EXHIBIT 10.6
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BMW AUTO LEASING LLC,
as Transferor,
and
BMW VEHICLE LEASE TRUST 2000-A,
as Transferee
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ISSUER SUBI CERTIFICATE TRANSFER AGREEMENT
Dated as of November 1, 2000
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TABLE OF CONTENTS
PAGE
ARTICLE One
DEFINITIONS
Section 1.01. Definitions...........................................................................2
Section 1.02. Interpretive Provisions...............................................................2
ARTICLE Two
TRANSFER OF 2000-A VEHICLE SUBI CERTIFICATE
Section 2.01. Transfer of 2000-A Vehicle 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
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....................................................................7
Section 3.08. Third-Party Beneficiaries.............................................................8
Section 3.09. No Petition...........................................................................8
Section 3.10. Limitation of Liability of Owner Trustee..............................................8
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ISSUER SUBI CERTIFICATE TRANSFER AGREEMENT
This Issuer SUBI Certificate Transfer Agreement, dated as of November
1, 2000 (the "Agreement"), is between BMW Auto Leasing LLC, a Delaware limited
liability company, as transferor (the "Transferor"), and BMW Vehicle Lease Trust
2000-A, a Delaware business trust (the "Issuer"), as transferee (in such
capacity, the "Transferee").
RECITALS
WHEREAS, BMW Manufacturing LP ("BMW LP"), as Grantor and UTI
Beneficiary and Chase Manhattan Bank USA, N.A., as Trustee, have entered into
that certain amended and restated trust agreement, dated as of September 27,
1996, as further amended as of May 25, 2000 (the "Vehicle Trust Agreement"),
pursuant to which Financial Services Vehicle Trust, a Delaware business trust
(the "Trust"), will take assignments and conveyances of and hold in trust
various assets (the "Trust Assets");
WHEREAS, the parties to the Vehicle Trust Agreement supplemented the
Vehicle Trust Agreement with a supplement, dated as of November 1, 2000
(together with the Vehicle Trust Agreement, the "SUBI Trust Agreement"), to
establish two special units of beneficial interest, the "2000-A Lease SUBI" and
the "2000-A Vehicle SUBI" (each, a "2000-A SUBI");
WHEREAS, in connection with the SUBI Trust Agreement a separate
portfolio of Leases (the "Specified Leases") and certain other related assets of
the Vehicle Trust have been allocated to 2000-A Lease SUBI, and the Vehicles
that are leased under the Specified Leases (the "Specified Vehicles") and
certain other related assets of the Vehicle Trust will be allocated to 2000-A
Vehicle SUBI;
WHEREAS, the Vehicle Trust has issued to BMW LP certificates evidencing
a beneficial interest in each 2000-A SUBI ("2000-A SUBI Certificates");
WHEREAS, BMW LP has transferred and assigned, without recourse, all of
BMW LP's right, title and interest in and to the 2000-A SUBI Certificates to the
Transferor pursuant to that certain SUBI certificate transfer agreement, dated
as of November 1, 2000 (the "SUBI Certificate Transfer Agreement"), between BMW
LP and the Transferor;
WHEREAS, the Issuer was formed pursuant to that certain trust
agreement, dated as of August 3, 2000, as amended and restated as of November 1,
2000 (the "Trust Agreement"), between the Transferor and Wilmington Trust
Company, as owner trustee;
WHEREAS, the Transferor and the Transferee desire to enter into this
Agreement to provide for the transfer and assignment by the Transferor to the
Transferee, without recourse, of all of the Transferor's right, title and
interest in and to the 2000-A Vehicle SUBI Certificate and the interest in the
respective 2000-A Vehicle SUBI represented thereby; and
WHEREAS, immediately after the transfer of the 2000-A Vehicle SUBI
Certificate to the Issuer, the Issuer shall pledge the 2000-A Vehicle SUBI
Certificate to The Chase Manhattan Bank, as Indenture Trustee (the "Indenture
Trustee") pursuant to that certain indenture, dated as of November 1, 2000 (the
"Indenture"), between the Issuer and the Indenture Trustee.
NOW, THEREFORE, in consideration of the promises and the mutual
covenants herein contained, the parties hereto agree as follows:
ARTICLE ONE
DEFINITIONS
Section 1.01 Definitions. Capitalized terms used herein that are not
otherwise defined shall have the meanings ascribed thereto in the SUBI Trust
Agreement or the Trust Agreement, as the case may be.
"Agreement" means this Agreement, as amended or supplemented from time
to time.
"Assets" has the meaning set forth in Section 2.01.
"SUBI Trust Agreement" has the meaning set forth in the recitals.
"Trust Agreement" has the meaning set forth in the recitals.
