Exhibit 10.4
RECEIVABLES PURCHASE AGREEMENT
between
BMW FINANCIAL SERVICES NA, LLC,
as Seller,
and
BMW FS SECURITIES LLC,
as Depositor
Dated as of May 1, 2004
THIS RECEIVABLES PURCHASE AGREEMENT dated as of May 1, 2004, 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").
RECITALS
WHEREAS, in the regular course of its business, BMW FS has purchased
certain motor vehicle retail installment sale contracts and promissory notes
secured by new and used automobiles, light trucks and motorcycles from certain
motor vehicle dealers directly or indirectly through BMW Bank of North America;
WHEREAS, the Seller and the Depositor wish to set forth the terms pursuant
to which such contracts are to be sold by the Seller to the Depositor; and
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 2004-A (the "Issuer") pursuant to a Sale and
Servicing Agreement dated as of May 1, 2004 (the "Sale and Servicing
Agreement"), by and among the Issuer, the Depositor, the Seller, Servicer,
Administrator and Custodian, and Citibank N.A., as Indenture Trustee, 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 May 1,
2004 (the "Indenture"), by and between the Issuer and the Indenture Trustee.
NOW, THEREFORE, in consideration of the foregoing, other good and valuable
consideration and the mutual terms and covenants contained herein, the parties
hereto agree as follows:
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):
"Agreement" shall mean this Receivables Purchase Agreement, as the same may
be amended and supplemented from time to time.
"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.
"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.
"Prospectus Supplement" means the Prospectus Supplement dated May 4, 2004,
relating to the BMW Vehicle Owner Trust 2004-A in the form attached hereto as
Exhibit B.
"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. 333-103795 filed
by the Depositor with the Securities and Exchange Commission in the form in
which it became effective on April 17, 2003.
"Repurchase Event" shall have the meaning specified in Section 6.02.
"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 successor and assigns.
"Transfer Date" shall mean the Closing Date.
"Underwriters" means each of Banc of America Securities LLC, ▇.▇. ▇▇▇▇▇▇
Securities Inc., Barclays Capital Inc., Citigroup Global Markets Inc. and Credit
Suisse First Boston LLC.
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"Underwriting Agreement" means the Underwriting Agreement dated May 4,
2004, relating to BMW Vehicle Owner Trust 2004-A among BMW FS, the Depositor and
Banc of America Securities LLC, as representative of the Underwriters.
ARTICLE II
CONVEYANCE OF RECEIVABLES
SECTION 2.01. Conveyance of Receivables.
(a) In consideration of the Depositor's delivery to or upon the order
of the Seller on the Closing Date of $1,500,120,934.29 (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:
(i) the Receivables and all moneys received thereon after the
close of business on April 30, 2004;
(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 any other proceeds with
respect to the Receivables from claims on any 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 of a
mere security interest to secure a borrowing, the Seller shall be deemed to have
hereby granted to the Depositor a first priority security
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interest in all right, title and interest of the Seller in and to the Conveyed
Assets 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,
and this Agreement shall constitute a security agreement under applicable law.
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.
SECTION 2.02. The Closing. The sale and purchase of the Receivables shall
take place at a closing at the offices of Weil, Gotshal & ▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ on the Closing Date, simultaneously with the
closing under (a) the Sale and Servicing Agreement, (b) the Indenture and (c)
the Trust Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.01. Representations and Warranties of the Depositor. The
Depositor hereby represents and warrants as follows to the Seller and the
Indenture Trustee as of the date hereof and the Transfer Date:
(a) Organization and Good Standing. The Depositor is duly organized
and validly existing as a limited liability company in good standing 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.
(b) Due Qualification. The Depositor is duly qualified to do business
as a foreign limited liability company in good standing, and has obtained all
necessary licenses and approvals in all jurisdictions, including a license
pursuant to the Pennsylvania Motor Vehicle Sales Finance Act and the Maryland
Sales Finance Act, where the failure to do so would materially and adversely
affect the Depositor's ability to acquire the Receivables or the validity or
enforceability of the Receivables.
(c) Power and Authority. The Depositor has the corporate power and
authority to execute and deliver this Agreement and the other Basic Documents to
which it is a party and to carry out their respective terms; the Depositor has
full power and
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authority to sell and assign the property to be sold and assigned to and
deposited with the Issuer, and the Depositor shall have duly authorized such
sale and assignment to the Issuer by all necessary corporate action; and the
execution, delivery and performance of this Agreement and the other Basic
Documents to which the Depositor is a party have been duly authorized by the
Depositor by all necessary corporate action.
(d) Binding Obligation. This Agreement and the other Basic Documents
to which the Depositor is a party, when duly executed and delivered by the other
parties hereto and thereto shall constitute legal, valid and binding obligations
of the Depositor, enforceable against the Depositor in accordance with their
respective terms, except as the enforceability thereof may be limited by
bankruptcy, insolvency, reorganization or similar laws now or hereafter in
effect relating to or affecting creditors' rights generally and to general
principals or equity (whether applied in a proceeding at law or in equity).
