Exhibit 1.1
EXECUTION COPY
BMW VEHICLE OWNER TRUST 2003-A
$1,634,605,000 ASSET BACKED NOTES
BMW FS SECURITIES LLC
(Depositor)
UNDERWRITING AGREEMENT
April 22, 2003
Citigroup Global Markets Inc.
as Representative of the several Underwriters
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
Section 1. Introductory. BMW FS Securities LLC (the "Depositor")
proposes to cause BMW Vehicle Owner Trust 2003-A (the "Trust") to issue and sell
$380,000,000 principal amount of its 1.27% Class A-1 Notes (the "Class A-1
Notes"), $455,000,000 principal amount of its 1.45% Class A-2 Notes (the "Class
A-2 Notes"), $470,000,000 principal amount of its 1.94% Class A-3 Notes (the
"Class A-3 Notes"), $296,913,000 principal amount of its 2.53% Class A-4 Notes
(the "Class A-4 Notes" and, together with the Class A-1 Notes, the Class A-2
Notes and the Class A-3 Notes, the "Class A Notes") and $32,692,000 principal
amount of its 2.93% Class B Notes (the "Class B Notes" and, together with the
Class A Notes, the "Notes") to the several underwriters set forth on Schedule I
(each, an "Underwriter"), for whom Citigroup Global Markets Inc. is acting as
representative (the "Representative"). The Notes will be issued pursuant to an
Indenture, dated as of April 1, 2003 (the "Indenture"), between the Trust and
Citibank, N.A., as indenture trustee (in such capacity, the "Indenture
Trustee"). The assets of the Trust will include, among other things, a pool of
motor vehicle retail installment sale contracts transferred to the Trust on the
Closing Date referred to in Section 3(a) hereof (the "Receivables") secured by
new and used automobiles, motorcycles, light-duty trucks and sport utility
vehicles financed thereby (the "Vehicles") and certain monies received
thereunder after the close of business on March 31, 2003 (the "Cutoff Date") and
other property and proceeds thereof to be conveyed to the Trust pursuant to a
Sale and Servicing Agreement, dated as of April 1, 2003 (the "Sale and Servicing
Agreement"), among the Trust, BMW Financial Services NA, LLC ("BMW Financial
Services"), as servicer (in such capacity, the "Servicer"), seller,
administrator and custodian, the Depositor and the Indenture Trustee. Pursuant
to the Sale and Servicing Agreement, the Depositor will sell the Receivables to
the Trust and the Servicer will service the Receivables on behalf of the Trust.
In addition, pursuant to an Owner Trust Administration Agreement, dated as of
April 1, 2003 (the "Owner Trust Administration Agreement"), among the Trust, BMW
Financial Services and the Indenture Trustee, BMW Financial Services will agree
to perform certain administrative duties on behalf of the Trust. The Depositor
formed the Trust pursuant to a Trust Agreement, dated March 21, 2003, as amended
and restated as of April 1, 2003 (the "Trust Agreement"), between the Depositor
and Wilmington Trust Company, as owner trustee (the "Owner Trustee"). The
Certificates, each representing a fractional undivided interest in the Trust,
will be issued pursuant to the Trust Agreement.
The Depositor will acquire the Receivables from BMW Financial
Services pursuant to a Receivables Purchase Agreement, dated as of April 1, 2003
(the "Receivables Purchase Agreement"), between the Depositor and BMW Financial
Services. BMW Financial Services will acquire the Receivables from BMW FS
Funding Corp. ("BFFC") pursuant to a Bill of Sale, dated as of April 1, 2003
(the "Bill of Sale"), between BFFC and BMW Financial Services.
Capitalized terms used but not otherwise defined herein shall have
the meanings set forth in the Sale and Servicing Agreement or the Indenture, as
the case may be. As used herein, the term "Transaction Documents" refers to the
Sale and Servicing Agreement, the Indenture, the Trust Agreement, the Bill of
Sale, the Receivables Purchase Agreement, the Owner Trust Administration
Agreement and the Note Depository Agreement.
Section 2. Representations and Warranties.
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(a) As a condition of the obligation of the Underwriters to purchase
the Notes, each of the Depositor and BMW Financial Services makes the
representations and warranties set forth below to each of the Underwriters.
To the extent a representation or warranty specifically relates to the
Depositor, the representation or warranty solely with respect to the
Depositor is only made by the Depositor and to the extent a representation
or warranty specifically relates to BMW Financial Services, the
representation or warranty solely with respect to BMW Financial Services is
only made by BMW Financial Services.
(i) A registration statement on Form S-3 (No. 333-103795),
including a prospectus, relating to the Notes has been filed with the
Securities and Exchange Commission (the "Commission") and has become
effective. Such registration statement, as amended as of the date of
this Agreement, together with any filings incorporated by reference
into it, is hereinafter referred to as the "Registration Statement,"
and the prospectus included in such Registration Statement, as
supplemented to reflect the terms of the Notes as first filed with the
Commission after the date of this Agreement pursuant to and in
accordance with Rule 424(b) ("Rule 424(b)") under the Securities Act
of 1933, as amended (the "Act"), including all material incorporated
by reference therein, is hereinafter referred to as the "Prospectus;"
a "preliminary prospectus" means any form of prospectus, including any
prospectus supplement, relating to the Notes used prior to the date of
this Agreement, if any, that is subject to completion; the "Base
Prospectus" means the base prospectus dated April 17, 2003 included in
the Prospectus; the "Prospectus Supplement" means the prospectus
supplement dated the date hereof included in the Prospectus.
