);

WHEREAS, BMW LP has sold, transferred and assigned, without recourse, all of BMW LP’s right, title and interest in and to the 2023-1 SUBI Certificate to the Transferor pursuant to that certain SUBI certificate transfer agreement, dated as of February 15, 2023 (the “SUBI Certificate Transfer Agreement”), between BMW LP and the Transferor;

WHEREAS, the Issuer was formed pursuant to that certain trust agreement, dated as of January 30, 2023, as amended and restated as of February 15, 2023 (the “Trust Agreement”), between the Transferor and Wilmington Trust, National Association, as owner trustee;

WHEREAS, the Transferor and the Transferee desire to enter into this Agreement to provide for the sale, transfer and assignment by the Transferor to the Transferee, without recourse, of all of the Transferor’s right, title and interest in and to the 2023-1 SUBI Certificate and the interest in the 2023-1 SUBI represented thereby; and

WHEREAS, immediately after the sale, transfer and assignment of the 2023-1 SUBI Certificate to the Issuer, the Issuer shall pledge the 2023-1 SUBI Certificate to U.S. Bank Trust Company, National Association, as Indenture Trustee (the “Indenture Trustee”) pursuant to that

certain indenture, dated as of February 15, 2023 (the “Indenture”), between the Issuer and the Indenture Trustee.

NOW, THEREFORE, in consideration of the promises and the mutual covenants herein contained, the parties hereto agree as follows:

ARTICLE ONE

DEFINITIONS

Section 1.01.      Definitions.  Capitalized terms used herein that are not otherwise defined shall have the meanings ascribed thereto in the SUBI Trust Agreement, the Trust Agreement or the Indenture, as the case may be.  Whenever used herein, unless the context otherwise requires, the following words and phrases shall have the following meanings:

“Agreement” means this Issuer SUBI Certificate Transfer Agreement, as amended or supplemented from time to time.

“Assets” has the meaning set forth in Section 2.01.

“Bankruptcy Code” means the United States Bankruptcy Code, 11 U.S.C. 101 et seq., as amended.

“Lien” has the meaning set forth in the Servicing Agreement.

“Transfer Price” has the meaning set forth in Section 2.01.

Section 1.02.      Interpretive Provisions.  For all purposes of this Agreement, except as otherwise expressly provided or unless the context otherwise requires, (i) terms used in this Agreement include, as appropriate, all genders and the plural as well as the singular, (ii) references to words such as “herein,” “hereof” and the like shall refer to this Agreement as a whole and not to any particular part, Article or Section within this Agreement, (iii) the term “include” and all variations thereof shall mean “include without limitation” and (iv) the term “proceeds” shall have the meaning ascribed thereto in the UCC.

ARTICLE TWO

TRANSFER OF 2023-1 SUBI CERTIFICATE

Section 2.01.      Transfer of 2023-1 SUBI Certificate.  In consideration of the Transferee’s delivery to, or upon the order of, the Transferor of $1,000,000,000 aggregate principal amount of Notes and the Trust Certificates (the “Transfer Price”), the Transferor does hereby absolutely sell, transfer, assign, and otherwise convey to the Transferee, without recourse, and the Transferee does hereby purchase and acquire, as of the date set forth above, all of the following (collectively, the “Assets”):

Section 2.02.      True Sale.  The parties hereto intend that the sale, transfer and assignment of the Assets constitute a true sale and assignment of the Assets such that any interest in and title to the Assets would not be property of the Transferor’s estate in the event the Transferor becomes a debtor in a case under any bankruptcy law.  To the extent that the conveyance of the Assets hereunder is characterized by a court or similar governmental authority as a financing, it is intended by the Transferor and the Transferee that the interest conveyed constitutes a first priority grant of a perfected security interest under the UCC as in effect in the State of New York by the Transferor to the Transferee to secure the security obligations of the Transferor under the Basic Documents.  The Transferor does hereby grant to the Transferee a security interest in all of its rights, title and privileges and interest in and to the Assets and the parties hereto agree that this Agreement constitutes a “security agreement” under all applicable law.