(e) No Violation. The consummation of the transactions contemplated
by this Agreement and the fulfillment of the terms hereof do not conflict with,
result in any breach of any of the terms and provisions of, or constitute (with
or without notice or lapse of time or both) a default under, the limited
liability company agreement of the Depositor, or any indenture, agreement or
other instrument to which the Depositor is a party or by which it is bound, or
violate any law, rules or regulation applicable to the Depositor of any court or
federal or state regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Depositor.
(f) No Proceedings. There are no proceedings or investigations
pending or, to the Depositor's knowledge, threatened against the Depositor
before any court, regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Depositor or its properties (i)
asserting the invalidity of this Agreement or any other Basic Document to which
the Depositor is a party, (ii) seeking to prevent the consummation of any of the
transactions contemplated by this Agreement or any other Basic Document to which
the Depositor is a party or (iii) seeking any determination or ruling that might
materially and adversely affect the performance by the Depositor of its
obligations under, or the validity or enforceability of, this Agreement or any
other Basic Document to which the Depositor is a party.
(g) No Consents. The Depositor 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.
(h) The Depositor, and the Securities being offered in this
Transaction, meets the requirements for use of Form S-3 under the Securities Act
of 1933, as amended (the "Act"), and has filed with the Securities and Exchange
Commission (the "Commission") the Registration Statement on such Form, including
a related base
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prospectus and a preliminary prospectus supplement, for the registration under
the Act of the offering and sale of the Securities.
(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.
SECTION 3.02. Representations and Warranties of the Seller.
(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
and except as enforcement of such terms may be limited by receivership,
conservatorship and supervisory powers of bank regulatory agencies
generally.
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(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, 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 to
which the Seller is a party, (ii) seeking to prevent the consummation of
any of the transactions contemplated by this Agreement or any other Basic
Document to which the Seller is a party 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 to which the Seller is a party.
(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 ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇.
(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
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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.
(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.
(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 and
with respect to the representations and warranties set forth in paragraphs (lii)
through (lviii) below, shall be non-waivable.
(i) Characteristics of Receivables. Each Receivable (A) was
originated in the United States of America by a Dealer located in the
United States of America for the retail sale of a Financed Vehicle in the
ordinary course of such Dealer's business in accordance with the Seller's
credit policies as of the date of origination or acquisition of the related
Receivable, is payable in United States dollars, has been fully and
properly executed by the parties thereto, has been purchased by the Seller
from such Dealer under an existing Dealer Agreement and has been validly
assigned by such Dealer to the Seller or by such
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Dealer to BMW Bank, which has validly assigned the same to the Seller,
except that certain Receivables originated through the "Lease to Loan"
program were not originated by Dealers, but directly by the Seller or BMW
Bank, (B) has created or shall create a valid, subsisting and enforceable
first priority perfected security interest in favor of the Seller in the
Financed Vehicle, which security interest is assignable by the Seller to
the Depositor, and by the Depositor to the Issuer, (C) contains 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, (D) 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 (E) amortizes using
the Simple Interest Method.
(ii) Compliance with Law. Each Receivable and the sale of
the related Financed Vehicle complied at the time it was originated or
made, and at the time of execution of this Agreement complies, in all
material respects with all requirements of applicable federal, state and,
to the best knowledge of the Seller, local laws, rulings and regulations
thereunder, including usury laws, the Federal Truth-in-Lending Act, the
Equal Credit Opportunity Act, the Fair Credit Billing Act, the Fair Credit
Reporting Act, the Fair Debt Collection Practices Act, the Federal Trade
Commission Act, the ▇▇▇▇▇▇▇▇-▇▇▇▇ Warranty Act, the Federal Reserve Board's
Regulations "B" and "Z," the Servicemembers Civil Relief Act of 2003, as
amended (the "Relief Act"), the Military Reservist Relief Act of 1991 and
state adaptations of the National Consumer Act and of the Uniform Consumer
Credit Code, and other consumer credit laws and equal credit opportunity
and disclosure laws applicable to such Receivable.
(iii) Binding Obligation. Each Receivable represents the
genuine, legal, valid and binding payment obligation of the Obligor
thereon, enforceable by the holder thereof in accordance with its terms,
except (A) as enforceability thereof may be limited by bankruptcy,
insolvency, reorganization or similar laws affecting the enforcement of
creditors' rights generally and by equitable limitations on the
availability of specific remedies, regardless of whether such
enforceability is considered in a proceeding in equity or at law and (B) as
such Receivable may be modified by the application after the Transfer Date
of the Relief Act or the Military Reservist Relief Act of 1991.
(iv) No Government Obligor. No Receivable is due from the
United States of America or any State or any agency, department,
subdivision or instrumentality thereof.
(v) Obligor Bankruptcy. To the best of the Seller's
knowledge, as of the Cutoff Date with respect to the Receivables, no
Obligor is or has been, since the origination of the related Receivable,
the subject of a bankruptcy proceeding.
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(vi) 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.
(vii) 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.
