EXHIBIT 10.1
SUBSEQUENT TRANSFER AGREEMENT
SUBSEQUENT TRANSFER AGREEMENT (the "Agreement") dated as of
October 17, 2001, by and among BMW FS Securities LLC, a Delaware limited
liability company ("the Depositor"), BMW Vehicle Owner Trust 2001-A, a Delaware
business trust (the "Trust"), BMW Financial Services NA, LLC, a Delaware limited
liability company ("BMW FS"), and The Chase Manhattan Bank, a New York banking
corporation, as indenture trustee under the Indenture (the "Indenture Trustee").
Reference is hereby made to the Sale and Servicing
Agreement (the "Sale and Servicing Agreement") dated as of May 1, 2001, among
the Depositor, the Indenture Trustee, the Trust and BMW FS, and the Receivables
Purchase Agreement (the "Purchase Agreement") dated as of May 1, 2001, between
BMW FS and the Depositor.
WHEREAS, the Depositor wishes to sell the Subsequent
Receivables set forth in Schedule A hereto to the Trust, and the Trust wishes to
purchase such Subsequent Receivables and to pledge such Subsequent Receivables
to the Indenture Trustee, all in accordance with the provisions of the Sale and
Servicing Agreement and the Indenture;
NOW, THEREFORE, BMW FS, the Depositor, the Trust and the
Indenture Trustee hereby agree as follows:
Section 1.01. Definitions. Capitalized terms used herein
and not otherwise defined herein shall the meanings ascribed to them in the Sale
and Servicing Agreement.
Section 1.02. Subsequent Receivables. Schedule A attached
hereto sets forth the Subsequent Receivables being transferred hereby by the
Depositor to the Trust having an aggregate principal balance of $98,465,590.34
as of October 1, 2001 (the "Subsequent Cutoff Date").
Section 1.03. Transfer of Subsequent Receivables to the
Trust. Pursuant to and upon the representations, warranties and agreements on
the part of BMW FS and the Depositor in the Subsequent Purchase Agreement and
the Sale and Servicing Agreement and the Receivables Purchase Agreement and in
consideration of the purchase price of $98,465,590.34, the Depositor does hereby
sell, assign, transfer and otherwise convey unto the Trust, without recourse
(except as expressly provided in the Sale and Servicing Agreement), all right,
title and interest of the Depositor in and to: (1) the Subsequent Receivables
and all moneys received thereon on or after the Subsequent Cutoff Date listed on
Schedule A to this Agreement; (2) the security interests in the Financed
Vehicles and any accessions thereto granted by Obligors pursuant to the
Subsequent Receivables and any other interest of the Depositor in such Financed
Vehicles; (3) any Liquidation Proceeds and any other proceeds with respect to
the Subsequent Receivables from claims on any physical damage, credit life or
disability insurance policies covering the Financed Vehicles or the related
Obligors, including any vendor's single interest or other collateral protection
insurance policy; (4) any property that shall have secured a Subsequent
Receivable and shall have been acquired by or on behalf of the Depositor, the
Servicer or the Trust; (5) all documents and other items contained in the
Receivable Files; (6) all of the Depositor's rights (but not its obligations)
under the Subsequent Purchase Agreement; (7) all right, title and interest in
all funds on deposit from time to time in the Trust Accounts and the Certificate
Distribution Account and in all investments therein and proceeds thereof
(including all Investment Earnings thereon); (8) any proceeds from any
Subsequent Receivable repurchased by a Dealer pursuant to a Dealer Agreement;
and (9) the proceeds of any and all of the foregoing. The foregoing sale does
not constitute and is not intended to result in any assumption by the Trust of
any obligation of either the Depositor or BMW FS to the Obligors, insurers or
any other person in connection with the Subsequent Receivables, Receivable
Files, any insurance policies or any agreement or instrument relating to any of
them.
Section 1.04. Withdrawal from the Pre-Funding Account.
Pursuant to Section 5.09(a) of the Sale and Servicing Agreement, the Indenture
Trustee is hereby directed to (i) withdraw $98,465,590.34 from the Pre-Funding
Account representing the Principal Balance of the Subsequent Receivables
transferred to the Issuer on such Subsequent Transfer Date less the Reserve
Account Subsequent Deposit Amount for such Subsequent Transfer Date and
distribute such amount to or upon the order of the Depositor and (ii) withdraw
$1,499,476.00 from the Pre-Funding Account representing the Reserve Account
Subsequent Deposit Amount for such Subsequent Transfer Date and, on behalf of
the Depositor, to deposit such amount in the Reserve Account.
Section 1.05. Representations of BMW FS.
(a) BMW FS hereby consents to the assignment by the
Depositor to the Trust of the Depositor's rights with respect to the
representations and warranties made by BMW FS in the Purchase Agreement and the
Subsequent Purchase Agreement with regard to the Subsequent Receivables and BMW
FS. Such representations and warranties speak as of the execution and delivery
of this Agreement, but shall survive the delivery of the Subsequent Receivables
to the Indenture Trustee or the Custodian. Pursuant to this Agreement, the
Depositor has sold, assigned, transferred and conveyed to the Trust its rights
under the Purchase Agreement, including its rights with respect to the
representations and warranties of BMW FS, upon which the Trust relies in
accepting the Subsequent Receivables.
(b) BMW FS hereby agrees that the Indenture Trustee on
behalf of the Trust shall have the right to enforce any and all rights under the
Purchase Agreement and the Subsequent Purchase Agreement assigned herein to such
party, including the right to cause BMW FS to repurchase any Subsequent
Receivable with respect to which it is in breach of any of its representations
and warranties, directly against BMW FS as though the Indenture Trustee or the
Trust was a party to the Purchase Agreement and the Subsequent Purchase
Agreement, and the Indenture Trustee shall not be obligated to exercise any such
rights indirectly through the Depositor.
Section 1.06. Representations of the Depositor. The
Depositor represents and warrants to the Trust that the representations and
warranties of the Depositor in the Sale and Servicing Agreement with respect to
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the Subsequent Receivables and the Depositor are true and correct as of the date
of this Agreement and hereby certifies that:
(a) the original term of the Subsequent Receivables is not
more than 66 months;
(b) the minimum APR for the Subsequent Receivables is
6.10%;
(c) the aggregate weighed average APR of the Subsequent
Receivables is not less than 8.00%;
(d) none of the Subsequent Receivables will have a final
scheduled payment date later than six months prior to the Final Scheduled
Payment Date of the Class B Notes;
(e) after the inclusion of the Subsequent Receivable, at
least 45% of the aggregate principal balance of the Receivables is secured by
Financed Vehicles which were new at the date of origination; and
(f) All other conditions precedent set forth in Section
2.01(b) of the Sale and Servicing Agreement relating to the conveyance of
Subsequent Receivables to the Trust have been satisfied.
Section 1.07. Severability. Any provision of this Agreement
that is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
Section 1.08. Separate Counterparts. This Agreement may be
executed by the parties hereto in separate counterparts, each of which when so
executed and delivered shall be an original, but all such counterparts shall
together constitute but one and the same instrument.
Section 1.09. Headings. The headings of the various
Sections herein are for convenience of reference only and shall not define or
limit any of the terms or provisions hereof.
Section 1.10. 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, AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.
Section 1.11. Limitation of Liabilities. It is expressly
understood and agreed by the parties hereto that (a) this Subsequent Transfer
Agreement is executed and delivered by Wilmington Trust Company, not
individually or personally but solely as Owner Trustee of BMW Vehicle Owner
Trust 2001-A, in the exercise of the powers and authority conferred and vested
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in it, (b) each of the representations, undertakings and agreements herein made
on the part of the Issuer is made and intended not as personal representations,
undertakings and agreements by Wilmington Trust Company but is made and intended
for the purpose for binding only the Issuer, (c) nothing herein contained shall
be construed as creating any liability on Wilmington Trust Company, individually
or personally, to perform any covenant either expressed or implied contained
herein, all such liability, if any, being expressly waived by the parties hereto
and by any Person claiming by, through or under the parties hereto and (d) under
no circumstances shall Wilmington Trust Company be personally liable for the
payment of any indebtedness or expenses of the Issuer or be liable for the
breach or failure of any obligation, representation, warranty or covenant made
or undertaken by the Issuer under this Subsequent Trust Agreement or any other
related documents.
Section 1.12. Ratification of Agreement. As supplemented by
this Agreement, the Sale and Servicing Agreement is in all respects ratified and
confirmed and the Sale and Servicing Agreement as so supplemented by this
Agreement shall be read, taken and construed as one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this
Subsequent Transfer Agreement to be duly executed by their respective officers
as of the day and year first above written.
BMW VEHICLE OWNER TRUST 2001-A
By: WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Owner Trustee
By: /s/ Xxxxxx X. Xxxx
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Name: Xxxxxx X. Xxxx
Title: Senior Financial Services Officer
BMW FINANCIAL SERVICES NA, LLC
By: /s/ Xxxxxxx Xxxxx
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Name: Xxxxxxx Xxxxx
Title: Treasurer
By: /s/ Xxxxx Xxxxxxx
-----------------------------------------
Name: Xxxxx Xxxxxxx
Title: Assistant Secretary
BMW FS SECURITIES LLC
By: /s/ Xxxxxxx Xxxxx
-----------------------------------------
Name: Xxxxxxx Xxxxx
Title: Treasurer
By: /s/ Xxxxx Xxxxxxx
-----------------------------------------
Name: Xxxxx Xxxxxxx
Title: Assistant Secretary
THE CHASE MANHATTAN BANK,
not in its individual capacity but
solely as Indenture Trustee
By: /s/ Xxxxxxxx X.X. Xxxxx
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Name: Xxxxxxxx X.X. Xxxxx
Title: Vice-President
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SCHEDULE A TO
SUBSEQUENT TRANSFER AGREEMENT NO. 1
Schedule of Subsequent Receivables
[Omitted. On file with the Indenture Trustee,
the Owner Trustee and the Servicer]
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