(ii) On the effective date of the Registration Statement, such
Registration Statement conformed in all respects to the requirements
of the Act and the rules and regulations of the Commission promulgated
under the Act (the "Rules and Regulations") and did not include any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading, and on the date of this Agreement the
Registration Statement and the preliminary prospectus, if any,
conform, and at the time of the filing of the Prospectus in accordance
with Rule 424(b), the Registration Statement and the Prospectus will
conform in all respects to the requirements of the Act and the Rules
and Regulations, and neither of such documents includes or will
include any untrue statement of a material fact or omits or will omit
to state any material fact required to be stated therein or necessary
to make the statements therein not misleading. The preceding sentence
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does not apply to statements in or omissions from such documents based
upon written information furnished to the Depositor by the
Representative specifically for use therein (the "Underwriters'
Information") which information is limited to the information in the
third paragraph, the second sentence of the fifth paragraph and the
seventh paragraph under the heading "Underwriting" in each preliminary
prospectus, if any, and the Prospectus Supplement.
(iii) Since the respective dates as of which information is given
in the Registration Statement and the Prospectus there has not been
any material adverse change, or any development involving a
prospective material adverse change, in or affecting the condition,
financial or otherwise, earnings, business or operations of the
Depositor or BMW Financial Services, and their respective
subsidiaries, taken as a whole, except as disclosed to you in writing
prior to the date hereof.
(iv) The Notes are "asset backed securities" within the meaning
of, and satisfy the requirements for use of, Form S-3 under the Act.
(v) The documents incorporated by reference in the Registration
Statement and Prospectus, at the time they were or hereafter are filed
with the Commission, complied and will comply in all material respects
with the requirements of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and the rules and regulations of the
Commission thereunder.
(vi) The Trust Agreement need not be qualified under the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"), and the
Trust is not required to register under the Investment Company Act of
1940, as amended (the "Investment Company Act").
(vii) The Indenture has been qualified under the Trust Indenture
Act.
(viii) The Depositor (A) has filed the preliminary prospectus
supplement relating to the Notes pursuant to and in accordance with
Rule 424(b) or (B) has filed or will cause to be filed, as an exhibit
to a report on Form 8-K, with the Commission, within the time frame
set forth in Section 5(b) hereof, all Computational Materials (as
defined in Section 5(b) hereof) made available to prospective
investors.
(ix) The issuance and sale of the Notes have been duly authorized
by all necessary corporate action of the Depositor and, when executed,
authenticated and delivered to and paid for by the Underwriters in
accordance with the terms of this Agreement and the Indenture, the
Notes will be valid and binding obligations of the Trust, entitled to
the benefits of the Indenture and enforceable in accordance with their
terms except as the enforceability thereof may be limited by
bankruptcy, insolvency, reorganization or similar laws now or
hereafter in effect relating to or affecting creditors' rights
generally and to general principles of equity (whether applied in a
proceeding at law or in equity).
(x) Each of the Depositor, BMW Financial Services and BFFC has
been duly incorporated and is validly existing as a corporation or
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limited liability company, as the case may be, in good standing under
the law of its jurisdiction of formation or incorporation, as the case
may be, with full power and authority to own, lease and operate its
properties and assets and conduct its business as described in the
Prospectus, is duly qualified to transact business and is in good
standing in each jurisdiction in which its ownership, leasing or
operation of its properties or assets or the conduct of its business
requires such qualification, and has full power and authority to
execute and perform its obligations under this Agreement, the
Transaction Documents and the Notes.
(xi) The execution and delivery of this Agreement has been duly
authorized by all necessary corporate action of the Depositor and BMW
Financial Services, and this Agreement has been duly executed and
delivered by the Depositor and BMW Financial Services and when duly
executed and delivered by the other parties hereto will be the valid
and binding agreement of the Depositor and BMW Financial Services,
enforceable against the Depositor and BMW Financial Services in
accordance with its terms except as the enforceability thereof may be
limited by bankruptcy, insolvency, reorganization or similar laws now
or hereafter in effect relating to or affecting creditors' rights
generally and to general principles of equity (whether applied in a
proceeding at law or in equity).
(xii) The execution and delivery of the Transaction Documents
have been duly authorized by all necessary corporate action of the
Depositor, BFFC and BMW Financial Services and, when duly executed and
delivered by the Depositor, BMW Financial Services, BFFC and the other
parties thereto, will be valid and binding agreements of the
Depositor, BMW Financial Services and BFFC, enforceable against the
Depositor, BMW Financial Services and BFFC in accordance with their
terms except as the enforceability thereof may be limited by
bankruptcy, insolvency, reorganization or similar laws now or
hereafter in effect relating to or affecting creditors' rights
generally and to general principles of equity (whether applied in a
proceeding at law or in equity).
(xiii) The execution and delivery by the Depositor, BFFC and BMW
Financial Services of, and the performance by the Depositor and BMW
Financial Services of its obligations under, this Agreement, the
Transaction Documents and the Notes, the issuance and sale of the
Notes to the Underwriters by the Depositor pursuant to this Agreement,
the compliance by the Depositor and BMW Financial Services with the
other provisions of this Agreement and the consummation of the other
transactions herein contemplated do not (A) require the consent,
approval, authorization, registration or qualification of or with any
governmental authority, except such as have been obtained or made or
such as may be required by the state securities or Blue Sky laws of
the various states of the United States of America or other U.S.
jurisdictions in connection with the offering by the Underwriters or
(B) conflict with or result in a breach or violation or acceleration
of, or constitute a default under, any term or provision of the
organizational documents of the Depositor, BMW Financial Services or
BFFC, any indenture, mortgage, deed of trust, lease or other agreement
or instrument to which the Depositor, BMW Financial Services or BFFC
is a party or by which any of them or their properties is bound or
result in a violation of or contravene the terms of any statute, order
or regulation applicable to the Depositor, BMW Financial Services or
BFFC of any court, regulatory body, administrative agency,
governmental body or arbitrator having jurisdiction over the
Depositor, BMW Financial Services or BFFC, or will result in the
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creation of any lien upon any material property or assets of the
Depositor, BMW Financial Services or BFFC (other than pursuant to the
Transaction Documents).