(viii) 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.
(ix) 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.
(x) [Reserved].
(xi) One Original. There is only one original executed copy
of each Receivable.
(xii) Receivables in Force. No Receivable 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. None of the terms
of any Receivable has been waived, altered or modified in any respect since
its origination, except by instruments or documents identified in the
related Receivable File. No Receivable has been modified as a result of the
application of the Relief Act or the Military Reservist Relief Act, as
amended.
(xiii) Lawful Assignment. No Receivable 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 pledge of such Receivable under the
Indenture.
(xiv) Title. 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.
Immediately prior to the Closing Date, no Receivable has been sold,
transferred, assigned or pledged by the Seller to any Person other than to
the Depositor or pursuant to this Agreement (or by the Depositor to any
other Person other than to the Issuer pursuant to the Sale and Servicing
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Agreement). Immediately prior to the transfers and assignments herein
contemplated, the Seller has good and marketable title to each Receivable
free and clear of all Liens, and, immediately upon the transfer thereof,
the Depositor shall have good and marketable title to each Receivable, free
and clear of all Liens and, immediately upon the transfer thereof from the
Depositor to the Issuer pursuant to the Sale and Servicing Agreement, the
Issuer shall have good and marketable title to each Receivable, free and
clear of all Liens and, immediately upon the pledge thereof from the Issuer
to the Indenture Trustee pursuant to the Indenture, the Indenture Trustee
shall have a first priority perfected security interest in each Receivable.
(xv) Security Interest in Financed Vehicle. Immediately
prior to its sale, assignment and transfer to the Depositor pursuant to
this Agreement, each Receivable is secured by a first priority perfected
security interest in the related Financed Vehicle in favor of BMW FS as
secured party, or all necessary and appropriate actions have been commenced
that will result in the valid perfection of a first priority security
interest in such Financed Vehicle in favor of the BMW FS as secured party.
The Lien Certificate for each Financed Vehicle shows, or if a new or
replacement Lien Certificate is being applied for with respect to such
Financed Vehicle such Lien Certificate shall be received within 120 days of
the Closing Date and shall show, BMW FS or a predecessor in interest named
as the original secured party under each Receivable as the holder of a
first priority security interest in such Financed Vehicle. With respect to
each Receivable for which the Lien Certificate has not yet been returned
from the Registrar of Titles, BMW FS has received written evidence that
such Lien Certificate showing BMW FS or BMW Bank as first lienholder has
been applied for. Each Dealer's security interest in any Receivable
originated by such Dealer has been validly assigned by the Dealer to BMW FS
or to BMW Bank, which has validly assigned it to BMW FS. BMW FS' security
interest has been validly assigned to the Depositor pursuant to this
Agreement. BMW FS has the legal right to repossess or recover by legal
process the Financed Vehicle in its name.
(xvi) All Filings Made. All filings (including UCC filings)
required to be made in any jurisdiction to give the Issuer a first
perfected ownership interest in the Receivables and the Indenture Trustee a
first priority perfected security interest in the Receivables have been
made or will be made on the Closing Date.
(xvii) No Defenses. No Receivable is subject to any right of
rescission, setoff, counterclaim, dispute or defense, including the defense
of usury, whether arising out of transactions concerning the Receivable or
otherwise, and the operation of any terms of the Receivable or the exercise
by the Seller or the Obligor of any right under the Receivable will not
render the Receivable unenforceable in whole or in part, and no such right
of rescission, setoff, counterclaim, dispute or defense, including the
defense of usury, has been asserted with respect thereto.
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(xviii) No Default. There has been no default, breach,
violation or event permitting acceleration under the terms of any
Receivable (other than payment delinquencies of not more than 30 days) as
of the Cutoff Date, and no condition exists or event has occurred and is
continuing that with notice, the lapse of time or both would constitute a
default, breach, violation or event permitting acceleration under the terms
of any Receivable, and there has been no waiver of any of the foregoing. On
or prior to the Transfer Date, no Financed Vehicle has been repossessed.
(xix) Insurance. 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.
(xx) Final Scheduled Maturity Date. No Receivable has a
final scheduled payment date later than six months prior to the Class B
Final Scheduled Payment Date.
(xxi) Certain Characteristics of the Receivables. As of the
Cutoff Date, (A) each Receivable had an original maturity of not less than
12 or more than 66 months and (B) no Receivable was more than 30 days past
due.
(xxii) No Foreign Obligor. All of the Receivables are due from
Obligors with billing addresses within the United States of America, its
territories and possessions.
(xxiii) No Extensions. The number or timing of scheduled
payments has not been changed on any Receivable on or before the Closing
Date, except as reflected on the computer tape delivered in connection with
the sale of the Receivables.
(xxiv) Scheduled Payments. Each Receivable had a first
scheduled payment due on or prior to 45 calendar days after the origination
date thereof. Each Obligor has been instructed to make all scheduled
payments to BMW FS. To the best knowledge of the Seller, each Obligor has
paid the entire down payment called for by the Contract.