Section 2.03.      Representations and Warranties of the Transferor and the Transferee.

adverse effect on the condition, financial or otherwise, of the Transferor or would not have a material adverse effect on the ability of the Transferor to perform its obligations under this Agreement.

(vii)            Title to 2023-1 SUBI Certificate.  Immediately prior to the transfer of the 2023-1 SUBI Certificate pursuant to this Agreement, the Transferor (A) is the true and lawful owner of the 2023-1 SUBI Certificate and it has the legal right to transfer the 2023-1 SUBI Certificate; (B) has good and valid title to the 2023-1 SUBI Certificate and the 2023-1 SUBI Certificate is on the date hereof free and clear of all Liens; and (C) will convey good, valid and indefeasible title to the 2023-1 SUBI Certificate to the Transferee under this Agreement.

material terms or provisions of, or constitute (with or without notice or lapse of time) a default under, any indenture, agreement or other instrument to which the Transferee is a party or by which it may be bound or any of its properties are subject; nor result in the creation or imposition of any lien upon any of its properties pursuant to the terms of any material indenture, agreement or other instrument (other than this Agreement); nor violate any law or, to the knowledge of the Transferee, any order, rule or regulation applicable to it or its properties of any court or of any federal or state regulatory body, administrative agency or other governmental instrumentality having jurisdiction over the Transferee or any of its properties.

Section 2.04.      Financing Statement and Books and Records.

Section 2.05.      Acceptance by the Transferee.  The Transferee agrees to comply with all covenants and restrictions applicable to a Holder of the 2023-1 SUBI Certificate and the interest in the 2023-1 SUBI represented thereby, whether set forth in the 2023-1 SUBI Certificate, in the SUBI Trust Agreement or otherwise, and assumes all obligations and liabilities, if any, associated therewith.

ARTICLE THREE

MISCELLANEOUS

Section 3.01.      Amendment.  This Agreement may be amended from time to time in a writing signed by the parties hereto without the consent of the related Noteholders or the related Certificateholders, provided, that any such amendment will not, in the good faith judgment of the parties hereto, materially and adversely affect the interest of any of such holders.

Section 3.02.      Governing Law.  This Agreement shall be governed by and construed in accordance with the laws of the State of New York without regard to any otherwise applicable principles of conflicts of laws (other than Sections 5-1401 and 5-1402 of the New York General Obligations Law).

Section 3.03.      Severability.  If one or more of the covenants, agreements or provisions of this Agreement shall be for any reason whatever held invalid or unenforceable, such provisions shall be deemed severable from the remaining covenants, agreements and provisions of this Agreement, and such invalidity or unenforceability shall in no way affect the validity or enforceability of such remaining covenants, agreements and provisions, or the rights of any parties hereto.  To the extent permitted by law, the parties hereto waive any provision of law that renders any provision of this Agreement invalid or unenforceable in any respect.

Section 3.04.      Binding Effect.  The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their permitted successors and assigns.

Section 3.05.      Headings.  The Article and Section headings are for convenience of reference only and shall not define or limit any of the terms or provisions hereof.

Section 3.06.      Counterparts.  This Agreement may be executed in any number of counterparts, each of which so executed and delivered shall be deemed to be an original, but all of which counterparts shall together constitute but one and the same instrument. Each party agrees that this Agreement and any other documents to be delivered in connection herewith may be electronically signed, and that any electronic signatures appearing on this Agreement or such other documents are the same as handwritten signatures for the purposes of validity, enforceability, and admissibility to the fullest extent permitted by law.

Section 3.07.      Further Assurances.  Each party hereto shall do such acts, and execute and deliver to the other party such additional documents or instruments as may be reasonably requested in order to effect the purposes of this Agreement and to better assure and confirm unto the requesting party its rights, powers and remedies hereunder.

Section 3.08.      Third-Party Beneficiaries.  Except as otherwise provided in this Agreement, no Person shall have any right or obligation hereunder.