(xiv) None of the Depositor, BMW Financial Services or BFFC is in
violation of any term or provision of its charter documents or
by-laws, or in breach of or in default under any statute or any
judgment, decree, order, rule or regulation of any court or other
governmental authority or any arbitrator applicable to the Depositor,
BMW Financial Services or BFFC, the consequence of which violation,
breach or default would have (A) a materially adverse effect on or
constitute a materially adverse change in, or constitute a development
involving a prospective materially adverse effect on or change in, the
condition (financial or otherwise), earnings, properties, business
affairs or business prospects, net worth or results of operations of
the Depositor, BMW Financial Services or BFFC or (B) a material and
adverse effect on its ability to perform its obligations under this
Agreement or any of the Transaction Documents to which it is a party.
(xv) Neither the Depositor nor BMW Financial Services nor anyone
acting on their behalf has taken any action that would require
registration of the Depositor or the Trust under the Investment
Company Act; nor will the Depositor or BMW Financial Services act, nor
has either of them authorized nor will either of them authorize any
person to act, in such manner.
(xvi) The Depositor, BFFC and BMW Financial Services each possess
all consents, licenses, certificates, authorizations and permits
issued by the appropriate federal, state or foreign regulatory
authorities necessary to conduct their respective businesses, and none
of the Depositor, BFFC or BMW Financial Services has received any
notice of proceedings relating to the revocation or modification of
any such certificate, authorization or permit which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or
finding, would have a material adverse effect on or constitute a
material adverse change in, or constitute a development involving a
prospective material adverse effect on or change in, the condition
(financial or otherwise), earnings, properties, business affairs or
business prospects, net worth or results of operations of the
Depositor, BFFC or BMW Financial Services, except as described in or
contemplated by the Prospectus.
(xvii) No legal or governmental proceedings are pending or
threatened to which the Depositor or BMW Financial Services is a party
or to which the property of the Depositor or BMW Financial Services is
subject except for such proceedings that would not, if the subject of
any unfavorable decision, ruling or finding, singly or in the
aggregate, have a material adverse effect on the condition (financial
or otherwise), earnings, properties, business affairs or business
prospects, net worth or results of operations of the Depositor or BMW
Financial Services or the Depositor's or BMW Financial Services'
ability to perform its obligations under this Agreement, the
Transaction Documents to which it is a party or the Notes.
(xviii) No default exists, and no event has occurred which, with
notice or lapse of time or both, would constitute a default in the due
performance and observance of any term, covenant or condition of any
indenture, mortgage, deed of trust, lease or other agreement or
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instrument to which the Depositor or any of its affiliates is a party
or by which the Depositor or any of its affiliates or any of their
respective properties is bound.
(xix) The Notes and the Transaction Documents conform in all
material respects to the descriptions thereof contained in the
Prospectus.
(xx) As of the Closing Date, each of the Depositor's, BFFC's and
BMW Financial Services' representations and warranties in the
Transaction Documents, will be true and correct and such
representations and warranties are incorporated herein by reference.
(xxi) Other than as contemplated by this Agreement or as
disclosed in the Prospectus, there is no broker, finder or other party
that is entitled to receive from the Depositor or any of its
affiliates or the Underwriters, any brokerage or finder's fee or other
fee or commission as a result of any of the transactions contemplated
by this Agreement.
(xxii) Neither the Depositor nor any of its affiliates has
entered into, nor will it enter into, any contractual arrangement with
respect to the distribution of the Notes except for this Agreement.
(xxiii) BFFC's sale and assignment of a portion of the
Receivables to BMW Financial Services pursuant to the Bill of Sale
will vest in BMW Financial Services all of BFFC's right, title and
interest to the Receivables.
(xxiv) BMW Financial Services' sale and assignment of the
Receivables to the Depositor pursuant to the Receivables Purchase
Agreement will vest in the Depositor all of BMW Financial Services'
right, title and interest to the Receivables.
(xxv) The Depositor's sale and assignment of the Receivables to
the Trust pursuant to the Sale and Servicing Agreement will vest in
the Trust all of the Depositor's right, title and interest to the
Receivables, including all of the Depositor's rights under the
Receivables Purchase Agreement.
(xxvi) The Trust's assignment of the Collateral to the Indenture
Trustee pursuant to the Indenture will vest in the Indenture Trustee,
for the benefit of the Noteholders, a first priority perfected
security interest therein, subject to no other outstanding Lien.
(xxvii) The Notes, when duly and validly executed by the
Indenture Trustee, authenticated and delivered in accordance with the
Indenture, and delivered and paid for pursuant hereto will be validly
issued and outstanding and will constitute legal, valid and binding
obligations of the Trust, entitled to the benefits of the Indenture
and enforceable in accordance with their terms.
(xxviii) The Certificates, when duly and validly executed by the
Owner Trustee, authenticated and delivered in accordance with the
Trust Agreement, will be validly issued and outstanding and entitled
to the benefits of the Trust Agreement.
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(xxix) Any taxes, fees and other governmental charges due on or
prior to the Closing Date (including, without limitation, sales taxes)
in connection with the execution, delivery and issuance of this
Agreement, the Transaction Documents and the Notes have been or will
have been paid at or prior to the Closing Date. (xxx) The Receivables
are "tangible chattel paper" or "promissory notes" as defined in the
Uniform Commercial Code as in effect in the State of New York, the
State of Delaware and the State of Ohio.