(xxv) Receivable Files Complete. There exists a Receivable
File pertaining to each Receivable and such Receivable File contains,
without limitation, (A) a fully executed 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
12
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, 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 Trustee as secured party in the event such retitling were
required or otherwise permitted under the Basic Documents.
(xxvi) Receivables Not Assumable. No Receivable is assumable
by another person in a manner which would release the Obligor thereof from
such Obligor's obligations to the Seller with respect to such Receivable.
(xxvii) Tax Liens. To the best of the Seller's knowledge, there
is no Lien against any Financed Vehicle for delinquent taxes.
(xxviii) No Impairment. The Seller has not done anything to
convey any right to any person that would result in such person having a
right to payments due under a Receivable or otherwise to impair the rights
of the Depositor in any Receivable or the proceeds thereof.
(xxix) Servicing. Each Receivable has been serviced in
conformity with all applicable laws, rules and regulation and in conformity
with the Seller's policies and procedures which are consistent with
customary, prudent industry standards.
(xxx) No Liens. No Liens or claims have been filed for work,
labor, or materials relating to a Financed Vehicle that are prior to, or
equal or coordinate with, the security interest in the Financed Vehicle
granted by the related Receivable.
(xxxi) APR. No Receivable has an APR of less than 0% and the
weighted average coupon on the pool of Receivables is at least 4.77%.
(xxxii) Remaining Term. Each Receivable has a remaining term of
at least 3 months and no more than 66 months.
(xxxiii) Seasoning. The weighted average number of months since
the initial installment due date for the Receivables is at least three
months.
(xxxiv) Remaining Balance. Each Receivable has a remaining
balance of at least $1008.23.
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(xxxv) New Vehicles. At least 43.87% of the aggregate
principal balance of the Receivables is secured by Financed Vehicles which
were new at the date of origination.
(xxxvi) No Repossessions. No Financed Vehicle has been
repossessed prior to the Transfer Date.
(xxxvii) Initial Payment. The Obligor with respect to each
Receivable has made at least one scheduled payment.
(xxxviii) No Proceedings. As of the Cutoff Date, there are no
proceedings pending, or to the best of the Seller's knowledge, threatened,
wherein the Obligor or any governmental agency has alleged that any
Receivable is illegal or unenforceable.
(xxxix) Dealer Agreement. Each Dealer from whom the Seller (or
BMW Bank) purchases Receivables directly has entered into a Dealer
Agreement with the Seller (or BMW Bank) providing for the sale of
Receivables from time to time by such Dealer to the Seller (or BMW Bank).
Each Dealer Agreement is substantially in the form attached to the Sale and
Servicing Agreement as Exhibit D, except for immaterial modifications or
deviations from the Dealer Agreement. Such modifications and deviations
from the Dealer Agreement will not have a material adverse effect on the
Noteholders.
(xl) Obligations Fulfilled. To the best of its knowledge,
BMW FS has duly fulfilled all obligations to be fulfilled on its part under
or in connection with the origination, acquisition and assignment of the
Receivables.
(xli) No Consent. To the best of the Seller's knowledge, no
notice to or consent from any Obligor is necessary to effect the
acquisition of the Receivables by the Depositor or the Trust or the pledge
of the Receivables by the Trust to the Indenture Trustee.
(xlii) No Transfer Taxes. The sale, transfer, assignment and
conveyance of the Receivables by the Seller pursuant to this Agreement is
not subject to and will not result in any tax, fee or governmental charge
payable by the Depositor, the Seller, the Issuer or the Indenture Trustee
to any federal, state or local government ("Transfer Taxes") other than
Transfer Taxes which have or will be paid by the Seller as due. In the
event the Depositor, the Issuer or the Indenture Trustee receives actual
notice of any Transfer Taxes arising out of the transfer, assignment and
conveyance of the Receivables, on written demand by the Depositor, the
Issuer or the Indenture Trustee, or upon the Seller's otherwise being given
notice thereof by the Depositor, the Issuer or the Indenture Trustee, the
Seller shall pay, and otherwise indemnify and hold the Depositor, the
Issuer and the Indenture Trustee harmless, on an after-tax basis, from and
against any and all such Transfer Taxes (it being understood that the
Depositor, the
14
Noteholders, the Indenture Trustee and the Issuer shall have no obligation
to pay such Transfer Taxes).
(xliii) Aggregate Balance. The aggregate principal balance of
the Receivables as of the Cutoff Date is equal to $1,500,120,934.29.
(xliv) Geographic Distribution. No more than 4.28% of the
aggregate principal balance of the Receivables as of the Cutoff Date is
attributable to Receivables with Obligors having a billing address in any
single State other than California, Texas, Florida, New York, and New
Jersey, which represent no more than 23.22%, 8.01%, 6.62%, 6.16% and 6.09%,
respectively.
(xlv) No Advances. No advances have been made to Obligors in
order to meet any representation and warranties herein set forth; provided,
however, that Receivables may have had up to four extensions prior to the
Cutoff Date, subject to the following: (A) each such extension was made in
conformity with the Seller's "Extension Policy" and (B) each extended
Receivable satisfies in all material respects all applicable requirements
under BMW FS' credit and collection policies as of the date of its
origination.