Section 1.02 Interpretive Provisions. For all purposes of this
Agreement, except as otherwise expressly provided or unless the context
otherwise requires, (i) terms used in this Agreement include, as appropriate,
all genders and the plural as well as the singular, (ii) references to words
such as "herein", "hereof" and the like shall refer to this Agreement as a whole
and not to any particular part, Article or Section within this Agreement, (iii)
the term "include" and all variations thereof shall mean "include without
limitation" and (iv) the term "proceeds" shall have the meaning ascribed thereto
in the UCC.
ARTICLE TWO
TRANSFER OF 2000-A VEHICLE SUBI CERTIFICATE
Section 2.01 Transfer of 2000-A Vehicle SUBI Certificate. In
consideration of the Transferee's delivery to, or upon the order of, the
Transferor of cash in the amount of $[ ] (the "Transfer Price"), the Transferor
hereby absolutely sells, transfers, assigns and otherwise conveys to the
Transferee, without recourse, and the Transferee does hereby purchase and
acquire all of the following (collectively, the "Assets"):
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(i) all right, title and interest in and to the 2000-A
Vehicle SUBI Certificate and the interest in the 2000-A Vehicle SUBI
represented thereby, including all monies due and paid thereon or in
respect thereof;
(ii) the beneficial rights evidenced thereby in any
property that underlies or may be deemed to secure the interest in
the 2000-A Vehicle SUBI represented by the 2000-A Vehicle SUBI
Certificate;
(iii) all of the Transferor's rights and benefits, as
Holder of the 2000-A Vehicle SUBI Certificate under the Servicing
Agreement and the SUBI Trust Agreement;
(iv) all of the Transferor's rights to and benefits in the
2000-A Vehicle SUBI under the Vehicle SUBI Certificate Transfer
Agreement; and
(v) all proceeds of the foregoing.
Section 2.02. True Sale. The parties hereto intend that the sale,
transfer and assignment of the Assets constitute a true sale and assignment of
the Assets such that any interest in and title to the Assets would not be
property of the Transferor's estate in the event the Transferor becomes a debtor
in a case under any bankruptcy law. To the extent that the conveyance of the
Assets hereunder is characterized by a court or similar governmental authority
as a financing, it is intended by the Transferor and the Transferee that the
interest conveyed constitute a first priority grant of a perfected security
interest under the UCC as in effect in the State of New York by the Transferor
to the Transferee to secure the Transfer Price to the Transferor. The Transferor
does hereby grant to the Transferee a security interest in all of its rights,
title and privileges and interest in and to the Assets and the parties hereto
agree that this Agreement constitutes a "security agreement" under all
applicable law.
Section 2.03. Representations and Warranties of the Transferor and
the Transferee.
(a) The Transferor hereby represents and warrants to the Transferee
as of the date of this Agreement and the Closing Date that:
(i) Organization and Good Standing. The Transferor is a
limited liability company duly formed, validly existing and in good
standing under the laws of the State of Delaware, and has power and
authority to own its properties and to conduct its business as such
properties are currently owned and such business is presently
conducted, and had at all relevant times, and shall have, power,
authority and legal right to acquire, own and sell the Assets.
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(ii) Due Qualification. The Transferor is duly qualified
to do business as a foreign limited partnership 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, except
where the failure to have any such license, approval or qualification
would not have a material adverse effect on the condition, financial
or otherwise, of the Transferor or would not have a material adverse
effect on the ability of the Transferor to perform its obligations
under this Agreement.
(iii) Power and Authority. The Transferor shall have the
power and authority to execute and deliver this Agreement and to
carry out its terms; and the execution, delivery and performance of
this Agreement shall have been duly authorized by the Transferor by
all necessary corporate action.
(iv) Binding Obligation. This Agreement constitutes a
legal, valid and binding obligation of the Transferor, enforceable
against it in accordance with its terms, except as enforceability may
be subject to or limited by bankruptcy, insolvency, reorganization,
moratorium, liquidation or other similar laws affecting the
enforcement of creditors' rights in general and by general principles
of equity, regardless of whether such enforceability shall be
considered in a proceeding in equity or at law.
(v) No Violation. The execution, delivery and performance
by the Transferor of this Agreement and the consummation of the
transactions contemplated by this Agreement and the fulfillment of
the terms hereof shall not conflict with, result in any breach of any
of the terms and provisions of, nor constitute (with or without
notice or lapse of time) a default under, the limited partnership
agreement of the Transferor, or conflict with or breach any of the
material terms or provisions of, or constitute (with or without
notice or lapse of time) a default under, any indenture, agreement or
other instrument to which the Transferor is a party or by which it
may be bound or any of its properties are subject; nor result in the
creation or imposition of any lien upon any of its properties
pursuant to the terms of any material indenture, agreement or other
instrument (other than this Agreement); nor violate any law or, to
the knowledge of the Transferor, any order, rule or regulation
applicable to it or its properties of any court or of any federal or
state regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Transferor or any of its
properties.
(vi) No Proceedings. There are no proceedings or
investigations pending or, to the knowledge of the Transferor,
threatened against the Transferor, before any court, regulatory body,
administrative agency or other tribunal or governmental
instrumentality (A) asserting the invalidity of this Agreement, (B)
seeking to prevent the consummation of any of the transactions
contemplated by this Agreement or (C) seeking any determination or
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ruling that, in the reasonable judgment of the Transferor, would
materially and adversely affect the performance by the Transferor of
its obligations under this Agreement.
(vii) Title to 2000-A Vehicle SUBI Certificate.
Immediately prior to the transfer of the 2000-A Vehicle SUBI
Certificate pursuant to this Agreement, the Transferor (A) is the
true and lawful owner of the 2000-A Vehicle SUBI Certificate and it
has the legal right to transfer the 2000-A Vehicle SUBI Certificate;
(B) has good and valid title to the 2000-A Vehicle SUBI Certificate
and the 2000-A Vehicle SUBI Certificate is on the date hereof free
and clear of all Liens; (C) will convey good, valid and indefeasible
title to the 2000-A Vehicle SUBI Certificate to the Transferee under
this Agreement.
(b) The Transferee hereby represents and warrants to the Transferor
as of the date of this Agreement and the Closing Date that:
(i) Organization and Good Standing. The Transferee is a
business trust duly formed, validly existing and in good standing
under the laws of the State of Delaware, and has power and authority
to own its properties and to conduct its business as such properties
are currently owned and such business is presently conducted, and had
at all relevant times, and shall have, power, authority and legal
right to acquire, own and sell the Assets.
(ii) Due Qualification. The Transferee is duly qualified
to do business as a foreign trust 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, except where the failure to have
any such license, approval or qualification would not have a material
adverse effect on the condition, financial or otherwise, of the
Transferee or would not have a material adverse effect on the ability
of the Transferee to perform its obligations under this Agreement.
(iii) Power and Authority. The Transferee shall have the
power and authority to execute and deliver this Agreement and to
carry out its terms; and the execution, delivery and performance of
this Agreement shall have been duly authorized by the Transferee by
all necessary corporate action.
(iv) Binding Obligation. This Agreement constitutes a
legal, valid and binding obligation of the Transferee, enforceable
against it in accordance with its terms, except as enforceability may
be subject to or limited by bankruptcy, insolvency, reorganization,
moratorium, liquidation or other similar laws affecting the
enforcement of creditors' rights in general and by general principles
of equity, regardless of whether such enforceability shall be
considered in a proceeding in equity or at law.
(v) No Violation. The execution, delivery and performance
of this Agreement by the Transferee and the consummation of the
transactions contemplated by this Agreement and the fulfillment of
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the terms hereof shall not conflict with, result in any breach of any
of the terms and provisions of, nor constitute (with or without
notice or lapse of time) a default under, the trust agreement of the
Transferee, or conflict with or breach any of the material terms or
provisions of, or constitute (with or without notice or lapse of
time) a default under, any indenture, agreement or other instrument
to which the Transferee is a party or by which it may be bound or any
of its properties are subject; nor result in the creation or
imposition of any lien upon any of its properties pursuant to the
terms of any material indenture, agreement or other instrument (other
than this Agreement); nor violate any law or, to the knowledge of the
Transferee, any order, rule or regulation applicable to it or its
properties of any court or of any federal or state regulatory body,
administrative agency or other governmental instrumentality having
jurisdiction over the Transferee or any of its properties.
(vi) No Proceedings. There are no proceedings or
investigations pending or, to the knowledge of the Transferee,
threatened against the Transferee, before any court, regulatory body,
administrative agency or other tribunal or governmental
instrumentality (A) asserting the invalidity of this Agreement, (B)
seeking to prevent the consummation of any of the transactions
contemplated by this Agreement or (C) seeking any determination or
ruling that, in the reasonable judgment of the Transferee, would
materially and adversely affect the performance by the Transferee of
its obligations under this Agreement.
(c) The representations and warranties set forth in this Section
shall survive the sale of the Assets by the Transferor to the Transferee and the
sale of the Assets by the Transferee to the Trust. Upon discovery by the
Transferor, the Transferee or the Trustee of a breach of any of the foregoing
representations and warranties, the party discovering such breach shall give
prompt written notice to the others.
Section 2.04. Financing Statement and Books and Records.