(xxxi) Under generally accepted accounting principles, BFFC will
report its transfer of the Receivables as a sale, BMW Financial
Services will report its transfer of the Receivables as a sale, and
the Depositor will report its transfer of the Receivables to the Trust
as a sale of the Receivables.
(xxxii) Immediately prior to the transfer thereof to BMW
Financial Services pursuant to the Bill of Sale, BFFC is the sole
owner of all right, title and interest in, and has good and marketable
title to the Receivables and the other property to be transferred to
BMW Financial Services. BFFC, pursuant to the Bill of Sale, is
transferring to BMW Financial Services ownership of the Receivables,
the security interest in the Vehicles securing the Receivables and the
proceeds of each of the foregoing, and, immediately prior to the
transfer thereof to the Depositor, BMW Financial Services will be the
sole owner of all right, title and interest in, and will have good and
marketable title to, the Receivables and the other property to be
transferred by it to the Depositor. BMW Financial Services, pursuant
to the Receivables Purchase Agreement, is transferring to the
Depositor ownership of the Receivables, the security interest in the
Vehicles securing the Receivables and the proceeds of each of the
foregoing, and, immediately prior to the transfer thereof to the
Trust, the Depositor will be the sole owner of all right, title and
interest in, and will have good and marketable title to, the
Receivables and the other property to be transferred by it to the
Trust. The assignment of the Receivables, all documents and
instruments relating thereto and all proceeds thereof to the Trust,
pursuant to the Bill of Sale, the Receivables Purchase Agreement and
the Sale and Servicing Agreement, vests in the Trust all interests
which are purported to be conveyed thereby, free and clear of any
liens, security interests or encumbrances (other than those permitted
by the Transaction Documents).
(xxxiii) Immediately prior to the sale of the Receivables from
BFFC to BMW Financial Services, BFFC will file UCC-3 termination
statements (the "BFFC Financing Statements"), in the offices specified
in Schedule III and there shall be no unreleased statements affecting
the Receivables filed in such offices or in the offices of the
Secretary of State of the State of New Jersey (the "New Jersey
Secretary of State") and the Secretary of State of the State of
Delaware (the "Delaware Secretary of State" and, together with the New
Jersey Secretary of State, the "Transition Filing Offices"). No other
filing or other action is necessary to perfect and maintain the
interest of BMW Financial Services in the Receivables and the proceeds
thereof against third parties.
(xxxiv) Immediately prior to the transfer of the Receivables to
the Depositor, the Depositor's interest in the Receivables and the
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proceeds thereof shall be perfected upon the filing of UCC-1 financing
statements (the "BMW Financial Services Financing Statements") in the
offices specified in Schedule III and there shall be no unreleased
statements affecting the Receivables filed in such offices or in the
Transition Filing Offices other than the BMW Financial Services
Financing Statements. If a court concludes that the transfer of the
Receivables from BMW Financial Services to the Depositor is a sale,
the interest of the Depositor in the Receivables and the proceeds
thereof will be perfected upon the filing of the BMW Financial
Services Financing Statements in the offices set forth in Schedule
III. If a court concludes that such transfer is not a sale, the
Receivables Purchase Agreement and the transactions contemplated
thereby constitute a grant by BMW Financial Services to the Depositor
of a valid security interest in the Receivables and the proceeds
thereof, which security interest will be perfected upon the filing of
the BMW Financial Services Financing Statements in the offices
specified in Schedule III. No other filing or other action is
necessary to perfect and maintain the interest or the security
interest of the Depositor in the Receivables and the proceeds thereof
against third parties.
(xxxv) Immediately prior to the transfer of the Receivables to
the Trust, the Trust's interest in the Receivables and the proceeds
thereof shall be perfected upon the filing of UCC-1 financing
statements (the "Depositor Financing Statements") in the offices
specified in Schedule III and there shall be no unreleased statements
affecting the Receivables filed in such offices other than the
Depositor Financing Statements. If a court concludes that the transfer
of the Receivables from Depositor to the Trust is a sale, the interest
of the Trust in the Receivables and the proceeds thereof will be
perfected upon the filing of the Depositor Financing Statements in the
offices set forth in Schedule III hereto. If a court concludes that
such transfer is not a sale, the Sale and Servicing Agreement and the
transactions contemplated thereby constitute a grant by Depositor to
the Trust of a valid security interest in the Receivables and the
proceeds thereof, which security interest will be perfected upon the
filing of the Depositor Financing Statements in the offices specified
in Schedule III. No other filing or other action is necessary to
perfect and maintain the interest or the security interest of the
Trust in the Receivables and the proceeds thereof against third
parties.
(xxxvi) Immediately prior to the pledge of the Receivables to the
Indenture Trustee, the Indenture Trustee's interest in the Receivables
and the proceeds thereof shall be perfected upon the filing of UCC-1
financing statements (the "Trust Financing Statements") in the offices
specified in Schedule III. No other filing or other action is
necessary to perfect and maintain the interest or the security
interest of the Indenture Trustee in the Receivables and the proceeds
thereof against third parties.
(b) The above representations and warranties shall be deemed to be
repeated at the Closing Date.
Section 3. Purchase, Sale and Delivery of Notes.