(xlvi) Amount Financed. At the time each Receivable was
acquired from the Dealer, the Amount Financed was fully disbursed. There is
no requirement for future advances of principal thereunder, and all fees
and expenses in connection with the origination of such Receivable have
been paid.
(xlvii) Tape. The computer tape from which the selection of the
Receivables being acquired on the Closing Date was made available to the
accountants that are providing a comfort letter to the Depositor, the
Underwriters and the Noteholders in connection with the numerical
information regarding the Receivables and the Notes contained in the
Prospectus Supplement and such information in the Prospectus Supplement
with respect to the Receivables and the Notes was complete and accurate as
of its date and includes a description of the same Receivables that are
described in Schedule I to this Agreement.
(xlviii) Insurance. In connection with the purchase of each
Receivable, the Seller (or BMW Bank) required the related Dealer to furnish
evidence that the related Financed Vehicle was covered by a physical damage
insurance policy (i) in an amount at least equal to the lesser of (a) the
actual cash value of the related Financed Vehicle or (b) the unpaid
principal balance owing on such Receivable, (ii) naming the Seller (or BMW
Bank) as a loss payee and (iii) insuring against loss and damage due to
fire, theft, transportation, collision and other risks generally covered by
comprehensive and collision coverage.
(xlix) Dealer Agreement Binding. Each Dealer that sold a
Receivable to BMW FS (or BMW Bank) has entered into the Dealer Agreement
and such Dealer Agreement, together with the assignment and related
15
documentation signed by the Dealer, constitutes the entire agreement
between BMW FS (or BMW Bank) and the related Dealer with respect to the
sale of such Receivable to BMW FS (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 BMW FS (or BMW
Bank) under such Dealer Agreement; BMW FS (or BMW Bank) has fully performed
all of its obligations under such Dealer Agreement; BMW FS (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 the applicable Dealer Agreement) for such
Receivable has been paid in full, other than any dealer reserve, by BMW FS
(or BMW Bank); and any payment owed to such Dealer by BMW FS (or BMW Bank)
is a corporate obligation of BMW FS (or BMW Bank).
(l) Good Working Order. Each Receivable requires the
Obligor to maintain the related Financed Vehicle in good and workable order
and to obtain and maintain physical damage insurance on the related
Financed Vehicle subject thereto and to name the Seller as a loss payee.
(li) No Consumer Lease. No Receivable constitutes a
"consumer lease" under either (a) the UCC as in effect in the jurisdiction
whose law governs the Receivable or (b) the Consumer Leasing Act, 15 USC
1667.
(lii) Valid Security Interest. 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 as against creditors of and
purchasers from the Seller.
(liii) Perfection. The Seller has taken all steps necessary to
perfect its security interest against the Obligors in the property securing
the Receivables.
(liv) Tangible Chattel Paper. Each Receivable constitutes
"tangible chattel paper" within the meaning of the applicable UCC.
(lv) Good and Marketable Title. The Seller owns and has good
and marketable title to the Receivables free and clear of any Lien, claim
or encumbrance of any Person.
(lvi) Filing of Financing Statements. The Seller has caused
or will have caused, within ten days, 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.
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(lvii) Other Financing Statements. Other than the security
interest granted to the Depositor pursuant to this Agreement, the Seller
has not pledged, assigned, sold, granted a security interest in, or
otherwise conveyed any of the Receivables. 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 relating to the security interest
granted to the Depositor hereunder or that has been terminated. The Seller
is not aware of any judgment or tax lien filings against the Seller.
(lviii) Original Contracts. The Seller has in its possession
all original copies of the Contracts that constitute or evidence the
Receivables. The Contracts 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 Depositor. All
financing statements filed or to be filed against the Seller in favor of
the Depositor in connection herewith describing the Receivables 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 Depositor."
ARTICLE IV
CONDITIONS
SECTION 4.01. Conditions to Obligation of the Depositor. The obligation of
the Depositor to purchase the Receivables is subject to the satisfaction of the
following conditions:
(a) Representations and Warranties True. The representations and
warranties of the Seller hereunder shall be true and correct on the Transfer
Date with the same effect as if then made, and the Seller shall have performed
all obligations to be performed by it hereunder on or prior to the Transfer
Date.
(b) Computer Files Marked. The Seller shall, at its own expense, on
or prior to the Transfer Date, indicate in its computer files that the
Receivables have been sold to the Depositor pursuant to this Agreement and
deliver to the Depositor the Schedule of Receivables, certified by the Seller's
President, Vice President or Treasurer to be true, correct and complete.
(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 the State of Ohio and in each other
jurisdiction required by applicable law, executed by the Seller, as seller
or debtor, and naming the Depositor, as secured party, describing the
Receivables and the other assets
17
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, as to the
matters set forth in Exhibit A hereto and such other matters as the
Depositor has heretofore requested or may reasonably request.
(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 Indenture and the Trust Agreement to be consummated on
the Transfer Date shall be consummated on such date.
SECTION 4.02. Conditions to Obligation of the Seller. The obligation of
the Seller to sell the Receivables to the Depositor is subject to the
satisfaction of the following conditions:
(a) Representations and Warranties True. The representations and
warranties of the Depositor hereunder shall be true and correct on the Transfer
Date with the same effect as if then made, and the Depositor shall have
performed all obligations to be performed by it hereunder on or prior to the
Transfer Date.
(b) Receivables Purchase Price. On the Transfer Date, the Depositor
shall have delivered to the Seller the Purchase Price.
(c) Opinion of Counsel. The Depositor shall have furnished to the
Seller an Opinion of Counsel, dated the Closing Date, to the effect that:
(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
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
18
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
this Agreement, the Sale and Servicing 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 other
Trust Property by the Seller to the Depositor and of the Receivables and
the other Trust Property by the Depositor to the Trust and by the Trust 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;
(iv) none of the issue and sale of the Notes and Certificates,
the execution and delivery of this 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 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; and
(v) the Registration Statement, and each amendment thereto, as
of its effective date (other than any financial, numerical or statistical
information contained or incorporated by reference therein, as to which
such counsel need express no opinion) complied as to form in all material
respects with the requirements of the Act and the Rules and Regulations.
(d) Other Transactions. The transactions contemplated by the Sale and
Servicing Agreement, the Indenture and the Trust Agreement to be consummated on
the Transfer Date shall be consummated on such date.
ARTICLE V
COVENANTS OF THE SELLER AND THE DEPOSITOR
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The Seller and the Depositor agree with each other, respectively, and the
Indenture Trustee as follows:
SECTION 5.01. Protection of Right, Title and Interest.
(a) Filings. The Seller shall cause at its own expense all financing
statements and continuation statements and any other necessary documents
covering the right, title and interest of the Seller, the Depositor, the Trust
and the Indenture Trustee, respectively, in and to the Receivables and the other
property included in the Trust Estate to be promptly filed and at all times to
be kept recorded, registered and filed, all in such manner and in such places as
may be required by law fully to preserve and protect the right, title and
interest of the Depositor hereunder, the Trust under the Sale and Servicing
Agreement and the Indenture Trustee under the Indenture in and to the
Receivables and the other property included in the Trust Estate. The Seller
shall deliver to the Depositor and the Indenture Trustee file stamped copies of,
or filing receipts for, any document recorded, registered or filed as provided
above, as soon as available following such recordation, registration or filing.
The Depositor shall cooperate fully with the Seller in connection with the
obligations set forth above and will execute any and all documents reasonably
required to fulfill the intent of this paragraph.
(b) Name Change. If the Seller makes any change in its jurisdiction
of organization (within the meaning of the applicable UCC), name or corporate
structure that would make any financing statement or continuation statement
filed in accordance with paragraph (a) above seriously misleading within the
applicable provisions of the UCC or any title statute, the Seller shall give the
Depositor, the Indenture Trustee and the Owner Trustee written notice thereof at
least 45 days prior to such change and shall promptly file such financing
statements or amendments as may be necessary to continue the perfection of the
Depositor's interest in the Conveyed Assets.
SECTION 5.02. Other Liens or Interests. Except for the conveyances
hereunder and pursuant to the Basic Documents, the Seller shall not sell,
pledge, assign or transfer to any Person, or grant, create, incur, assume, or
suffer to exist any Lien on, or any interest in, to or under the Receivables,
and the Seller shall defend the right, title and interest of the Depositor, the
Trust and the Indenture Trustee in, to and under the Receivables against all
claims of third parties claiming through or under the Seller.
SECTION 5.03. Costs and Expenses. BMW FS agrees to pay all reasonable
costs and disbursements in connection with the perfection, as against all third
parties, of the Depositor's, the Issuer's and the Indenture Trustee's right,
title and interest in and to the Receivables and the other property included in
the Trust Estate.
SECTION 5.04. Hold Harmless. BMW FS shall protect, defend, indemnify and
hold the Depositor, the Issuer, the Underwriters and their respective assigns
and 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
20
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
SECTION 6.01. Obligations of Seller. The obligations of the Seller under
this Agreement shall not be affected by reason of any invalidity, illegality or
irregularity of any Receivable.
SECTION 6.02. Repurchase Events. The Seller hereby covenants and agrees
with the Depositor for the benefit of the Depositor, the Indenture Trustee, the
Issuer, the Owner Trustee, the Certificateholders and the Noteholders that the
occurrence of a breach of any of the Seller's representations and warranties
contained in Section 3.02(a)(ii) and 3.02(b) that materially and adversely
affects the interests of the Issuer, the Indenture Trustee, the Owner Trustee,
the Certificateholders or the Noteholders in any Receivable, without regard to
any limitation set forth in such representation or warranty concerning the
knowledge of the Seller as to the facts stated therein, shall constitute an
event obligating the Seller to repurchase the Receivables to which such failure
or breach is applicable (each, a "Repurchase Event"), at the Purchase Amount,
from the Depositor or from the Issuer, as applicable, unless any such failure or
breach shall have been cured by the last day of the first Collection Period
following the discovery or notice thereof by or to the Seller or the Servicer.
SECTION 6.03. Depositor Assignment of Repurchased Receivables. With
respect to all Receivables repurchased by the Seller pursuant to this Agreement,
the Depositor shall assign, without recourse, representation or warranty, to the
repurchasing Seller all of the Depositor's right, title and interest in and to
such Receivables and all security and documents relating thereto.
SECTION 6.04. Transfer to the Issuer. The Seller acknowledges and agrees
that (1) the Depositor will, pursuant to the Sale and Servicing Agreement,
transfer and assign the Receivables and assign its rights under this Agreement
with respect thereto to the Issuer and, pursuant to the Indenture, the Issuer
will pledge the Receivables to the Indenture Trustee, and (2) the
representations and warranties contained in this Agreement and the rights of the
Depositor under this Agreement, including under Section 6.02, are intended to
benefit the Issuer and the Noteholders. The Seller hereby consents to such
transfers and assignments and agrees that enforcement of a right or remedy
hereunder by
21
the Indenture Trustee, the Owner Trustee or the Issuer shall have the same force
and effect as if the right or remedy had been enforced or executed by the
Depositor.
SECTION 6.05. Amendment. This Agreement may be amended from time to time,
with prior written notice to the Rating Agencies, but without the consent of the
Noteholders or the Certificateholders, by a written amendment duly executed and
delivered by the Seller and the Depositor, for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Agreement or of modifying in any manner the rights of Noteholders or
Certificateholders; provided that such amendment shall not, as evidenced by an
Opinion of Counsel, materially and adversely affect the interest of any
Noteholder or Certificateholder; provided further, that such action shall not be
deemed to adversely affect in any material respect the interests of any
Noteholder or Certificateholder and no Opinion of Counsel to that effect shall
be required if the person requesting the amendment obtains a letter from the
Rating Agencies stating that the amendment would not result in the downgrading
or withdrawal of the ratings of then assigned to the Notes or the Certificates.
This Agreement may also be amended by the Seller and the Depositor, with prior
written notice to the Rating Agencies and the prior written consent of Holders
of Notes evidencing at least a majority of the Outstanding Amount of the
Controlling Class of Notes and the Holders (as defined in the Trust Agreement)
of outstanding Certificates evidencing not less than a majority of the
outstanding aggregate Certificate Percentage Interest (as defined in the Trust
Agreement), for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Agreement or of modifying in
any manner the rights of the Noteholders or the Certificateholders; provided,
however, that no such amendment may (i) increase or reduce in any manner the
amount of, or accelerate or delay the timing of, collections of payments on
Receivables or distributions that are required to be made for the benefit of
Noteholders or Certificateholders or (ii) reduce the aforesaid percentage of the
Notes or the Certificates that is required to consent to any such amendment,
without the consent of the Holders of all the outstanding Notes and
Certificates.
SECTION 6.06. Waivers. No failure or delay on the part of the Depositor,
the Issuer or the Indenture Trustee in exercising any power, right or remedy
under this Agreement or the ▇▇▇▇ of Sale shall operate as a waiver thereof, nor
shall any single or partial exercise of any such power, right or remedy preclude
any other or further exercise thereof or the exercise of any other power, right
or remedy.
SECTION 6.07. Notices. All demands, notices and communications under this
Agreement shall be in writing, personally delivered, faxed and followed by first
class mail, or mailed by certified mail, return receipt requested, and shall be
deemed to have been duly given upon receipt (a) in the case of the Depositor, to
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Vice
President of Finance and Risk; (b) in the case of the Servicer, Administrator
and Custodian, to ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: Vice President of Finance and Risk, (c) in the case of the Seller,
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Vice
President of Finance and Risk; (d) in the case of the Issuer or the
22
Owner Trustee, at the Corporate Trust Office (as defined in the Trust
Agreement); (e) in the case of Fitch, to ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇; (f) in the case of ▇▇▇▇▇'▇, to ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, Attention: ABS Monitoring Department, and (g) in the case of
Standard & Poor's, to ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ (▇▇▇▇ ▇▇▇▇▇), ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: Asset Backed Surveillance Department; or, as to each of the
foregoing, at such other address as shall be designated by written notice to the
other parties.
SECTION 6.08. Costs and Expenses. The Seller shall pay all expenses
incident to the performance of its obligations under this Agreement and the
Seller agrees to pay all reasonable out-of-pocket costs and expenses of the
Depositor, in connection with the perfection as against third parties of the
Depositor's, the Issuer's and the Indenture Trustee's right, title and interest
in and to the Receivables and the enforcement of any obligation of the Seller
hereunder.
SECTION 6.09. Representations of the Seller and the Depositor. The
respective agreements, representations, warranties and other statements by the
Seller and the Depositor set forth in or made pursuant to this Agreement shall
remain in full force and effect and will survive the closing under Section 2.02
and the transfers and assignments referred to in Section 6.04.
SECTION 6.10. Confidential Information. The Depositor agrees that it will
neither use nor disclose to any person the names and addresses of the Obligors,
except in connection with the enforcement of the Depositor's rights hereunder,
under the Receivables, under the Sale and Servicing Agreement or any other Basic
Document, or as required by any of the foregoing or by law.
SECTION 6.11. Headings and Cross-References. The various headings in this
Agreement are included for convenience only and shall not affect the meaning or
interpretation of any provision of this Agreement. References in this Agreement
to section names or numbers are to such Sections of this Agreement.
SECTION 6.12. Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS (OTHER THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS
LAW), AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 6.13. Counterparts. This Agreement may be executed in
counter-parts, each of which shall be an original, but all of which together
shall constitute one and the same instrument.
SECTION 6.14. Third Party Beneficiary. The Indenture Trustee is an express
third party beneficiary of this Agreement and shall be entitled to enforce the
provisions of this Agreement as if it were a party hereto.
23
SECTION 6.15. No Proceedings. So long as this Agreement is in effect, and
for one year plus one day following its termination, each of the Seller and the
Depositor agree that it will not file any involuntary petition or otherwise
institute any bankruptcy, reorganization arrangement, insolvency or liquidation
proceeding or other proceedings under any federal or state bankruptcy law or
similar law against the Trust.
24
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective duly authorized officers as of the date and year
first above written.
BMW FINANCIAL SERVICES NA, LLC
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Treasurer
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President - Finance and
Risk
BMW FS SECURITIES LLC
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Treasurer
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President - Finance
EXHIBIT A
MATTERS ADDRESSED IN OPINION OF SELLER'S COUNSEL
A-1
EXHIBIT B
PROSPECTUS SUPPLEMENT
B-1
SCHEDULE I
Schedule of Receivables
-----------------------
[To be delivered to the Indenture Trustee at Closing]
SCHEDULE II
Location of Receivable Files
----------------------------
BMW Financial Services NA, LLC
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
SCHEDULE III
Receivable File Schedule
------------------------
1. All documents obtained or created in connection with the credit
investigation.
2. All Obligor records including without limitation (i) file copy of such
Receivable; (ii) copy Dealer assignment (if applicable) and any intervening
assignments; (iii) warranty copy (if applicable); (iv) credit life
insurance policy (if applicable); (v) proof of auto insurance or obligor
agreement to provide such insurance; (vi) title application; (vii) contract
verification sheet and (viii) original application or electronic copy
thereof.
3. Original document envelope together with all documents maintained therein.
4. Any and all other documents that the Servicer shall keep on file in
accordance with its customary procedures relating to a Receivable, an
Obligor or a Financed Vehicle.
TABLE OF CONTENTS
Page
Article I CERTAIN DEFINITIONS................................................1
Article II CONVEYANCE OF RECEIVABLES..........................................3
SECTION 2.01. Conveyance of Receivables....................................3
SECTION 2.02. The Closing..................................................4
Article III REPRESENTATIONS AND WARRANTIES.....................................4
SECTION 3.01. Representations and Warranties of the Depositor..............4
SECTION 3.02. Representations and Warranties of the Seller.................6
Article IV CONDITIONS........................................................16
SECTION 4.01. Conditions to Obligation of the Depositor...................16
SECTION 4.02. Conditions to Obligation of the Seller......................17
Article V COVENANTS OF THE SELLER AND THE DEPOSITOR.........................19
SECTION 5.01. Protection of Right, Title and Interest.....................19
SECTION 5.02. Other Liens or Interests....................................19
SECTION 5.03. Costs and Expenses..........................................19
SECTION 5.04. Hold Harmless...............................................20
Article VI MISCELLANEOUS PROVISIONS..........................................20
SECTION 6.01. Obligations of Seller.......................................20
SECTION 6.02. Repurchase Events...........................................20
SECTION 6.03. Depositor Assignment of Repurchased Receivables.............20
SECTION 6.04. Transfer to the Issuer......................................20
SECTION 6.05. Amendment...................................................21
SECTION 6.06. Waivers.....................................................21
SECTION 6.07. Notices.....................................................21
SECTION 6.08. Costs and Expenses..........................................22
SECTION 6.09. Representations of the Seller and the Depositor.............22
SECTION 6.10. Confidential Information....................................22
SECTION 6.11. Headings and Cross-References...............................22
SECTION 6.12. Governing Law...............................................22
SECTION 6.13. Counterparts................................................22
TABLE OF CONTENTS
(continued)
Page
SECTION 6.14. Third Party Beneficiary.....................................23
SECTION 6.15. No Proceedings..............................................23
EXHIBITS
EXHIBIT A Matters Addressed in Opinion of Seller's Counsel
EXHIBIT B Prospectus Supplement
SCHEDULE I Schedule of Receivables
SCHEDULE II Location of Receivable Files
SCHEDULE III Receivable File Schedule