(a) In connection with the conveyance of the Assets hereunder, the
Transferor agrees that prior to the Closing Date, it will file, at its own
expense, one or more financing statements with respect to the Assets meeting the
requirements of applicable state law in such manner as necessary to perfect the
sale of the Assets to the Transferor, and the proceeds thereof (and any
continuation statements as are required by applicable state law), and to deliver
a file-stamped copy of each such financing statement (or continuation statement)
or other evidence of such filings (which may, for purposes of this Section,
consist of telephone confirmation of such filings with the file stamped copy of
each such filings to be provided to the Transferee in due course), as soon as is
practicable after receipt by the Transferor thereof.
(b) The Transferor further agrees that it will treat the transfer of
the Assets as a sale for accounting purposes, take no actions inconsistent with
the Transferee's ownership of the Assets and on or prior to the Closing Date
indicate on its books, records and statements that the Assets have been sold to
the Transferee.
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Section 2.05. Acceptance by the Transferee. The Transferee agrees to
comply with all covenants and restrictions applicable to a Holder of the 2000-A
Vehicle SUBI Certificate and the interest in the 1999-A Vehicle SUBI represented
thereby, whether set forth in the 2000-A Vehicle SUBI Certificate, in the SUBI
Trust Agreement or otherwise, and assumes all obligations and liabilities, if
any, associated therewith.
ARTICLE THREE
MISCELLANEOUS
Section 3.01. Amendment. This Agreement may be amended from time to
time in a writing signed by the parties hereto.
Section 3.02. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York without regard to
any otherwise applicable principles of conflicts of laws (other than Section
5-1401 of the New York General Obligations Law).
Section 3.03. Severability. If one or more of the covenants,
agreements or provisions of this Agreement shall be for any reason whatever held
invalid or unenforceable, such provisions shall be deemed severable from the
remaining covenants, agreements and provisions of this Agreement, and such
invalidity or unenforceability shall in no way affect the validity or
enforceability of such remaining covenants, agreements and provisions, or the
rights of any parties hereto. To the extent permitted by law, the parties hereto
waive any provision of law that renders any provision of this Agreement invalid
or unenforceable in any respect.
Section 3.04. Binding Effect. The provisions of this Agreement shall
be binding upon and inure to the benefit of the parties hereto and their
permitted successors and assigns.
Section 3.05. Headings. The Article and Section headings are for
convenience of reference only and shall not define or limit any of the terms or
provisions hereof.
Section 3.06. Counterparts. This Agreement may be executed in any
number of counterparts, each of which so executed and delivered shall be deemed
to be an original, but all of which counterparts shall together constitute but
one and the same instrument.
Section 3.07. Further Assurances. Each party hereto shall do such
acts, and execute and deliver to the other party such additional documents or
instruments as may be reasonably requested in order to effect the purposes of
this Agreement and to better assure and confirm unto the requesting party its
rights, powers and remedies hereunder.
Section 3.08. Third-Party Beneficiaries. Except as otherwise provided
in this Agreement, no Person shall have any right or obligation hereunder.
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Section 3.09. No Petition. Each of the parties hereto covenants and
agrees that prior to the date which is one year and one day after the date upon
which all obligations under each Securitized Financing have been paid in full,
it will not institute against, or join any other Person in instituting against
any Grantor, the Owner Trustee, the Trustee, any Special Purpose Affiliate, any
member of a Special Purpose Affiliate or any Grantor that is a limited liability
company (or any of their respective general partners) or any general partner of
a Special Purpose Affiliate or any Grantor that is a partnership, any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding or
other proceedings under any federal or state bankruptcy or similar law.
Section 3.10. Limitation of Liability of Owner Trustee.
Notwithstanding anything contained herein to the contrary, this instrument has
been countersigned by Wilmington Trust Company not in its individual capacity
but solely in its capacity as Owner Trustee of the Issuer and in no event shall
Wilmington Trust Company in its individual capacity or any beneficial owner of
the Issuer have any liability for the representations, warranties, covenants,
agreements or other obligations of the Issuer hereunder, as to all of which
recourse shall be had solely to the assets of the Issuer. For all purposes of
this Agreement, in the performance of any duties or obligations of the Issuer
hereunder, the Owner Trustee shall be subject to, and entitled to the benefits
of, the terms and provisions of Articles Six, Seven and Ten of the Trust
Agreement. Notwithstanding anything herein to the contrary, Section 2.07 of the
Trust Agreement shall remain in full force and effect.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective officers duly authorized as of the day and
year first above written.
BMW AUTO LEASING LLC,
as Transferor
By: BMW FINANCIAL SERVICES NA, LLC
as Managing Member
By:
------------------------------------------------
Name:
Title:
By:
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Name:
Title:
BMW VEHICLE LEASE TRUST 2000-A,
as Transferee
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as
Owner Trustee
By:
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Name:
Title:
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