(a) On the basis of the representations, warranties and agreements
herein contained, but subject to the terms and conditions herein set forth,
the Depositor agrees to cause the Trust to sell to each Underwriter, and
each Underwriter agrees, severally and not jointly, to purchase from the
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Trust the respective principal amount of the Notes set forth opposite the
name of such Underwriter on Schedule I, at a purchase price (the "Purchase
Price") equal to "Price $" as specified on Schedule II hereto, plus accrued
interest from April 29, 2003. Delivery of and payment for the Notes shall
be made at the offices of Weil, Gotshal & ▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, at 10:00 a.m. (New York City time) on April 29, 2003
(or at such other place and time on the same or other date as shall be
agreed to in writing by the Representative and the Depositor, the "Closing
Date"). Delivery of one or more global notes representing the Notes shall
be made against payment of the aggregate purchase price in immediately
available funds drawn to the order of the Depositor. The global notes to be
so delivered shall be registered in the name of Cede & Co., as nominee of
The Depository Trust Company ("DTC"). The interests of beneficial owners of
the Notes will be represented by book entries on the records of DTC and
participating members thereof. Definitive Notes representing the Notes will
be available only under those limited circumstances set forth in the
Indenture.
(b) The Depositor hereby acknowledges that the payment of monies
pursuant to Section 3(a) hereof (a "Payment") by or on behalf of the
Underwriters of the aggregate Purchase Price for the Notes does not
constitute closing of a purchase and sale of the Notes. Only execution and
delivery, by facsimile or otherwise, of a receipt for Notes by the
Representative indicates completion of the closing of a purchase of the
Notes from the Depositor. Furthermore, in the event that the Underwriters
make a Payment to the Depositor prior to the completion of the closing of a
purchase of Notes, the Depositor hereby acknowledges that until the
Representative executes and delivers such receipt for the Notes the
Depositor will not be entitled to the Payment and shall return the Payment
to the Underwriters as soon as practicable (by wire transfer of same-day
funds) upon demand. In the event that the closing of a purchase of Notes is
not completed and the Payment is not returned by the Depositor to the
Underwriters on the same day the Payment was received by the Depositor, the
Depositor agrees to pay to the Underwriters in respect of each day the
Payment is not returned by it, in same-day funds, interest on the amount of
such Payment in an amount representing the Underwriters' cost of financing
as reasonably determined by the Representative.
(c) It is understood that Citigroup Global Markets Inc., individually,
may (but shall not be obligated to) make Payment on behalf of any
Underwriter or Underwriters for any of the Notes to be purchased by such
Underwriter or Underwriters. No such Payment shall relieve such Underwriter
or Underwriters from any of its or their obligations hereunder.
Section 4. Offering by Underwriters. It is understood that the
Underwriters propose to offer the Notes for sale to the public (which may
include selected dealers) on the terms set forth in the Prospectus. It is
further understood that the Underwriters shall not deliver any Computational
Materials (as defined herein) to any potential investors unless such
Computational Materials have been approved in writing by the Depositor.
Section 5. Covenants of the Depositor and BMW Financial Services. The
Depositor and BMW Financial Services, as applicable, each covenant and agree
with the Underwriters as set forth below. For purposes of this Section, the
Depositor and BMW Financial Services shall jointly make each of the covenants
set forth below in clauses (a), (b), (c), (e), (g), (h), (i), (k), (l) and (m)
and the entity specified in the covenant below shall make the covenants set
forth in all of the other clauses below.
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(a) The Depositor will furnish to the Underwriters and counsel to the
Underwriters, without charge, as many copies of the preliminary prospectus,
if any, the Computational Materials, if any, the Prospectus, the
Registration Statement and all amendments and supplements to such
documents, in each case as soon as available and in such quantities as the
Underwriters reasonably request.
(b) The Depositor will file the Prospectus, properly completed, with
the Commission pursuant to and in accordance with subparagraph (2) (or, if
applicable and if consented to by the Representative, subparagraph (5)) of
Rule 424(b) no later than the second business day following the date it is
first used. The Depositor and BMW Financial Services will advise the
Representative promptly of any such filing pursuant to Rule 424(b). The
Depositor shall file with the Commission a current report on Form 8-K (the
"Current Report") including any "computational materials," "structural
terms sheets" or "collateral term sheets" (together, the "Computational
Materials"), if any, (i) no later than the date that the Prospectus
Supplement is filed with respect to "computational materials" and
"structural terms sheets" (as such terms are interpreted in the No-Action
letters addressed to ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Acceptance Corporation I, et al. and
the Public Securities Association dated May 20, 1994 and February 17, 1995,
respectively (collectively, the "PSA Letters")) or (ii) no later than two
days following their date of first use with respect to "collateral term
sheets" (as such term is interpreted in the PSA Letters).
(c) During the time that the Underwriters are required to deliver a
prospectus to investors, the Depositor and BMW Financial Services will
advise the Representative promptly of any proposal to amend or supplement
the Registration Statement or the Prospectus and will not effect or file
any such amendment or supplement without the consent of the Representative,
which consent shall not be unreasonably withheld. The Depositor and BMW
Financial Services will advise the Representative promptly of any amendment
or supplement of the Registration Statement or the Prospectus and of the
institution by the Commission of any stop order proceedings in respect of
the Registration Statement. Each of the Depositor and BMW Financial
Services will use its best efforts to prevent the issuance of any such stop
order and to obtain as soon as possible its lifting, if issued. The
Depositor and BMW Financial Services will comply with the Act, the Exchange
Act, the Trust Indenture Act and the rules and regulations contemplated
thereunder so as to permit the completion of the distribution of the Notes
as contemplated in this Agreement and in the Prospectus. The Depositor will
file with the Commission all documents required to be filed pursuant to the
Exchange Act within the time periods specified in the Exchange Act or the
rules and regulations promulgated thereunder.
(d) The Depositor will arrange for the qualification of the Notes for
offering and sale in each jurisdiction as the Representative shall
designate including, but not limited to, pursuant to applicable state
securities Blue Sky laws of certain states of the United States of America
or other U.S. jurisdictions so designated, and the Depositor shall maintain
such qualifications in effect for so long as may be necessary in order to
complete the placement of the Notes; provided, however, that the Depositor
shall not be obligated to file any general consent to service of process or
to qualify as a foreign limited liability company or as a securities dealer
in any jurisdiction or to subject itself to taxation in respect of doing
business in any jurisdiction in which it is not otherwise so subject. The
Depositor will promptly advise the Representative of the receipt by the
Depositor of any notification with respect to the suspension of the
10
qualification of the Notes for sale in any jurisdiction or the initiation
or threatening of any proceeding for such purpose.
(e) If, at any time when a prospectus relating to the Notes is
required to be delivered by an Underwriter or dealer either (i) any event
occurs as a result of which the Prospectus as then amended or supplemented
would include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading, or
(ii) for any other reason it shall be necessary to amend or supplement the
Prospectus to comply with the Act, the Depositor and BMW Financial Services
promptly will notify the Representative of such event and promptly will
prepare, at their own expense, an amendment or supplement which will
correct such statement or omission. Neither the Underwriters' consent to,
nor the Underwriters' distribution of, any amendment or supplement to the
Prospectus shall constitute a waiver of any of the conditions set forth in
Section 7 hereof.
(f) The Depositor will cooperate with the Representative and use its
best efforts to permit the Notes to be eligible for clearance and
settlement through DTC.
(g) BMW Financial Services and the Depositor shall (i) furnish or make
available to the Underwriters or their counsel such additional documents
and information regarding BMW Financial Services, the Depositor and their
respective affairs as the Underwriters may from time to time reasonably
request prior to the Closing Date, including any and all documentation
reasonably requested in connection with its due diligence efforts regarding
information in the Prospectus and in order to evidence the accuracy or
completeness of any of the conditions contained in this Agreement and (ii)
provide the Underwriters or their advisors, or both, prior to acceptance of
its subscription, the opportunity to ask questions of, and receive answers
with respect to such matters.
(h) Until the retirement of the Notes, or until none of the
Underwriters maintains a secondary market in the Notes, whichever occurs
first, the Depositor shall deliver to each of the Underwriters, through the
Representative, the annual statement of compliance and any annual
independent certified public accountants' report furnished to the Indenture
Trustee pursuant to the Sale and Servicing Agreement, as soon as such
statements and reports are furnished to the Indenture Trustee.
(i) So long as any of the Notes are outstanding, the Depositor shall
deliver to each of the Underwriters, through the Representative: (i) all
documents distributed to Noteholders and (ii) from time to time, any other
information concerning BMW Financial Services, the Depositor or the Trust
as the Underwriters may reasonably request only insofar as such information
reasonably relates to the Prospectus or the transactions contemplated by
the Transaction Documents.
(j) On or before the Closing Date, the Depositor, BFFC and BMW
Financial Services shall cause their computer records relating to the
Receivables to be marked to show the Trust's absolute ownership of the
Receivables, and from and after the Closing Date none of the Depositor,
BFFC or BMW Financial Services shall take any action inconsistent with the
11
Trust's ownership of such Receivables, other than as permitted by the
Indenture or Sale and Servicing Agreement.
(k) To the extent, if any, that any of the ratings assigned to the
Notes by any of the rating agencies that initially rate the Notes are
conditional upon the furnishing of documents or the taking of any other
actions by the Depositor or BMW Financial Services, as the case may be, the
relevant party shall furnish, or cause to be furnished, such documents and
take any such other actions as promptly as possible.
(l) As soon as practicable, but no later than 16 months after the date
hereof, the Depositor and BMW Financial Services will cause the Trust to
make generally available to the Noteholders an earnings statement covering
a period of at least 12 consecutive months beginning after the later of (i)
the effective date of the Registration Statement relating to the Notes and
(ii) the effective date of the most recent post-effective amendment to the
Registration Statement to become effective prior to the date of this
Agreement and, in each case, satisfying the provisions of Section 11(a) of
the Act (including Rule 158 promulgated thereunder).
(m) From the date hereof until the Closing Date, none of the
Depositor, BMW Financial Services nor any of their respective affiliates
will, without the prior written consent of the Representative, directly or
indirectly, offer, sell or contract to sell or announce the offering of, in
a public or private transaction, any other collateralized securities
similar to the Notes.
Section 6. Payment of Expenses. The Depositor will pay all expenses
(including legal fees and disbursements) incident to the transactions
contemplated by this Agreement, whether or not the transactions contemplated
herein are consummated or this Agreement is terminated pursuant to Section 8
hereof, including: (a) the preparation, printing and distribution of each
preliminary prospectus, if any, all Computational Materials, if any, and the
Prospectus and each amendment or supplement thereto and delivery of copies
thereof to the Underwriters, (b) the preparation of this Agreement, (c) the
preparation, issuance and delivery of the Notes to the Underwriters (or any
appointed clearing organizations), (d) the fees and disbursements of BMW
Financial Services' and the Depositor's counsel and accountants, (e) the
qualification of the Notes under state securities laws in accordance with
Section 5(d) hereof, including filing fees and the fees and disbursements of
counsel in connection therewith and in connection with the preparation of any
blue sky survey (including the printing and delivery thereof to the
Underwriters), (f) any fees charged by rating agencies for the rating (or
consideration of the rating) of the Notes, (g) the fees and expenses incurred
with respect to any filing with, and review by, DTC or any similar
organizations, (h) the fees and disbursements of the Indenture Trustee and its
counsel, if any, (i) the fees and disbursements of the Owner Trustee and its
counsel, if any, and (j) the fees and expenses of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇,
P.A..
Section 7. Conditions of the Obligations of the Underwriters. The
obligations of the Underwriters to purchase and pay for the Notes will be
subject to the accuracy of the representations and warranties made herein, to
the accuracy of the statements of officers of the Depositor, BFFC and BMW
Financial Services made pursuant hereto, to the performance by the Depositor and
BMW Financial Services of their obligations hereunder and to the following
additional conditions precedent:
12
(a) On the Closing Date, each of the Transaction Documents, the Notes
and the Certificates shall have been duly authorized, executed and
delivered by the parties thereto, shall be in full force and effect and no
default shall exist thereunder, and the Owner Trustee and the Indenture
Trustee shall have received a fully executed copy thereof or, with respect
to the Notes and Certificates, a conformed copy thereof. The Transaction
Documents, the Notes and the Certificates shall be substantially in the
forms heretofore provided to the Representative.
(b) Both at or before the date hereof, and on or before the Closing
Date, you shall have received letters, dated as of the date hereof and as
of the Closing Date, respectively, of KPMG Peat Marwick LLP, independent
certified public accountants, substantially in the form of the drafts to
which you have agreed previously and otherwise substantially in form and
substance reasonably satisfactory to you and counsel to the Underwriters.
(c) The Prospectus and the Computational Materials, if any, shall have
been filed with the Commission in accordance with the Rules and Regulations
and Section 5(b) hereof on or prior to the Closing Date, no stop order
suspending the effectiveness of the Registration Statement shall have been
issued and no proceedings for that purpose shall have been instituted or,
to the knowledge of the Depositor or BMW Financial Services shall be
contemplated by the Commission.
(d) The Representative shall have received an opinion of in-house
counsel to the Depositor, BFFC and BMW Financial Services, addressed to the
Representative, dated the Closing Date and satisfactory in form and
substance to the Representative and counsel to the Underwriters, to the
effect that:
(i) Each of BMW Financial Services, BFFC and the Depositor has
been duly formed and is validly existing as a limited liability
company or corporation in good standing under the laws of the
jurisdiction of its formation, and has the power and authority to own
its properties and to conduct its business as presently conducted, and
to enter into and perform its obligations under this Agreement and the
Transaction Documents, and had at all relevant times, and now has, the
power and authority to acquire, own, sell and service the Receivables
and the related Collateral.
(ii) Each of this Agreement and each Transaction Document has
been duly authorized, executed and delivered by the Depositor, BFFC
and BMW Financial Services, as applicable.
(iii) Each of the Depositor, BFFC and BMW Financial Services is
duly qualified to do business and is in good standing, and has
obtained all necessary licenses, in each jurisdiction in which failure
to so qualify or obtain such licenses would (A) render any Receivable
unenforceable by the Depositor or the Indenture Trustee on behalf of
any Noteholder or (B) have a material adverse affect upon its business
or the ownership of its property.
13
(iv) Neither: (A) the transfer of the Receivables from BFFC to
BMW Financial Services pursuant to the Bill of Sale, (B) the transfer
of the Receivables from BMW Financial Services to the Depositor
pursuant to the Receivables Purchase Agreement, (C) the transfer of
the Receivables from the Depositor to the Trust pursuant to the Sale
and Servicing Agreement, (D) the assignment of the Collateral from
BFFC to BMW Financial Services, from BMW Financial Services to the
Depositor and thereafter to the Trust, (E) the assignment of its
rights under the Receivables Purchase Agreement by the Depositor to
the Trust, (F) the grant of the security interest in the Receivables
and the Collateral by the Trust to the Indenture Trustee pursuant to
the Indenture, (G) the execution and delivery of this Agreement and
the Transaction Documents by BMW Financial Services, (H) the execution
and delivery of this Agreement, the Transaction Documents and the
Notes by the Depositor, (I) the execution and delivery of the Bill of
Sale by BFFC, (J) the consummation of any transactions contemplated in
this Agreement or the Transaction Documents, nor (K) the fulfillment
of the terms of this Agreement, the Transaction Documents or the Notes
by BMW Financial Services, BFFC or the Depositor, as the case may be,
will conflict with, or result in a breach, violation or acceleration
of, or constitute a default under, any term or provision of the
certificate of formation and limited liability company agreement of
BMW Financial Services or the Depositor or articles of incorporation
or by-laws of BFFC or of any indenture or other material agreement or
instrument to which either of them is a party or by which any of them
or their respective properties is bound, or result in a violation, or
contravene the terms, of any statute, order or regulation applicable
to either of them of any court, regulatory body, administrative agency
or governmental body having jurisdiction over such person.
(v) There are no actions, proceedings or suits pending or, to the
best of such counsel's knowledge after due inquiry, threatened before
any court, administrative agency or other tribunal: (A) that might
materially and adversely affect the performance by the Depositor of
its obligations under this Agreement or the Transaction Documents, (B)
that might materially and adversely affect the performance by BMW
Financial Services of its obligations under this Agreement or the
Transaction Documents or (C) that might materially and adversely
affect the performance by BFFC of its obligations under the
Transaction Documents.
(vi) Such counsel is familiar with BMW Financial Services'
standard operating procedures relating to its acquisition of a
perfected first priority security interest in the vehicles financed by
it pursuant to retail installment sale contracts in the ordinary
course of its business. Assuming that its standard procedures are
followed with respect to the perfection of security interests in the
Vehicles (and such counsel has no reason to believe that BMW Financial
Services has not followed its standard procedures in all material
respects in connection with the perfection of security interests in
the Vehicles), BMW Financial Services has acquired or will acquire a
perfected first priority security interest in the Vehicles. Neither
such security interest nor the perfection of such security interest
14
shall be adversely affected by the transfer of the Receivables to the
Depositor, the Trust or the pledge thereof to the Indenture Trustee.