Section 3.09.      No Petition.  Each of the parties hereto covenants and agrees that prior to the date that is one year and one day after the date upon which all obligations and payments under the Securitized Financing have been paid in full, it will not (and, to the fullest extent permitted by applicable law, the Indenture Trustee shall not have the power to) institute against, or join any Person in instituting against the UTI Beneficiary (and the general partner of the UTI Beneficiary that is a partnership, or the managing member of the UTI Beneficiary that is a limited liability company), the Vehicle Trustee, the Vehicle Trust, any Special Purpose Affiliate (and the general partner of any Special Purpose Affiliate that is a partnership, or the managing member of any Special Purpose Affiliate that is a limited liability company) that holds a beneficial interest in the Vehicle Trust, the Transferor, the Transferee, the Indenture Trustee or any Affiliate or beneficiary of the same, any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding or other proceedings under any United States federal or state bankruptcy or similar law.

Section 3.10.      No Recourse.  Notwithstanding anything to the contrary contained in this Agreement, the obligations of the Transferor under this Agreement are non-recourse obligations of the Transferor, and shall be payable by the Transferor, solely from the proceeds of the 2023-1 SUBI Certificate and the Servicing Agreement, but only to the extent of any interest of the Transferor therein. No amount owing by the Transferor hereunder in excess of the liabilities that it is required to pay in accordance with the preceding sentence shall constitute a “claim” (as defined in Section 101(5) of the Bankruptcy Code) against it.  In the event that, notwithstanding the foregoing, the Transferee is deemed to have any interest in any Trust Assets or Other SUBI Assets that may be acquired by the Transferor from time to time, the Transferee agrees to fully subordinate all claims it may be deemed to have against the Trust Assets allocated to the UTI Portfolio and each other SUBI Portfolio.  The agreement set forth in the preceding sentence shall constitute a subordination agreement for purposes of Section 510(a) of the Bankruptcy Code.   No recourse shall be had for the payment of any amount owing hereunder or for the payment of any fee hereunder or any other obligation of, or claim against, the Transferor arising out of or based upon this Agreement, against any stockholder, employee, officer, agent, director or authorized person of the Transferor or Affiliate thereof; provided, however, that the foregoing shall not relieve any such person or entity of any liability they might otherwise have as a result of fraudulent actions or omissions taken by them.

Outstanding, the Indenture Trustee will have the right to exercise all powers, privileges and claims of the Transferee under this Agreement.

Section 3.12.      Limitation of Liability of Owner Trustee.  The parties hereto are put on notice and hereby acknowledge and agree that (a) this Agreement is executed and delivered by Wilmington Trust, National Association, not individually or personally but solely as Owner Trustee of the Issuer, in the exercise of the powers and authority conferred and vested in it, (b) each of the representations, undertakings and agreements herein made on the part of the Issuer is made and intended not as personal representations, undertakings and agreements by Wilmington Trust, National Association but is made and intended for the purpose of binding only the Issuer, (c) nothing herein contained shall be construed as creating any liability on Wilmington Trust, National Association, individually or personally, to perform any covenant either expressed or implied contained herein of the Issuer, all such liability, if any, being expressly waived by the parties hereto and by any Person claiming by, through or under the parties hereto, (d) Wilmington Trust, National Association has made no investigation as to the accuracy or completeness of any representations and warranties made by the Issuer in this Agreement and (e) under no circumstances shall Wilmington Trust, National Association be personally liable for the payment of any indebtedness or expenses of the Issuer or be liable for the breach or failure of any obligation, representation, warranty or covenant made or undertaken by the Issuer under this Agreement or any other related documents.

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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective officers duly authorized as of the day and year first above written.

BMW AUTO LEASING LLC,
as Transferor

BMW VEHICLE LEASE TRUST 2023-1,
as Transferee

In addition to the representations, warranties and covenants contained in the Issuer SUBI Certificate Transfer Agreement, BMW Auto Leasing LLC, as transferor (the “Transferor”), hereby represents, warrants, and covenants to BMW Vehicle Lease Trust 2023-1, as transferee (the “Transferee”), as follows on the Closing Date: