Delaware
|
333-260903
333-260903-04
|
22-2013053
|
||
(State or other jurisdiction
of incorporation)
|
(Commission File Number of registrant and issuing entity, respectively)
|
(Registrant’s IRS Employer
Identification No.)
|
300 Chestnut Ridge Road, Woodcliff Lake, New Jersey
|
07677
|
|
(Address of principal executive offices)
|
(Zip Code)
|
Title of each class
|
Trading Symbol(s)
|
Name of each exchange on which registered
|
Not applicable
|
Not applicable
|
Not applicable
|
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards
provided pursuant to Section 13(a) of the Exchange Act.
|
☐
|
(a) |
Not applicable.
|
(b) |
Not applicable.
|
(c) |
Not applicable.
|
(d) |
Exhibits:
|
Exhibit No. |
Description
|
BMW VEHICLE LEASE TRUST 2023-2
|
FINANCIAL SERVICES VEHICLE TRUST
|
|||||||
By:
|
BMW Financial Services NA, LLC,
|
By:
|
BMW Financial Services NA, LLC,
|
|||||
as Administrator
|
as Servicer
|
|||||||
By:
|
/s/ Ole Jensen
|
By:
|
/s/ Ole Jensen
|
|||||
Name:
|
Ole Jensen
|
Name:
|
Ole Jensen
|
|||||
Title:
|
Chief Financial Officer & Vice President – Finance
|
Title:
|
Chief Financial Officer & Vice President – Finance
|
|||||
By:
|
/s/ Helena von Gladiss
|
|
By:
|
/s/ Helena von Gladiss
|
||||
Name:
|
Helena von Gladiss
|
Name:
|
Helena von Gladiss
|
|||||
Title:
|
Treasurer
|
Title:
|
Treasurer
|
|||||
BMW AUTO LEASING LLC
|
||||||||
By:
|
BMW Financial Services NA, LLC,
|
|||||||
as Managing Member
|
||||||||
By:
|
/s/ Ole Jensen
|
|||||||
Name: |
Ole Jensen |
|||||||
Title:
|
Chief Financial Officer & Vice President – Finance
|
|||||||
By:
|
/s/ Helena von Gladiss
|
|||||||
Name:
|
Helena von Gladiss
|
|||||||
Title:
|
Treasurer
|
a. |
“Free Writing Prospectus” means and includes any information relating to the Notes disseminated by the Depositor or any Underwriter that constitutes a “free writing prospectus” within the meaning of
Rule 405 under the Act;
|
b. |
“Prepricing Information” means information relating to the price, pricing speed, benchmark and status of the Notes and the offering thereof;
|
c. |
“Issuer Information” means (1) the information contained in any Permitted Underwriter Communication (as defined below) to the extent such information is also included in the Preliminary Prospectus
(other than Underwriters’ Information), (2) information in the Preliminary Prospectus, other than any Prepricing Information, that is used to calculate or create any Derived Information and (3) any computer tape in respect of the Notes or the
related leases furnished by the Depositor to any Underwriter (the “Computer Tape”);
|
d. |
“Derived Information” means such written information regarding the Notes as is disseminated by any Underwriter to a potential investor, which information is not any of (A) Issuer Information, (B)
Prepricing Information or (C) contained in the Registration Statement, the Preliminary Prospectus or the Prospectus or any amendment or supplement to any of them, taking into account information incorporated therein by reference (other than
information incorporated by reference from any information regarding the Notes that is disseminated by any Underwriter to a potential investor);
|
e. |
“Ratings Free Writing Prospectus” means the free writing prospectus dated September 28, 2023 relating to the credit ratings expected to be received on the Notes from the hired NRSROs. For the
avoidance of doubt, the Ratings Free Writing Prospectus shall constitute a Free Writing Prospectus for purposes of this Agreement.
|
a. |
Other than the Time of Sale Information and the Prospectus, it has not made, used, prepared, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any
“written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Notes, including but not limited to any “ABS informational and computational materials” as defined in Item
1101(a) of Regulation AB under the Act; provided, however, that (i) each Underwriter may prepare and convey one or more “written communications” (as defined in Rule 405 under the Act) containing no more than, and the Underwriter conveying
such information represents that such written communication contains no more than, the following: (1) the information in any other Free Writing Prospectus listed on Schedule III hereto or approved in writing by the Depositor, (2) information
relating to the class, size, rating, CUSIPs, coupon, yield, spread, closing date, legal maturity, weighted average life, expected final payment date, trade date and payment window of one or more classes of Notes, (3) the servicer clean-up
call, (4) the eligibility of the Notes to be purchased by ERISA plans, (5) Prepricing Information, (6) a column or other entry showing the status of the subscriptions for the Notes (both for the issuance as a whole and for each Underwriter’s
retention) and/or expected pricing parameters of the Notes and (7) Intex .cdi files (each such written communication, a “Permitted Underwriter Communication”); and (ii) each Underwriter will be permitted to provide confirmations of
sale; provided, however, that no Underwriter has or may distribute any information described in subclauses (1) through (7) above that would be
|
b. |
In disseminating information to prospective investors, it has complied and will continue to comply fully with the Rules and Regulations, including but not limited to Rules 164 and 433 under the Act
and the requirements thereunder for retention of Free Writing Prospectuses, including retaining any Free Writing Prospectuses it has used but which are not required to be filed for the required period.
|
c. |
Prior to entering into any Contract of Sale with a prospective investor, the applicable Underwriter shall convey the Time of Sale Information to the prospective investor. The Underwriter shall
maintain sufficient records to document its conveyance of the Time of Sale Information to the potential investor prior to the formation of the related Contract of Sale and shall maintain such records as required by the Rules and Regulations.
|
d. |
If Defective Time of Sale Information has been corrected with Corrected Time of Sale Information delivered to such Underwriter subsequent to the original Time of Sale and prior to the Closing Date,
such Underwriter shall (A) deliver the Corrected Time of Sale Information to each investor with whom it entered into a Contract of Sale and that received the Defective Time of Sale Information from such Underwriter and (B) provide each such
investor with a meaningful ability to elect to terminate or not to terminate the Contract of Sale with the Underwriter and provide to each such investor adequate disclosure of its rights under the existing Contract of Sale at the time such
termination is sought and (C) if any such prior Contract of Sale is terminated, provide the related investor with the opportunity to elect to enter into or not enter into a new Contract of Sale to purchase the Notes on the terms described in
the Corrected Time of Sale Information.
|
e. |
It has not delivered, and will not deliver, to any nationally recognized statistical rating organization (a “NRSRO”) any Rating Information and has not participated, and will not participate,
in any oral communication of Rating Information without the participation of a representative of BMW Financial Services. For purposes of this paragraph, “Rating Information” means any information provided to a NRSRO in connection with the
issuance or monitoring of a credit rating on the Notes.
|
Very truly yours,
|
|||
BMW AUTO LEASING LLC
|
|||
By:
|
/s/ Ole Jensen
|
||
Name:
|
Ole Jensen
|
||
Title:
|
Chief Executive Officer &
|
||
Vice President – Finance
|
|||
By:
|
/s/ Helena von Gladiss
|
||
Name:
|
Helena von Gladiss
|
||
Title:
|
Treasurer
|
||
BMW FINANCIAL SERVICES NA, LLC
|
|||
By:
|
/s/ Ole Jensen
|
||
Name:
|
Ole Jensen
|
||
Title:
|
Chief Financial Officer &
|
||
Vice President – Finance
|
|||
By:
|
/s/ Helena von Gladiss
|
||
Name:
|
Helena von Gladiss
|
||
Title:
|
Treasurer
|
Underwriter
|
Class A-1 Notes
|
Class A-2 Notes
|
Class A-3 Notes
|
Class A-4 Notes
|
|||
SG Americas Securities, LLC
|
$93,750,000
|
$234,376,000
|
$234,374,000
|
$62,500,000
|
|||
J.P. Morgan Securities LLC
|
$42,187,000
|
$105,469,000
|
$105,469,000
|
$28,125,000
|
|||
SMBC Nikko Securities America, Inc.
|
$42,187,000
|
$105,469,000
|
$105,469,000
|
$28,125,000
|
|||
HSBC Securities (USA) Inc.
|
$4,688,000
|
$11,718,000
|
$11,719,000
|
$3,125,000
|
|||
RBC Capital Markets, LLC
|
$4,688,000
|
$11,718,000
|
$11,719,000
|
$3,125,000
|
|||
Total
|
$187,500,000
|
$468,750,000
|
$468,750,000
|
$125,000,000
|
Security
|
Principal
Balance $
|
Investor
Price % |
Investor
Price $ |
Price %
|
Price $
|
Rate %
|
||||||
Class A-1 Notes
|
$187,500,000
|
100.00000%
|
$187,500,000.00
|
99.96500%
|
$187,434,375.00
|
5.687%
|
||||||
Class A-2 Notes
|
$468,750,000
|
99.99441%
|
$468,723,796.88
|
99.83841%
|
$467,992,546.88
|
5.95%
|
||||||
Class A-3 Notes
|
$468,750,000
|
99.99797%
|
$468,740,484.38
|
99.78797%
|
$467,756,109.38
|
5.99%
|
||||||
Class A-4 Notes
|
$125,000,000
|
99.98636%
|
$124,982,950.00
|
99.73636%
|
$124,670,450.00
|
5.98%
|
||||||
Total Price to Public:
|
$1,249,947,231.26
|
|||||||||||
Total Price to Depositor:
|
$1,247,853,481.26
|
|||||||||||
Underwriting Discounts and Commissions:
|
$2,093,750.00
|
ARTICLE ONE DEFINITIONS
|
1
|
|
Section 1.01
|
Definitions
|
1
|
Section 1.02
|
Interpretive Provisions.
|
16
|
ARTICLE TWO THE NOTES
|
16
|
|
Section 2.01
|
Form
|
16
|
Section 2.02
|
Execution, Authentication and Delivery
|
17
|
Section 2.03
|
Temporary Notes
|
17
|
Section 2.04
|
Registration; Registration of Transfer and Exchange
|
18
|
Section 2.05
|
Mutilated, Destroyed, Lost or Stolen Notes
|
19
|
Section 2.06
|
Persons Deemed Owners
|
20
|
Section 2.07
|
Cancellation
|
20
|
Section 2.08
|
Release of Collateral
|
20
|
Section 2.09
|
Book-Entry Notes
|
21
|
Section 2.10
|
Notices to Clearing Agency
|
21
|
Section 2.11
|
Definitive Notes
|
21
|
Section 2.12
|
Authenticating Agents
|
22
|
Section 2.13
|
Tax Forms
|
23
|
ARTICLE THREE COVENANTS
|
23
|
|
Section 3.01
|
Payment of Principal and Interest
|
23
|
Section 3.02
|
Maintenance of Office or Agency
|
23
|
Section 3.03
|
Money for Payments to be Held in Trust
|
23
|
Section 3.04
|
Existence
|
25
|
Section 3.05
|
Protection of Trust Estate
|
25
|
Section 3.06
|
Opinions as to Trust Estate.
|
26
|
Section 3.07
|
Performance of Obligations; Administration of the 2023-2 SUBI Assets.
|
26
|
Section 3.08
|
Negative Covenants
|
27
|
Section 3.09
|
Issuer and Indenture Trustee Certificates and Reports.
|
28
|
Section 3.10
|
Restrictions on Certain Other Activities
|
29
|
Section 3.11
|
Notice of Defaults
|
29
|
Section 3.12
|
Further Instruments and Acts
|
29
|
Section 3.13
|
Delivery of 2023-2 SUBI Certificate
|
29
|
Section 3.14
|
Compliance with Laws
|
29
|
Section 3.15
|
Issuer May Consolidate, etc., Only on Certain Terms.
|
29
|
Section 3.16
|
Perfection Representations.
|
31
|
ARTICLE FOUR SATISFACTION AND DISCHARGE
|
32
|
|
Section 4.01
|
Satisfaction and Discharge of Indenture
|
32
|
Section 4.02
|
Application of Trust Money
|
33
|
Section 4.03
|
Repayment of Monies Held by Paying Agent
|
33
|
ARTICLE FIVE INDENTURE DEFAULT
|
33
|
|
Section 5.01
|
Indenture Defaults
|
33
|
Section 5.02
|
Acceleration of Maturity; Waiver of Indenture Default
|
34
|
Section 5.03
|
Collection of Indebtedness and Suits for Enforcement by Indenture Trustee.
|
35
|
Section 5.04
|
Remedies; Priorities.
|
37
|
Section 5.05
|
Optional Preservation of the 2023-2 SUBI Assets
|
39
|
Section 5.06
|
Limitation of Suits.
|
39
|
Section 5.07
|
Unconditional Rights of Noteholders to Receive Principal and Interest
|
40
|
Section 5.08
|
Restoration of Rights and Remedies
|
40
|
Section 5.09
|
Rights and Remedies Cumulative
|
40
|
Section 5.10
|
Delay or Omission Not a Waiver
|
40
|
Section 5.11
|
Control by Noteholders
|
40
|
Section 5.12
|
Waiver of Past Defaults
|
41
|
Section 5.13
|
Undertaking for Costs
|
41
|
Section 5.14
|
Waiver of Stay or Extension Laws
|
42
|
Section 5.15
|
Action on Notes
|
42
|
Section 5.16
|
Performance and Enforcement of Certain Obligations.
|
42
|
Section 5.17
|
Sale of Trust Estate
|
42
|
ARTICLE SIX THE INDENTURE TRUSTEE
|
43
|
|
Section 6.01
|
Duties of Indenture Trustee.
|
43
|
Section 6.02
|
Rights of Indenture Trustee.
|
45
|
Section 6.03
|
Individual Rights of Indenture Trustee
|
47
|
Section 6.04
|
Indenture Trustee’s Disclaimer
|
47
|
Section 6.05
|
Notice of Defaults
|
47
|
Section 6.06
|
Reports by Indenture Trustee to Noteholders
|
47
|
Section 6.07
|
Compensation and Indemnity
|
48
|
Section 6.08
|
Replacement of Indenture Trustee
|
49
|
Section 6.09
|
Successor Indenture Trustee by Merger
|
50
|
Section 6.10
|
Appointment of Co-Trustee or Separate Trustee.
|
50
|
Section 6.11
|
Eligibility; Disqualification
|
51
|
Section 6.12
|
Indenture Trustee as Holder of 2023-2 SUBI Certificate
|
52
|
Section 6.13
|
Representations and Warranties of Indenture Trustee
|
52
|
Section 6.14
|
Furnishing of Documents
|
52
|
Section 6.15
|
Preferential Collection of Claims Against the Issuer
|
52
|
ARTICLE SEVEN NOTEHOLDERS’ LISTS AND REPORTS
|
53
|
|
Section 7.01
|
Issuer to Furnish Indenture Trustee Noteholder Names and Addresses
|
53
|
Section 7.02
|
Preservation of Information; Communications to Noteholders.
|
53
|
Section 7.03
|
Reports by Indenture Trustee
|
53
|
ARTICLE EIGHT ACCOUNTS, DISBURSEMENTS AND RELEASES
|
53
|
|
Section 8.01
|
Collection of Money
|
53
|
Section 8.02
|
Accounts.
|
54
|
Section 8.03
|
Payment Date Certificate.
|
55
|
Section 8.04
|
Disbursement of Funds.
|
57
|
Section 8.05
|
General Provisions Regarding Accounts.
|
61
|
Section 8.06
|
Release of Trust Estate.
|
62
|
ARTICLE NINE SUPPLEMENTAL INDENTURES
|
62
|
|
Section 9.01
|
Supplemental Indentures Without Consent of Noteholders.
|
62
|
Section 9.02
|
Supplemental Indentures With Consent of Noteholders
|
64
|
Section 9.03
|
Execution of Supplemental Indentures
|
65
|
Section 9.04
|
Effect of Supplemental Indenture
|
65
|
Section 9.05
|
Reference in Notes to Supplemental Indentures
|
66
|
Section 9.06
|
Conformity with Trust Indenture Act
|
66
|
ARTICLE TEN REDEMPTION OF NOTES
|
66
|
|
Section 10.01
|
Redemption.
|
66
|
Section 10.02
|
Form of Redemption Notice
|
67
|
Section 10.03
|
Notes Payable on Redemption Date
|
67
|
ARTICLE ELEVEN MISCELLANEOUS
|
67
|
|
Section 11.01
|
Compliance Certificates and Opinions.
|
67
|
Section 11.02
|
Form of Documents Delivered to Indenture Trustee
|
69
|
Section 11.03
|
Acts of Noteholders.
|
70
|
Section 11.04
|
Notices
|
70
|
Section 11.05
|
Notices to Noteholders; Waiver
|
71
|
Section 11.06
|
Effect of Headings and Table of Contents
|
71
|
Section 11.07
|
Successors and Assigns
|
71
|
Section 11.08
|
Severability
|
71
|
Section 11.09
|
Benefits of Indenture
|
71
|
Section 11.10
|
Legal Holidays
|
72
|
Section 11.11
|
Governing Law
|
72
|
Section 11.12
|
Counterparts
|
72
|
Section 11.13
|
Recording of Indenture
|
72
|
Section 11.14
|
Trust Obligation
|
72
|
Section 11.15
|
No Petition
|
73
|
Section 11.16
|
No Recourse
|
73
|
Section 11.17
|
Inspection
|
73
|
Section 11.18
|
Limitation of Liability of Owner Trustee
|
74
|
Section 11.19
|
TIA Incorporation and Conflicts
|
74
|
Section 11.20
|
Intent
|
74
|
Section 11.21
|
Intent of Parties; Reasonableness
|
74
|
Section 11.22
|
Communications with Rating Agencies
|
75
|
ARTICLE TWELVE ASSET REPRESENTATIONS REVIEW
|
75
|
|
Section 12.01
|
Noteholder and Note Owner Requests for Vote on Asset Representations Review
|
75
|
Section 12.02
|
Noteholder and Note Owner Vote on Asset Representations Review
|
76
|
Section 12.03
|
Evaluation of Review Report
|
76
|
Section 12.04
|
Dispute Resolution
|
76
|
SCHEDULES
|
||
Schedule I
|
Perfection Representations, Warranties and Covenants
|
I-1
|
EXHIBITS
|
||
Exhibit A
|
Form of Note
|
A-1
|
Exhibit B
|
Servicing Criteria to be Addressed in the Indenture Trustee’s Assessment of Compliance
|
B-1
|
BMW VEHICLE LEASE TRUST 2023-2
|
||
By:
|
Wilmington Trust, National Association,
|
|
not in its individual capacity but solely
|
||
as Owner Trustee
|
||
By:
|
|
|
Name:
|
||
Title:
|
||
U.S. BANK TRUST COMPANY, NATIONAL
|
||
ASSOCIATION,
|
||
as Indenture Trustee
|
||
By:
|
|
|
Name:
|
||
Title:
|
a. |
All original executed copies of each such instrument or tangible chattel paper have been delivered to the Indenture Trustee; or
|
b. |
Such instruments or tangible chattel paper are in the possession of a custodian and the Indenture Trustee has received a written acknowledgment from such custodian that such custodian is holding such
instruments or tangible chattel paper solely on behalf and for the benefit of the Indenture Trustee; or
|
c. |
A custodian received possession of such instruments or tangible chattel paper after the Indenture Trustee received a written acknowledgment from such custodian that such custodian is acting solely as
agent of the Indenture Trustee.
|
a. |
The Issuer has delivered to the Indenture Trustee a fully executed agreement pursuant to which the bank maintaining the deposit accounts has agreed to comply with all instructions originated by the
Indenture Trustee directing disposition of the funds in the Accounts without further consent by the Issuer; or
|
b. |
The Issuer has taken all steps necessary to cause the Indenture Trustee to become the account holder of the Accounts.
|
a. |
The Issuer has caused or will have caused, within ten days after the effective date of the Indenture, 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 granted in the Collateral to the Indenture Trustee; or
|
b. |
The Issuer has delivered to the Indenture Trustee a fully executed agreement (1) that provides that the agreement is governed solely by the law of New York and that the law of the State of New York
shall govern all issues specified in Article 2(1) of the Hague Securities Convention, (2) pursuant to which the securities intermediary has agreed to comply with all instructions originated by the Indenture Trustee relating to the Accounts
without further consent by the Issuer, and (3) with a securities intermediary that has and has had at all relevant times one or more offices (within the meaning of the Hague Securities Convention) in the United
|
States of America which satisfies the criteria provided in Article 4(1)(a) or (b) of the Hague Securities Convention; or
|
c. |
The Issuer has taken all steps necessary to cause the securities intermediary to identify in its records the Indenture Trustee as the person having a security entitlement against the securities
intermediary in the Accounts so long as (1) the agreement governing the securities account satisfies the requirements of sub-clause (1) of the preceding clause (b), and (2) the securities intermediary satisfies the requirements of sub-clause
(3) of the preceding clause (b).
|
REGISTERED
|
$[_________]
|
||
No. R-[___]
|
CUSIP NO. [_________]
|
Dated: _______________, 2023
|
BMW VEHICLE LEASE TRUST 2023-2,
|
|
By:
|
Wilmington Trust, National Association,
|
|
not in its individual capacity but solely
|
||
as Owner Trustee
|
||
By:
|
|
|
Name:
|
||
Title:
|
Dated: _______________, 2023
|
U.S. BANK TRUST COMPANY,
|
|
NATIONAL ASSOCIATION, not in its
|
||
individual capacity, but solely as Indenture
|
||
Trustee
|
||
By:
|
|
|
Name:
|
||
Title:
|
Reference
|
Criteria
|
|
General Servicing Considerations
|
||
1122(d)(1)(i)
|
Policies and procedures are instituted to monitor any performance or other triggers and events of default in accordance with the transaction agreements.
|
|
1122(d)(1)(ii)
|
If any material servicing activities are outsourced to third parties, policies and procedures are instituted to monitor the third party’s performance and compliance with such servicing activities.
|
|
1122(d)(1)(iii)
|
Any requirements in the transaction agreements to maintain a back-up servicer for the receivables are maintained.
|
|
1122(d)(1)(iv)
|
A fidelity bond and errors and omissions policy is in effect on the party participating in the servicing function throughout the reporting period in the amount of coverage required by and otherwise
in accordance with the terms of the transaction agreements.
|
|
1122(d)(1)(v)
|
Aggregation of information, as applicable, is mathematically accurate and the information conveyed accurately reflects the information.
|
|
Cash Collection and Administration
|
||
1122(d)(2)(i)
|
Payments on receivables are deposited into the appropriate custodial bank accounts and related bank clearing accounts no more than two business days following receipt, or such other number of days
specified in the transaction agreements.
|
|
1122(d)(2)(ii)
|
Disbursements made via wire transfer on behalf of an obligor or to an investor are made only by authorized personnel.
|
X
|
1122(d)(2)(iii)
|
Advances of funds or guarantees regarding collections, cash flows or distributions, and any interest or other fees charged for such advances, are made, reviewed and approved as specified in the
transaction agreements.
|
|
1122(d)(2)(iv)
|
The related accounts for the transaction, such as cash reserve accounts or accounts established as a form of overcollateralization, are separately maintained (e.g., with respect to commingling of
cash) as set forth in the transaction agreements.
|
Reference
|
Criteria
|
|
1122(d)(2)(v)
|
Each custodial account is maintained at a federally insured depository institution as set forth in the transaction agreements. For purposes of this criterion, “federally insured depository
institution” with respect to a foreign financial institution means a foreign financial institution that meets the requirements of Rule 13k-1(b)(1) of the Securities Exchange Act.
|
|
1122(d)(2)(vi)
|
Unissued checks are safeguarded so as to prevent unauthorized access.
|
|
1122(d)(2)(vii)
|
Reconciliations are prepared on a monthly basis for all asset-backed securities related bank accounts, including custodial accounts and related bank clearing accounts. These reconciliations (A) are
mathematically accurate; (B) are prepared within 30 calendar days after the bank statement cutoff date, or such other number of days specified in the transaction agreements; (C) are reviewed and approved by someone other than the person who
prepared the reconciliation; and (D) contain explanations for reconciling items. These reconciling items are resolved within 90 calendar days of their original identification, or such other number of days specified in the transaction
agreements.
|
|
Investor Remittances and Reporting
|
||
1122(d)(3)(i)
|
Reports to investors, including those to be filed with the Commission, are maintained in accordance with the transaction agreements and applicable Commission requirements. Specifically, such reports
(A) are prepared in accordance with timeframes and other terms set forth in the transaction agreements; (B) provide information calculated in accordance with the terms specified in the transaction agreements; (C) are filed with the Commission
as required by its rules and regulations; and (D) agree with investors’ or the trustee’s records as to the total unpaid principal balance and number of receivables serviced by the Servicer.
|
|
1122(d)(3)(ii)
|
Amounts due to investors are allocated and remitted in accordance with timeframes, distribution priority and other terms set forth in the transaction agreements.
|
X
|
1122(d)(3)(iii)
|
Disbursements made to an investor are posted within two business days to the Servicer’s investor records, or such other number of days specified in the transaction agreements.
|
X
|
1122(d)(3)(iv)
|
Amounts remitted to investors per the investor reports agree with cancelled checks, or other form of payment, or custodial bank statements.
|
X
|
Pool Asset Administration
|
||
1122(d)(4)(i)
|
Collateral or security on receivables is maintained as required by the transaction agreements or related receivables documents.
|
|
1122(d)(4)(ii)
|
Receivables and related documents are safeguarded as required by the transaction agreements
|
Reference
|
Criteria
|
|
1122(d)(4)(iii)
|
Any additions, removals or substitutions to the asset pool are made, reviewed and approved in accordance with any conditions or requirements in the transaction agreements.
|
|
1122(d)(4)(iv)
|
Payments on receivables, including any payoffs, made in accordance with the related receivables documents are posted to the Servicer’s obligor records maintained no more than two business days after
receipt, or such other number of days specified in the transaction agreements, and allocated to principal, interest or other items (e.g., escrow) in accordance with the related receivables documents.
|
|
1122(d)(4)(v)
|
The Servicer’s records regarding the receivables agree with the Servicer’s records with respect to an obligor’s unpaid principal balance.
|
|
1122(d)(4)(vi)
|
Changes with respect to the terms or status of an obligor’s receivables (e.g., loan modifications or re-agings) are made, reviewed and approved by authorized personnel in accordance with usual
customary procedures.
|
|
1122(d)(4)(vii)
|
Loss mitigation or recovery actions (e.g., forbearance plans, modifications and deeds in lieu of foreclosure, foreclosures and repossessions, as applicable) are initiated, conducted and concluded in
accordance with usual customary procedures.
|
|
1122(d)(4)(viii)
|
Records documenting collection efforts are maintained during the period a receivable is delinquent in accordance with the transaction agreements. Such records are maintained on at least a monthly
basis, or such other period specified in the transaction agreements, and describe the entity’s activities in monitoring delinquent receivables including, for example, phone calls, letters and payment rescheduling plans in cases where
delinquency is deemed temporary (e.g., illness or unemployment).
|
|
1122(d)(4)(ix)
|
Adjustments to interest rates or rates of return for receivables with variable rates are computed based on the related receivables documents.
|
|
1122(d)(4)(x)
|
Regarding any funds held in trust for an obligor (such as escrow accounts): (A) such funds are analyzed, in accordance with the obligor’s receivables documents, on at least an annual basis, or such
other period specified in the transaction agreements; (B) interest on such funds is paid, or credited, to obligors in accordance with applicable receivables documents and state laws; and (C) such funds are returned to the obligor within 30
calendar days of full repayment of the related receivables, or such other number of days specified in the transaction agreements.
|
|
1122(d)(4)(xi)
|
Payments made on behalf of an obligor (such as tax or insurance payments) are made on or before the related penalty or expiration dates, as indicated on the appropriate bills or notices for such
payments, provided that such support has been received by the servicer at least 30 calendar days prior to these dates, or such other number of days specified in the transaction agreements.
|
|
1122(d)(4)(xii)
|
Any late payment penalties in connection with any payment to be made on behalf of an obligor are paid from the servicer’s funds and not charged to
|
Reference
|
Criteria
|
|
the obligor, unless the late payment was due to the obligor’s error or omission.
|
||
1122(d)(4)(xiii)
|
Disbursements made on behalf of an obligor are posted within two business days to the obligor’s records maintained by the servicer, or such other number of days specified in the transaction
agreements.
|
|
1122(d)(4)(xiv)
|
Delinquencies, charge-offs and uncollectible accounts are recognized and recorded in accordance with the transaction agreements.
|
|
1122(d)(4)(xv)
|
Any external enhancement or other support, identified in Item 1114(a)(1) through (3) or Item 1115 of Regulation AB, is maintained as set forth in the transaction agreements.
|
|
FORM OF 2023-2
VEHICLE TRUST SUPPLEMENT Dated as of October 11, 2023 |
|
ARTICLE I -
|
DEFINITIONS
|
1
|
1.1
|
Definitions
|
1
|
1.2
|
Interpretive Provisions
|
5
|
ARTICLE II -
|
CREATION OF THE 2023-2 SUBI
|
6
|
2.1
|
Creation of 2023-2 SUBI Assets and the 2023-2 SUBI
|
6
|
2.2
|
Transfer of 2023-2 SUBI Interests
|
7
|
2.3
|
Issuance and Form of 2023-2 SUBI Certificate
|
7
|
2.4
|
Actions and Filings
|
8
|
2.5
|
Termination of the 2023-2 SUBI
|
8
|
2.6
|
Representations and Warranties of Vehicle Trustee
|
9
|
2.7
|
Duties and Powers of Vehicle Trustee
|
9
|
ARTICLE III -
|
2023-2 SUBI ACCOUNTS
|
10
|
3.1
|
2023-2 SUBI Collection Account
|
10
|
3.2
|
Reserve Fund
|
10
|
ARTICLE IV -
|
2023-2 SUBI PLEDGE
|
10
|
4.1
|
Registration of 2023-2 SUBI Pledge
|
10
|
ARTICLE V -
|
MISCELLANEOUS PROVISIONS
|
11
|
5.1
|
Amendment
|
11
|
5.2
|
Governing Law
|
12
|
5.3
|
Notices
|
12
|
5.4
|
Severability of Provisions
|
12
|
5.5
|
Effect of Supplement on Vehicle Trust Agreement
|
12
|
5.6
|
No Petition
|
13
|
5.7
|
Prohibited Directions
|
13
|
5.8
|
Trust Termination
|
14
|
5.9
|
Third-Party Beneficiaries
|
14
|
5.10
|
Communications with Rating Agencies
|
14
|
5.11
|
Waiver of Jury Trial
|
14
|
5.12
|
Electronic Signatures
|
14
|
EXHIBITS
|
||
Exhibit A ‑ Schedule of 2023-2 Leases and 2023-2 Vehicles
|
A‑1
|
|
Exhibit B ‑ Form of 2023-2 SUBI Certificate
|
B‑1
|
FORM OF 2023-2
SERVICING SUPPLEMENT
Dated as of October 11, 2023
|
ARTICLE I - DEFINITIONS
|
1
|
|
1.1.
|
Definitions
|
1
|
1.2.
|
Interpretative Provisions
|
10
|
ARTICLE II - SERVICING OF THE 2023-2 LEASES AND 2023-2 VEHICLES
|
10
|
|
2.1.
|
Identification of 2023-2 Vehicles and 2023-2 Leases; Servicing; Securitization Value
|
10
|
2.2.
|
Extensions; Monthly Payments; Term.
|
11
|
2.3.
|
Representations and Reallocation of 2023-2 Leases and 2023-2 Vehicles
|
11
|
2.4.
|
Collections and Payment Date Advance Reimbursement
|
13
|
2.5.
|
Net Deposits
|
14
|
2.6.
|
Servicing Compensation
|
14
|
2.7.
|
Advances
|
14
|
2.8.
|
Third-Party Claims
|
15
|
2.9.
|
Contingent and Excess Liability Insurance Policies
|
15
|
2.10.
|
Reporting by the Servicer; Delivery of Certain Documentation
|
15
|
2.11.
|
Annual Officer’s Certificate
|
16
|
2.12.
|
Assessment of Compliance and Annual Accountants’ Attestation.
|
16
|
2.13.
|
Custody of Lease Documents and Certificates of Title.
|
17
|
2.14.
|
Servicer Defaults; Termination of Servicer
|
18
|
2.15.
|
Servicer Representations and Warranties
|
20
|
2.16.
|
Appointment of Subservicer or Subcontractor
|
23
|
2.17.
|
Information to be Provided by the Servicer
|
24
|
2.18.
|
Remedies
|
25
|
2.19.
|
Purchase of the 2023-2 SUBI Certificate; Redemption of the Notes; Repayment of the Trust Certificates.
|
25
|
2.20.
|
Servicer Not to Resign
|
26
|
2.21.
|
Pull-Ahead and Other Early Termination Marketing Programs
|
26
|
2.22.
|
Vehicle Trustee Compensation
|
26
|
2.23.
|
2023-2 SUBI Collection Account
|
27
|
2.24.
|
Regulation RR Risk Retention
|
27
|
ARTICLE III - MISCELLANEOUS
|
27
|
|
3.1.
|
Termination of Supplement
|
27
|
3.2.
|
Governing Law
|
27
|
3.3.
|
Amendment.
|
27
|
3.4.
|
Relationship of this Servicing Supplement to Other Basic Documents
|
28
|
3.5.
|
Binding Effect
|
28
|
3.6.
|
Table of Contents and Headings
|
28
|
3.7.
|
Counterparts
|
28
|
3.8.
|
Further Assurances
|
29
|
3.9.
|
No Waiver; Cumulative Remedies
|
29
|
3.10.
|
No Petition
|
29
|
3.11.
|
Limitation of Liability of Vehicle Trustee
|
29
|
3.12.
|
Intent of Parties; Reasonableness
|
29
|
3.13.
|
Series Disclaimer and Acknowledgment
|
30
|
3.14.
|
Third-Party Beneficiaries
|
30
|
3.15.
|
Effect of Supplement on Basic Servicing Agreement.
|
30
|
3.16.
|
Additional Agreements
|
31
|
ARTICLE IV - ASSET REPRESENTATIONS REVIEW; DISPUTE RESOLUTION
|
31
|
|
4.1.
|
Asset Representations Review
|
31
|
4.2.
|
Dispute Resolution
|
32
|
EXHIBITS
|
||
Schedule A
|
Location of Lease Files
|
Schedule A-1
|
Exhibit A
|
Schedule of 2023-2 Vehicles
|
A-1
|
Exhibit B
|
Form of Annual Certification
|
B-1
|
Exhibit C
|
Servicing Criteria to be Addressed in Assessment of Compliance
|
C-1
|
By: |
BNY Mellon Trust of Delaware, not in its individual capacity but solely as Vehicle Trustee
|
Re: |
The Servicing Supplement dated as of October 11, 2023 (the “Agreement”), among FINANCIAL SERVICES VEHICLE TRUST (the “Vehicle Trust”), BMW MANUFACTURING L.P. (the “UTI Beneficiary”) and BMW
FINANCIAL SERVICES NA, LLC, as the sponsor (in such capacity, the “Sponsor”) and as servicer (in such capacity, the “Servicer”).
|
Reference
|
Criteria
|
|
|
General Servicing Considerations
|
|
1122(d)(1)(i)
|
Policies and procedures are instituted to monitor any performance or other triggers and events of default in accordance with the transaction agreements.
|
|
1122(d)(1)(ii)
|
If any material servicing activities are outsourced to third parties, policies and procedures are instituted to monitor the third party’s performance and compliance with such
servicing activities.
|
|
1122(d)(1)(iii)
|
Any requirements in the transaction agreements to maintain a back-up servicer for the receivables are maintained.
|
N/A
|
1122(d)(1)(iv)
|
A fidelity bond and errors and omissions policy is in effect on the party participating in the servicing function throughout the reporting period in the amount of coverage required by
and otherwise in accordance with the terms of the transaction agreements.
|
|
1122(d)(1)(v)
|
Aggregation of information, as applicable, is mathematically accurate and the information conveyed accurately reflects the information.
|
|
|
Cash Collection and Administration
|
|
1122(d)(2)(i)
|
Payments on receivables are deposited into the appropriate custodial bank accounts and related bank clearing accounts no more than two business days following receipt, or such other
number of days specified in the transaction agreements.
|
|
1122(d)(2)(ii)
|
Disbursements made via wire transfer on behalf of an obligor or to an investor are made only by authorized personnel.
|
|
1122(d)(2)(iii)
|
Advances of funds or guarantees regarding collections, cash flows or distributions, and any interest or other fees charged for such advances, are made, reviewed and approved as
specified in the transaction agreements.
|
|
1122(d)(2)(iv)
|
The related accounts for the transaction, such as cash reserve accounts or accounts established as a form of overcollateralization, are separately maintained (e.g., with respect to
commingling of cash) as set forth in the transaction agreements.
|
|
1122(d)(2)(v)
|
Each custodial account is maintained at a federally insured depository institution as set forth in the transaction agreements. For purposes of this criterion, “federally insured
depository institution” with respect to a foreign financial institution means a foreign financial institution that meets the requirements of Rule 13k-1(b)(1) of the Securities Exchange Act.
|
|
1122(d)(2)(vi)
|
Unissued checks are safeguarded so as to prevent unauthorized access.
|
|
1122(d)(2)(vii)
|
Reconciliations are prepared on a monthly basis for all asset-backed securities related bank accounts, including custodial accounts and related bank clearing accounts. These
reconciliations (A) are mathematically accurate; (B) are prepared within 30 calendar days after the bank statement cutoff date, or such other number of days specified in the transaction agreements; (C) are reviewed and approved by someone
other than the person who prepared the reconciliation; and (D) contain explanations for reconciling items. These reconciling items are resolved within 90 calendar days of their original identification, or such other number of days specified
in the transaction agreements.
|
Reference
|
Criteria
|
|
Investor Remittances and Reporting
|
|
1122(d)(3)(i)
|
Reports to investors, including those to be filed with the Commission, are maintained in accordance with the transaction agreements and applicable Commission requirements.
Specifically, such reports (A) are prepared in accordance with timeframes and other terms set forth in the transaction agreements; (B) provide information calculated in accordance with the terms specified in the transaction agreements; (C)
are filed with the Commission as required by its rules and regulations; and (D) agree with investors’ or the trustee’s records as to the total unpaid principal balance and number of receivables serviced by the Servicer.
|
|
1122(d)(3)(ii)
|
Amounts due to investors are allocated and remitted in accordance with timeframes, distribution priority and other terms set forth in the transaction agreements.
|
|
1122(d)(3)(iii)
|
Disbursements made to an investor are posted within two business days to the Servicer’s investor records, or such other number of days specified in the transaction agreements.
|
|
1122(d)(3)(iv)
|
Amounts remitted to investors per the investor reports agree with cancelled checks, or other form of payment, or custodial bank statements.
|
|
|
Pool Asset Administration
|
|
1122(d)(4)(i)
|
Collateral or security on receivables is maintained as required by the transaction agreements or related receivables documents.
|
|
1122(d)(4)(ii)
|
Receivables and related documents are safeguarded as required by the transaction agreements
|
|
1122(d)(4)(iii)
|
Any additions, removals or substitutions to the asset pool are made, reviewed and approved in accordance with any conditions or requirements in the transaction agreements.
|
|
1122(d)(4)(iv)
|
Payments on receivables, including any payoffs, made in accordance with the related receivables documents are posted to the Servicer’s obligor records maintained no more than two
business days after receipt, or such other number of days specified in the transaction agreements, and allocated to principal, interest or other items (e.g., escrow) in accordance with the related receivables documents.
|
|
1122(d)(4)(v)
|
The Servicer’s records regarding the receivables agree with the Servicer’s records with respect to an obligor’s unpaid principal balance.
|
|
1122(d)(4)(vi)
|
Changes with respect to the terms or status of an obligor's receivables (e.g., loan modifications or re-agings) are made, reviewed and approved by authorized personnel in accordance
with usual customary procedures.
|
|
1122(d)(4)(vii)
|
Loss mitigation or recovery actions (e.g., forbearance plans, modifications and deeds in lieu of foreclosure, foreclosures and repossessions, as applicable) are initiated, conducted
and concluded in accordance with usual customary procedures.
|
|
1122(d)(4)(viii)
|
Records documenting collection efforts are maintained during the period a receivable is delinquent in accordance with the transaction agreements. Such records are maintained on at
least a monthly basis, or such other period specified in the transaction agreements, and describe the entity’s activities in monitoring delinquent receivables including, for example, phone calls, letters and payment rescheduling plans in
cases where delinquency is deemed temporary (e.g., illness or unemployment).
|
|
1122(d)(4)(ix)
|
Adjustments to interest rates or rates of return for receivables with variable rates are computed based on the related receivables documents.
|
Reference
|
Criteria
|
1122(d)(4)(x)
|
Regarding any funds held in trust for an obligor (such as escrow accounts): (A) such funds are analyzed, in accordance with the obligor’s receivables documents, on at least an annual
basis, or such other period specified in the transaction agreements; (B) interest on such funds is paid, or credited, to obligors in accordance with applicable receivables documents and state laws; and (C) such funds are returned to the
obligor within 30 calendar days of full repayment of the related receivables, or such other number of days specified in the transaction agreements.
|
|
1122(d)(4)(xi)
|
Payments made on behalf of an obligor (such as tax or insurance payments) are made on or before the related penalty or expiration dates, as indicated on the appropriate bills or
notices for such payments, provided that such support has been received by the servicer at least 30 calendar days prior to these dates, or such other number of days specified in the transaction agreements.
|
|
1122(d)(4)(xii)
|
Any late payment penalties in connection with any payment to be made on behalf of an obligor are paid from the servicer’s funds and not charged to the obligor, unless the late payment
was due to the obligor’s error or omission.
|
|
1122(d)(4)(xiii)
|
Disbursements made on behalf of an obligor are posted within two business days to the obligor’s records maintained by the servicer, or such other number of days specified in the
transaction agreements.
|
|
1122(d)(4)(xiv)
|
Delinquencies, charge-offs and uncollectible accounts are recognized and recorded in accordance with the transaction agreements.
|
|
1122(d)(4)(xv)
|
Any external enhancement or other support, identified in Item 1114(a)(1) through (3) or Item 1115 of Regulation AB, is maintained as set forth in the transaction agreements.
|
|
|
ARTICLE ONE
|
DEFINITIONS
|
2
|
Section 1.01.
|
Definitions
|
2
|
Section 1.02.
|
Interpretive Provisions
|
2
|
ARTICLE TWO
|
TRANSFER OF 2023-2 SUBI CERTIFICATE
|
2
|
Section 2.01.
|
Transfer of 2023-2 SUBI Certificate
|
2
|
Section 2.02.
|
True Sale
|
3
|
Section 2.03.
|
Representations and Warranties of the Transferor and the Transferee
|
3
|
Section 2.04.
|
Financing Statement and Books and Records
|
7
|
Section 2.05.
|
Acceptance by the Transferee
|
7
|
ARTICLE THREE
|
MISCELLANEOUS
|
7
|
Section 3.01.
|
Amendment
|
7
|
Section 3.02.
|
Governing Law
|
7
|
Section 3.03.
|
Severability
|
8
|
Section 3.04.
|
Binding Effect
|
8
|
Section 3.05.
|
Headings
|
8
|
Section 3.06.
|
Counterparts
|
8
|
Section 3.07.
|
Further Assurances
|
8
|
Section 3.08.
|
Third-Party Beneficiaries
|
8
|
Section 3.09.
|
No Petition
|
8
|
Schedule I Perfection Representations, Warranties and Covenants
|
I-1
|
By: |
BMW FACILITY PARTNERS, LLC,
as General Partner |
By: |
_______________________________
Name: Title: |
By: |
_______________________________
Name:
Title: |
By: |
_______________________________
Name:
Title: |
By: |
_______________________________
Name:
Title: |
|
|
ARTICLE ONE DEFINITIONS
|
2
|
|
Section 1.01.
|
Definitions
|
2
|
Section 1.02.
|
Interpretive Provisions
|
2
|
ARTICLE TWO TRANSFER OF 2023-2 SUBI CERTIFICATE
|
2
|
|
Section 2.01.
|
Transfer of 2023-2 SUBI Certificate
|
2
|
Section 2.02.
|
True Sale
|
3
|
Section 2.03.
|
Representations and Warranties of the Transferor and the Transferee.
|
3
|
Section 2.04.
|
Financing Statement and Books and Records.
|
6
|
Section 2.05.
|
Acceptance by the Transferee
|
7
|
ARTICLE THREE MISCELLANEOUS
|
7
|
|
Section 3.01.
|
Amendment
|
7
|
Section 3.02.
|
Governing Law
|
7
|
Section 3.03.
|
Severability
|
7
|
Section 3.04.
|
Binding Effect
|
7
|
Section 3.05.
|
Headings
|
7
|
Section 3.06.
|
Counterparts
|
7
|
Section 3.07.
|
Further Assurances
|
8
|
Section 3.08.
|
Third-Party Beneficiaries
|
8
|
Section 3.09.
|
No Petition
|
8
|
Section 3.10.
|
No Recourse
|
8
|
Section 3.11.
|
Acknowledgement and Agreement
|
8
|
Section 3.12.
|
Limitation of Liability of Owner Trustee
|
9
|
SCHEDULES
|
||
Schedule I
|
Perfection Representations, Warranties and Covenants
|
I-1
|
By: |
______________________________
Name: Title: |
By: |
______________________________ Name:
Title: |
By: |
Wilmington Trust, National Association,
not in its individual capacity but solely as Owner Trustee |
By: |
______________________________
Name:
Title: |
FORM OF AMENDED AND RESTATED TRUST
AGREEMENT Dated as of October 11, 2023
|
ARTICLE ONE
|
DEFINITIONS
|
1
|
Section 1.01.
|
Capitalized Terms
|
1
|
Section 1.02.
|
Interpretive Provisions.
|
5
|
ARTICLE TWO
|
ORGANIZATION
|
6
|
Section 2.01.
|
Name and Status
|
6
|
Section 2.02.
|
Office
|
6
|
Section 2.03.
|
Purposes and Powers.
|
6
|
Section 2.04.
|
Appointment of Owner Trustee
|
7
|
Section 2.05.
|
Initial Capital Contribution of Owner Trust Estate
|
7
|
Section 2.06.
|
Declaration of Trust
|
7
|
Section 2.07.
|
Liability of the Transferor.
|
8
|
Section 2.08.
|
Title to Trust Property
|
8
|
Section 2.09.
|
Situs of Issuer
|
8
|
Section 2.10.
|
Representations and Warranties of the Transferor
|
8
|
ARTICLE THREE
|
TRUST CERTIFICATES AND TRANSFER OF INTERESTS
|
10
|
Section 3.01.
|
Initial Ownership
|
10
|
Section 3.02.
|
The Trust Certificates
|
10
|
Section 3.03.
|
Authentication and Delivery of Trust Certificates
|
10
|
Section 3.04.
|
Registration of Transfer and Exchange.
|
10
|
Section 3.05.
|
Mutilated, Destroyed, Lost or Stolen Trust Certificates
|
14
|
Section 3.06.
|
Persons Deemed Trust Certificateholders
|
14
|
Section 3.07.
|
Access to List of Trust Certificateholders’ Names and Addresses
|
14
|
Section 3.08.
|
Maintenance of Office or Agency
|
15
|
Section 3.09.
|
Appointment of Paying Agent
|
15
|
Section 3.10.
|
Ownership of Trust Certificate
|
16
|
Section 3.11.
|
Trust Certificates held by Issuer, Transferor or their Affiliates
|
16
|
ARTICLE FOUR
|
ACTIONS BY OWNER TRUSTEE
|
16
|
Section 4.01.
|
Prior Notice to Trust Certificateholders with Respect to Certain Matters
|
16
|
Section 4.02.
|
Action by Trust Certificateholders with Respect to Certain Matters
|
17
|
Section 4.03.
|
Action by Owner Trustee with Respect to Bankruptcy
|
17
|
Section 4.04.
|
Restrictions on Trust Certificateholders’ Power
|
17
|
Section 4.05.
|
Majority Control
|
17
|
ARTICLE FIVE
|
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
|
18
|
Section 5.01.
|
Establishment of Certificate Distribution Account; Deposit Into Reserve Fund.
|
18
|
Section 5.02.
|
Application of Trust Funds.
|
18
|
Section 5.03.
|
Method of Payment
|
19
|
Section 5.04.
|
Accounting and Reports.
|
19
|
ARTICLE SIX
|
AUTHORITY AND DUTIES OF OWNER TRUSTEE
|
20
|
Section 6.01.
|
General Authority
|
20
|
Section 6.02.
|
General Duties
|
20
|
Section 6.03.
|
Action Upon Instruction.
|
20
|
Section 6.04.
|
No Duties Except as Specified
|
21
|
Section 6.05.
|
No Action Unless Specifically Authorized
|
22
|
Section 6.06.
|
Restrictions
|
22
|
Section 6.07.
|
Owner Trustee to Provide Information
|
23
|
ARTICLE SEVEN
|
CONCERNING THE OWNER TRUSTEE
|
23
|
Section 7.01.
|
Acceptance of Trusts and Duties
|
23
|
Section 7.02.
|
Doing Business in Other Jurisdictions
|
26
|
Section 7.03.
|
Furnishing of Documents
|
26
|
Section 7.04.
|
Representations and Warranties
|
26
|
Section 7.05.
|
Reliance; Advice of Counsel.
|
27
|
Section 7.06.
|
Not Acting in Individual Capacity
|
28
|
Section 7.07.
|
Owner Trustee Not Liable for Trust Certificates
|
28
|
Section 7.08.
|
Owner Trustee May Own Trust Certificates and Notes
|
28
|
ARTICLE EIGHT
|
COMPENSATION OF OWNER TRUSTEE
|
28
|
Section 8.01.
|
Owner Trustee’s Compensation and Indemnification.
|
28
|
ARTICLE NINE
|
TERMINATION OF TRUST AGREEMENT
|
29
|
Section 9.01.
|
Termination of Trust Agreement.
|
29
|
ARTICLE TEN
|
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
|
31
|
Section 10.01.
|
Eligibility Requirements for Owner Trustee
|
31
|
Section 10.02.
|
Resignation or Removal of Owner Trustee
|
31
|
Section 10.03.
|
Successor Owner Trustee
|
32
|
Section 10.04.
|
Merger or Consolidation of Owner Trustee
|
32
|
Section 10.05.
|
Appointment of Co‑Trustee or Separate Trustee
|
32
|
ARTICLE ELEVEN
|
TAX MATTERS
|
34
|
Section 11.01.
|
Tax and Accounting Characterization.
|
34
|
Section 11.02.
|
Signature on Returns; Partnership Representative.
|
34
|
Section 11.03.
|
Tax Reporting
|
35
|
ARTICLE TWELVE
|
MISCELLANEOUS
|
35
|
Section 12.01.
|
Amendments.
|
35
|
Section 12.02.
|
No Legal Title to Owner Trust Estate
|
37
|
Section 12.03.
|
Limitations on Rights of Others
|
37
|
Section 12.04.
|
Notices
|
37
|
Section 12.05.
|
Severability
|
38
|
Section 12.06.
|
Counterparts
|
38
|
Section 12.07.
|
Successors and Assigns
|
38
|
Section 12.08.
|
No Petition
|
38
|
Section 12.09.
|
No Recourse
|
38
|
Section 12.10.
|
Headings
|
39
|
Section 12.11.
|
Governing Law
|
39
|
Section 12.12.
|
Certificates Nonassessable and Fully Paid
|
39
|
Section 12.13.
|
Communications with Rating Agencies
|
39
|
Section 12.14.
|
Financial Crimes Enforcement Network’s Customer Due Diligence Requirements
|
39
|
ARTICLE THIRTEEN
|
COMPLIANCE WITH REGULATION AB
|
40
|
EXHIBITS
|
||
Exhibit A ‑ Form of Trust Certificate
|
A‑1
|
|
Exhibit B ‑ Form of Rule 144A Certificate
|
B‑1
|
|
Exhibit C ‑ Form of Rule 144A Letter
|
C‑1
|
|
Exhibit D ‑ Form of Investment Letter
|
D‑1
|
NUMBER
|
Percentage Interest: ____%
|
R‑_____
|
Dated: ________________________
|
BMW VEHICLE LEASE TRUST 2023-2
|
|
By: Wilmington Trust, National Association, not in its individual capacity but solely as Owner Trustee
|
||
By:
Name: Title: |
||
Wilmington Trust, National Association,
as Owner Trustee |
||
By:
|
||
* |
NOTICE: The signatures(s) on this Assignment must correspond with the name(s) as written on the face of the within Trust Certificate in every particular without alteration,
enlargement or any change whatsoever. Such signature must be guaranteed by a member firm of the New York Stock Exchange or a commercial bank or trust company.
|
Name:
|
Address:
|
Taxpayer I.D. No:
|
By: |
__________________________________________
Name: Title: |
Certificate Percentage Interest
of Definitive Certificate: |
|
Registered in
Name of: |
|
Deliver Definitive
Certificate to: |
|
|
|
|
|
|
|
|
|
|
___ |
Corporation, etc. The Purchaser is a corporation (other than a bank, savings and loan association or similar institution), Massachusetts or similar statutory trust, partnership, or
charitable organization described in Section 501(c)(3) of the Internal Revenue Code of 1986, as amended.
|
___ |
Bank. The Purchaser (a) is a national bank or banking institution organized under the laws of any state, territory or the District of Columbia, the business of which is substantially
confined to banking and is supervised by the state or territorial banking commission or similar official or is a foreign bank or equivalent institution, and (b) has an audited net worth of at least $25,000,000 as demonstrated in its latest
annual financial statements, a copy of which is attached hereto.
|
___ |
Savings and Loan. The Purchaser (a) is a savings and loan association, building and loan association, cooperative bank, homestead association or similar institution, which is
supervised and examined by a state or federal authority having supervision over any such institutions or is a foreign savings and loan association or equivalent institution and (b) has an audited net worth of at least $25,000,000 as
demonstrated in its latest annual financial statements, a copy of which is attached hereto.
|
1 |
Purchaser must own and/or invest on a discretionary basis at least $100,000,000 in securities unless Purchaser is a dealer, and, in that case, Purchaser must own and/or invest on a
discretionary basis at least $10,000,000 in securities.
|
___ |
Broker‑dealer. The Purchaser is a dealer registered pursuant to Section 15 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”).
|
___ |
Insurance Company. The Purchaser is an insurance company whose primary and predominant business activity is the writing of insurance or the reinsuring of risks underwritten by
insurance companies and which is subject to supervision by the insurance commissioner or a similar official or agency of a state, territory or the District of Columbia.
|
___ |
State or Local Plan. The Purchaser is a plan established and maintained by a state, its political subdivisions, or any agency or instrumentality of the state or its political
subdivisions, for the benefit of its employees.
|
___ |
ERISA Plan. The Purchaser is an employee benefit plan within the meaning of Title I of the Employee Retirement Income Security Act of 1974.
|
___ |
Investment Advisor. The Purchaser is an investment advisor registered under the Investment Advisors Act of 1940.
|
___ |
Small Business Investment Company. The Purchaser is a small business investment company licensed by the U.S. Small Business Administration under Section 301(c) or (d) of the Small
Business Investment Act of 1958.
|
___ |
Business Development Company. The Purchaser is a business development company as defined in Section 202(a)(22) of the Investment Advisors Act of 1940.
|
___ |
Trust Fund. The Purchaser is a trust fund whose trustee is a bank or trust company and whose participants are exclusively state or local Plans or ERISA Plans as defined above, and no
participant of the Purchaser is an individual retirement account or an H.R. 10 (Keogh) plan.
|
By: |
_________________________
Name: Title: |
___ |
The Purchaser owned $__________ in securities (other than the excluded securities referred to below) as of the end of the Purchaser’s most recent fiscal year (such amount being
calculated in accordance with Rule 144A).
|
___ |
The Purchaser is part of a Family of Investment Companies which owned in the aggregate $__________ in securities (other than the excluded securities referred to below) as of the end
of the Purchaser’s most recent fiscal year (such amount being calculated in accordance with Rule 144A).
|
By: |
____________________________
Name: Title: |
Re: |
BMW Vehicle Lease Trust 2023-2
Asset Backed Certificates |
Very truly yours,
|
||
[NAME OF TRANSFEREE]
|
||
By
|
||
Authorized Officer
|
1.1.
|
Capitalized Terms; Interpretive Provisions.
|
1
|
1.2.
|
Duties of the Administrator.
|
2
|
1.3.
|
Records
|
8
|
1.4.
|
Compensation
|
8
|
1.5.
|
Additional Information to be Furnished to the Issuer
|
8
|
1.6.
|
Independence of the Administrator
|
8
|
1.7.
|
No Joint Venture
|
8
|
1.8.
|
Other Activities of Administrator
|
8
|
1.9.
|
Term of Agreement; Resignation and Removal of Administrator
|
8
|
1.10.
|
Action Upon Termination, Resignation or Removal
|
9
|
1.11.
|
Notices
|
10
|
1.12.
|
Amendments
|
10
|
1.13.
|
Successors and Assigns
|
10
|
1.14.
|
Governing Law
|
11
|
1.15.
|
Headings
|
11
|
1.16.
|
Counterparts
|
11
|
1.17.
|
Severability
|
11
|
1.18.
|
Limitation of Liability of Owner Trustee and Indenture Trustee.
|
11
|
1.19.
|
Third-Party Beneficiary
|
12
|
1.20.
|
Nonpetition Covenants
|
12
|
1.21.
|
Form 10-Ds; Investor Communications.
|
12
|
BMW VEHICLE LEASE TRUST 2023-2, as Issuer
|
||
By:
|
Wilmington Trust, National Association, not in its individual
|
|
capacity but solely as Owner Trustee
|
||
By:
|
|
|
Name:
|
||
Title:
|
||
BMW AUTO LEASING LLC, as
|
||
Transferor
|
||
By:
|
|
|
Name:
|
||
Title:
|
||
By:
|
|
|
Name:
|
||
Title:
|
||
BMW FINANCIAL SERVICES NA, LLC, as
|
||
Administrator
|
||
By:
|
|
|
Name:
|
||
Title:
|
||
By:
|
|
|
Name:
|
||
Title:
|
U.S. BANK TRUST COMPANY,
|
||
NATIONAL ASSOCIATION, as
|
||
Indenture Trustee
|
||
By:
|
|
|
Name:
|
||
Title:
|
|
|
ARTICLE ONE DEFINITIONS
|
2
|
|
Section 1.01.
|
Definitions
|
2
|
Section 1.02.
|
Interpretive Provisions
|
3
|
ARTICLE TWO SECURITY INTEREST
|
3
|
|
Section 2.01.
|
Grant of Security Interest.
|
3
|
Section 2.02.
|
Certificate of Title
|
4
|
Section 2.03.
|
Filing of Financing Statements.
|
4
|
Section 2.04.
|
Use of Collateral
|
4
|
Section 2.05.
|
Further Description of the Collateral
|
4
|
Section 2.06.
|
Back-Up Rights of Issuer
|
5
|
ARTICLE THREE MISCELLANEOUS
|
5
|
|
Section 3.01.
|
Amendments
|
5
|
Section 3.02.
|
Governing Law
|
5
|
Section 3.03.
|
Severability of Provisions
|
5
|
Section 3.04.
|
Counterparts
|
5
|
Section 3.05.
|
Successors and Assigns
|
5
|
Section 3.06.
|
Further Assurances
|
5
|
Section 3.07.
|
Limitation of Liability of the Owner Trustee, the Trustee and the Indenture Trustee
|
6
|
Section 3.08.
|
Notices
|
6
|
Section 3.09.
|
Series Disclaimer and Acknowledgment
|
7
|
SCHEDULES
|
||
Schedule A — Schedule of 2023-2 Leases
|
A-1 |
FINANCIAL SERVICES VEHICLE TRUST, with respect to the 2023-2 SUBI
|
||
By:
|
BNY MELLON TRUST OF DELAWARE,
|
|
not in its individual capacity but solely as
|
||
Trustee
|
||
By:
|
|
|
Name:
|
||
Title:
|
||
BMW MANUFACTURING L.P.
|
||
By:
|
BMW FACILITY PARTNERS, LLC,
|
|
as General Partner
|
||
By:
|
|
|
Name:
|
||
Title:
|
||
By:
|
|
|
Name:
|
||
Title:
|
||
BMW AUTO LEASING LLC
|
||
By:
|
|
|
Name:
|
||
Title:
|
||
By:
|
|
|
Name:
|
||
Title:
|
||
BMW VEHICLE LEASE TRUST 2023-2
|
||
By:
|
WILMINGTON TRUST, NATIONAL
|
|
ASSOCIATION, not in its individual
|
||
capacity but solely as Owner Trustee
|
||
By:
|
|
|
Name:
|
||
Title:
|
||
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION,
|
||
not in its individual capacity but solely as
|
||
Indenture Trustee
|
||
By:
|
|
|
Name:
|
||
Title:
|
ARTICLE I. DEFINITIONS
|
1
|
|
Section 1.01
|
Definitions.
|
1
|
ARTICLE II. ENGAGEMENT; ACCEPTANCE
|
3
|
|
Section 2.01
|
Engagement; Acceptance.
|
3
|
Section 2.02
|
Eligibility of Asset Representations Reviewer.
|
3
|
Section 2.03
|
Independence of the Asset Representations Reviewer.
|
3
|
ARTICLE III. DUTIES OF THE ASSET REPRESENTATIONS REVIEWER
|
3
|
|
Section 3.01
|
Review Scope.
|
3
|
Section 3.02
|
Review Notices.
|
4
|
Section 3.03
|
Review Materials.
|
4
|
Section 3.04
|
Missing or Insufficient Review Materials.
|
5
|
Section 3.05
|
The Asset Representations Review.
|
5
|
Section 3.06
|
Review Period.
|
5
|
Section 3.07
|
Completion of Review for Certain Review Assets.
|
5
|
Section 3.08
|
Review Report.
|
6
|
Section 3.09
|
Review and Procedure Limitations.
|
6
|
Section 3.10
|
Review Systems.
|
7
|
Section 3.11
|
Representatives.
|
7
|
Section 3.12
|
Dispute Resolution.
|
7
|
Section 3.13
|
Records Retention.
|
7
|
ARTICLE IV. PAYMENTS TO ASSET REPRESENTATIONS REVIEWER
|
8
|
|
Section 4.01
|
Asset Representations Reviewer Fees.
|
8
|
Section 4.02
|
Reimbursable Expenses.
|
9
|
Section 4.03
|
Dispute Resolution Expenses.
|
9
|
ARTICLE V. OTHER MATTERS PERTAINING TO THE ASSET REPRESENTATIONS REVIEWER
|
9
|
|
Section 5.01
|
Representations and Warranties of the Asset Representations Reviewer.
|
9
|
Section 5.02
|
Limitation of Liability.
|
10
|
Section 5.03
|
Inspections of Asset Representations Reviewer
|
11
|
Section 5.04
|
Indemnification of Asset Representations Reviewer.
|
11
|
Section 5.05
|
Proceedings
|
12
|
Section 5.06
|
Delegation of Obligations
|
12
|
Section 5.07
|
Indemnification by Asset Representations Reviewer.
|
12
|
ARTICLE VI. REMOVAL, RESIGNATION
|
13
|
|
Section 6.01
|
Removal of Asset Representations Reviewer.
|
13
|
Section 6.02
|
Appointment of Successor.
|
13
|
Section 6.03
|
Merger or Consolidation of, or Assumption of the Obligations of, Asset the Representations Reviewer.
|
14
|
Section 6.04
|
Asset Representations Reviewer Not to Resign.
|
14
|
Section 6.05
|
Cooperation of Asset Representations Reviewer.
|
14
|
ARTICLE VII. TREATMENT OF CONFIDENTIAL INFORMATION
|
15
|
|
Section 7.01
|
Confidential Information.
|
15
|
Section 7.02
|
Safeguarding Personally Identifiable Information.
|
16
|
ARTICLE VIII. OTHER MATTERS PERTAINING TO THE ISSUER
|
18
|
|
Section 8.01
|
Termination of the Issuer.
|
18
|
ARTICLE IX. MISCELLANEOUS PROVISIONS
|
19
|
|
Section 9.01
|
Amendment.
|
19
|
Section 9.02
|
Notices.
|
19
|
Section 9.03
|
Severability Clause.
|
20
|
Section 9.04
|
Counterparts.
|
20
|
Section 9.05
|
Governing Law.
|
21
|
Section 9.06
|
Relationship of the Parties.
|
21
|
Section 9.07
|
Captions.
|
21
|
Section 9.08
|
Waivers.
|
21
|
Section 9.09
|
Assignment.
|
21
|
Section 9.10
|
Benefit of the Agreement; Third-Party Beneficiaries.
|
21
|
Section 9.11
|
Exhibits.
|
22
|
Section 9.12
|
No Petition.
|
22
|
Section 9.13
|
Limitation of Liability of Owner Trustee.
|
22
|
(a) |
reason for delinquency;
|
(b) |
creditworthiness of the Lessees, either at the time of the Review or as of the time of the origination of the related 2023-2 Leases;
|
(c) |
overall quality of any Review Asset;
|
(d) |
whether the Servicer has serviced any 2023-2 Lease in compliance with the terms of the Servicing Supplement;
|
(e) |
whether noncompliance with the representations or warranties constitutes a breach of the Servicing Supplement;
|
(f) |
whether the 2023-2 Leases complied with the representations and warranties set forth in the Servicing Supplement, except as expressly described in this Agreement; or
|
(g) |
establish cause, materiality or recourse for any failed Test as described in Section 3.05.
|
By: |
Wilmington Trust, National Association,
not in its individual capacity but solely as Owner Trustee |
Representations and Warranties
Made as of the Closing Date
(or as of Such Other Date Specified Below)
|
Tests
|
1. The 2023-2 Vehicle was a new BMW passenger car or BMW light truck at the time of origination of the related 2023-2 Lease.
|
1. Observe the related Lease Agreement and confirm that the 2023-2 Vehicle is described therein as being a new BMW passenger car or BMW light truck.
|
2. The 2023-2 Vehicle has a model year of 2020 or later.
|
2. Observe the related Lease Agreement and confirm that the 2023-2 Vehicle is described therein as having a model year of 2020 or later.
|
3. The 2023-2 Lease provides for level payments that fully amortize the Adjusted Capitalized Cost of the 2023-2 Lease at the related Lease Rate to the related
Contract Residual Value over the lease term and, in the event of a lessee-initiated early termination, provides for payment of the related Early Termination Cost.
|
3. Observe the related Lease Agreement and confirm that, as of the Closing Date: (i) each Monthly Payment was described therein as being equal, except that the
final payment may be different, (ii) such Monthly Payments fully amortize the Adjusted Capitalized Cost to the Contract Residual Value over the term of such 2023-2 Lease, and (iii) such Lease Agreement contained language indicating that the
related Lessee will have to pay Early Termination Costs if such Lessee initiates early termination of such 2023-2 Lease.
|
4. The 2023-2 Lease was originated on or after February 1, 2021.
|
4. Observe the related Lease Agreement and confirm that the origination date of the 2023-2 Lease is described therein as being a date on or after February 1,
2021.
|
5. The 2023-2 Lease has a Maturity Date on or after the January 2024 Payment Date and no later than the August 2026 Payment Date.
|
5. Observe the related Lease Agreement and confirm that, as of the Closing Date, the Maturity Date of the related 2023-2 Lease described therein was: (i) on or
after the Payment Date in January 2024 and (ii) no later than the Payment Date in August 2026.
|
6. The 2023-2 Lease is not more than 29 days past due as of the Cutoff Date.
|
6. Observe the data tape provided by BMW FS for the purposes of such review (the “Data Tape”) and confirm that, as of the Closing Date, the 2023-2 Lease
is not described thereon as being more than 29 days past due as of the Cutoff Date.
|
7. The 2023-2 Lease was originated by BMW FS in the United States, for a Lessee with a U.S. address, in the ordinary course of BMW FS’ business and in
compliance with BMW FS’ customary credit policies and practices.
|
7. Observe the related Lease Agreement and confirm that, as of the Closing Date: (i) the Lessee’s address was within the United States of America (exclusive of
any territories, army post offices, fleet post offices and diplomatic post offices) and (ii) such Lease Agreement was on a form included in the list of approved forms of lease agreements provided to Clayton Fixed Income Services LLC (“Clayton”)
by BMW FS.
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8. The 2023-2 Lease is a U.S. dollar-denominated obligation.
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8. Observe the related Lease Agreement and confirm that the Monthly Payments required to be made by the related Lessee are not specifically described as being
in a currency other than U.S. dollars.
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Representations and Warranties
Made as of the Closing Date
(or as of Such Other Date Specified Below)
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Tests
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9. The 2023-2 Lease was created in compliance in all material respects with all applicable federal and state laws, including consumer credit, truth in lending,
equal credit opportunity and applicable disclosure laws.
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9. Observe the related Lease Agreement and confirm that, as of the Closing Date, such Lease Agreement was on a form included in the list of approved forms of
lease agreements provided to Clayton by BMW FS.
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10. The 2023-2 Lease (a) is a legal, valid and binding payment obligation of the Lessee, enforceable against the Lessee in accordance with its terms, as
amended, (b) has not been satisfied, subordinated, rescinded, canceled or terminated, and (c) no right of rescission, setoff, counterclaim or defense with respect to such 2023-2 Lease has been asserted or threatened in writing.
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10. Observe the related Lease Agreement and confirm that, as of the Closing Date, such Lease Agreement was on a form included in the list of approved forms of
lease agreements provided to Clayton by BMW FS. Observe the Data Tape and confirm that, as of the Closing Date, the 2023-2 Lease has one of the status codes provided by BMW FS to Clayton for the purpose of such confirmation. Observe the
related 2023-2 Lease in the Data Tape and confirm it was an active account on the Closing Date.
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11. For each 2023-2 Lease that was executed electronically, an electronic executed copy of the documentation associated with the 2023-2 Lease is located at one
of BMW FS’ offices.
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11. Observe the electronic Lease Agreement in BMW FS’ customer service system and confirm that, if the related Lease Agreement was executed electronically, an
electronic copy of the executed Lease Agreement appears therein.
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12. The 2023-2 Lease requires the related Lessee to obtain physical damage and liability insurance that names BMW FS or the lessor as loss payee covering the
related 2023-2 Vehicle.
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12. Observe the related Lease Agreement and confirm that, as of the Closing Date, the face of such Lease Agreement required that the related Lessee to obtain
physical damage and liability insurance naming BMW FS or the lessor as loss payee.
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13. The 2023-2 Lease has been validly assigned to the Vehicle Trust by the related Center and is owned by the Vehicle Trust, free of all liens, encumbrances or
rights of others other than liens relating to administration of title and tax issues.
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13. Observe (a) the copy of the related Lease Agreement in the Lease File and confirm on the face of the Lease Agreement that it is marked appropriately to
indicate the assignment of the related 2023-2 Lease to the Vehicle Trust and (b) the related Lease Agreement and confirm there is no notation on the face of the related Lease Agreement of any lien, encumbrances or rights of others (other than
liens relating to administration of title and tax issues).
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14. As of the Cutoff Date, the Lessee of the 2023-2 Lease has a garaging state address in a Trust State and such Lessee is not BMW FS, the Depositor or any of
their respective affiliates.
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14. Observe the face of the related Lease Agreement and confirm that, as of the Cutoff Date, (i) the garaging state address of the related Lessee was in a State
on the list of Trust States provided to Clayton by BMW FS, and (ii) the Lessee is not BMW FS, the Depositor or any other entity on the list of affiliates provided to Clayton by BMW FS.
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Representations and Warranties
Made as of the Closing Date
(or as of Such Other Date Specified Below)
|
Tests
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15. The Certificate of Title for the vehicle related to the 2023-2 Lease is registered in the name of the Vehicle Trust or the Vehicle Trustee (or a properly
completed application for such certificate of title has been submitted to the appropriate titling authority).
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15. Observe the related Lease File and confirm that either (i) the copy of the Certificate of Title for the related 2023-2 Vehicle contained therein is
registered to the Vehicle Trust or the Vehicle Trustee or (ii) such Lease File contains evidence that, as of the Closing Date, a properly completed application for the Certificate of Title to be registered to the Vehicle Trust or the Vehicle
Trustee has been submitted to a titling authority.
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16. The 2023-2 Lease is a closed-end lease that required all Monthly Payments to be made within 36 months of the date of origination of such lease.
|
16. Observe the related Lease Agreement and confirm that, as of the Closing Date, the lease term stated on the face of such Lease Agreement was no more than 36
months.
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17. The 2023-2 Lease is fully assignable and does not require the consent of the Lessee as a condition to any transfer, sale or assignment of the rights of the
related originator.
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17. Observe the related Lease Agreement and confirm that the face of such Lease Agreement contains a statement thereon indicating that the 2023-2 Lease may be
transferred, sold or assigned without the consent of the related Lessee.
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18. The 2023-2 Lease has not been deferred or otherwise modified except in accordance with BMW FS’ normal credit and collection policies and practices.
|
18. Observe the related Lease File and confirm that, as of the Closing Date, the 2023-2 Lease has not been deferred or otherwise modified except in accordance
with BMW FS’ normal credit and collection policies and practices.
|
19. The 2023-2 Lease is not an asset of an Other SUBI.
|
19. Observe the Data Tape and confirm that the 2023-2 Lease is described therein as being an asset of the 2023-2 SUBI (through a unique “IT” code to be provided
by BMW) which identifies the 2023-2 SUBI.
|
20. The servicing systems of BMW FS do not indicate that the Lessee of the 2023-2 Lease is currently the subject of a bankruptcy proceeding.
|
20. Observe the Data Tape and confirm that, as of the Closing Date, the 2023-2 Lease is not described thereon as being the subject of a bankruptcy proceeding.
|
21. The 2023-2 Lease constitutes tangible “chattel paper” or “electronic chattel paper” for purposes of the UCC and, if such 2023-2 Lease constitutes “electronic
chattel paper,” the Vehicle Trust has “control” (as such term is used in Section 9-105 of the UCC) over the “authoritative copy” (as such term is used in Section 9-105 of the UCC) of such 2023-2 Lease.
|
21. Observe the related Lease Agreement and confirm that (i) such Lease Agreement was on a form included in the list of approved forms of lease agreements
provided to Clayton by BMW FS, and (ii) if such Lease Agreement was completed electronically, the face of such Lease Agreement indicates that it is the “Authoritative Copy”.
|
|
|
ARTICLE ONE
|
DEFINITIONS
|
1
|
Section 1.01.
|
General Definitions
|
1
|
Section 1.02.
|
Incorporation of UCC by Reference
|
2
|
ARTICLE TWO
|
ESTABLISHMENT OF CONTROL OVER SECURITIES ACCOUNTS
|
3
|
Section 2.01.
|
Establishment of the Accounts
|
3
|
Section 2.02.
|
“Financial Assets” Election
|
3
|
Section 2.03.
|
Entitlement Orders
|
3
|
Section 2.04.
|
Subordination of Lien; Waiver of Set-Off
|
3
|
Section 2.05.
|
Notice of Adverse Claims
|
3
|
ARTICLE THREE
|
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE SECURITIES INTERMEDIARY
|
4
|
Section 3.01.
|
Representations, Warranties and Covenants of the Securities Intermediary
|
4
|
ARTICLE FOUR
|
MISCELLANEOUS
|
5
|
Section 4.01.
|
Choice of Law
|
5
|
Section 4.02.
|
Conflict with other Agreements
|
5
|
Section 4.03.
|
Amendments
|
5
|
Section 4.04.
|
Successors
|
5
|
Section 4.05.
|
Notices
|
5
|
Section 4.06.
|
Termination
|
5
|
Section 4.07.
|
Counterparts
|
6
|
Section 4.08.
|
Limitation of Liability of Owner Trustee
|
6
|
Section 4.09.
|
Communications with Rating Agencies
|
6
|
Section 4.10.
|
Limitation of Liability of Secured Party
|
6 |
Section 4.11.
|
Rights of the Securities Intermediary
|
7 |
BMW VEHICLE LEASE TRUST 2023-2,
|
||
as Issuer
|
||
By:
|
Wilmington Trust, National Association, not in its
|
|
individual capacity but solely as Owner Trustee
|
||
By:
|
|
|
Name:
|
||
Title:
|
||
U.S. BANK TRUST COMPANY, NATIONAL
|
||
ASSOCIATION,
|
||
not in its individual capacity but solely as Indenture Trustee
|
||
and as Secured Party
|
||
By:
|
|
|
Name:
|
||
Title:
|
||
U.S. BANK NATIONAL ASSOCIATION,
|
||
as Securities Intermediary
|
||
By:
|
|
|
Name:
|
||
Title:
|