(vii) To such counsel's knowledge, no consent, approval,
authorization or order of any court or governmental agency or body is
required for the consummation of the transactions contemplated in this
Agreement and the Transaction Documents.
(e) The Representative shall have received an opinion of ▇▇▇▇, Gotshal
& ▇▇▇▇▇▇ LLP, counsel to the Depositor, BFFC, BMW Financial Services and
the Trust, addressed to the Representative, dated the Closing Date and
satisfactory in form and substance to the Representative and counsel to the
Underwriters, to the effect that:
(i) Each of this Agreement and the Transaction Documents is the
legal, valid and binding obligation of BMW Financial Services, BFFC
and the Depositor, as the case may be, enforceable against them in
accordance with its terms: (A) subject to applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium or other
similar laws affecting creditors' rights and remedies generally, and
(B) subject, as to enforceability, to general principles of equity,
including principles of commercial reasonableness, good faith and fair
dealing (regardless of whether enforcement is sought in a proceeding
at law or in equity).
(ii) The Notes, when duly executed and delivered by the Owner
Trustee on behalf of the Trust, authenticated by the Indenture Trustee
and delivered and paid for pursuant to this Agreement, will be
entitled to the benefits of the Indenture and will be valid and
binding obligations of the Trust, enforceable in accordance with their
terms, subject to: (A) applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or other similar laws affecting
creditors' rights and remedies generally, and (B) to general
principles of equity, including principles of commercial
reasonableness, good faith and fair dealing (regardless of whether
enforcement is sought in a proceeding at law or in equity).
(iii) The statements contained in the Prospectus and the
Prospectus Supplement and any supplement thereto under the captions
"Summary of Terms", "The Notes" and "Payments on the Notes," insofar
as such statements constitute a summary of the Notes and the
Transaction Documents, constitute a fair summary of such documents and
the statements in the Prospectus under the caption "Certain Legal
Aspects of the Receivables", to the extent they constitute statements
of matters of law or legal conclusions, are correct in all material
respects.
(iv) Neither the Trust nor the Depositor is, or as a result of
the offering and sale of the Notes will be, required to be registered
under the Investment Company Act.
15
(v) The Indenture has been duly qualified under the Trust
Indenture Act.
(vi) The Trust Agreement need not be qualified under the Trust
Indenture Act.
(vii) The Receivables Purchase Agreement constitutes a grant by
BMW Financial Services to the Depositor of a valid security interest
in the Receivables and other property granted to the Depositor
pursuant thereto and the proceeds of the foregoing.
(viii) The Sale and Servicing Agreement constitutes a grant by
the Depositor to the Trust of a valid security interest in the
Receivables and other property granted to the Trust pursuant thereto
and the proceeds of the foregoing.
(ix) The Indenture constitutes a grant by the Trust to the
Indenture Trustee of a valid security interest in the Trust Estate and
in the Collateral, as such term is defined in the Indenture (including
the property held in the Reserve Account) and the proceeds of each of
the foregoing, which security interest in the Money, Instruments,
Clearing Corporation Securities, Certificated Securities (as such
terms are defined in the UCC as in effect in the State of New York)
and federal book-entry securities on deposit in the Reserve Account
constitutes a perfected first priority security interest therein.
(x) The Registration Statement became effective under the Act on
April 17, 2003 and, to the best of such counsel's knowledge, no stop
order suspending the effectiveness of the Registration Statement or
any part thereof or any amendment thereto has been issued under the
Act and no proceeding for that purpose has been instituted or
threatened by the Commission.
(xi) The Registration Statement relating to the Notes as of its
effective date and the Prospectus as of the date of this Agreement,
and any amendment or supplement thereto, as of its date, complied as
to form in all material respects with the requirements of the Act and
the applicable Rules and Regulations. Such counsel need express no
opinion with respect to the financial statements, the exhibits,
annexes and other financial, statistical, accounting, numerical or
portfolio data, economic conditions or financial condition of the
portfolio information included in or incorporated by reference into
the Registration Statement relating to the Notes, the Prospectus and
the Trustee's statement of eligibility on Form T-1, or any amendment
or supplement thereto.
(xii) Such counsel shall state that they have participated in the
preparation of the Registration Statement and the Prospectus, and that
no facts have come to their attention which cause them to believe that
the Registration Statement relating to the Notes as of its effective
date, and the Prospectus, as of its date, and any amendment or
supplement thereto, as of its date when it became effective, contained
any untrue statement of a material fact or omitted to state a material
16
fact required to be stated therein or necessary to make the statements
therein not misleading or that the Prospectus on its date contained or
on the Closing Date contains, any untrue statement of a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided
that such counsel need not express any view with respect to the
financial, statistical accounting or computational material included
in or incorporated by reference into the Registration Statement
relating to the Notes, the Prospectus or any amendment or supplement
thereto or any Underwriters' Information.
(xiii) Assuming due authorization, the Indenture, when duly
authorized, executed and delivered by the Trust and the Indenture
Trustee, will constitute a valid and binding obligation of the Trust,
enforceable against the Trust in accordance with its terms, subject to
applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws affecting creditors'
rights and remedies generally, and subject, as to enforceability, to
general principles of equity, including principles of commercial
reasonableness, good faith and fair dealing (regardless of whether
enforcement is sought in a proceeding at law or in equity) and certain
remedial provisions of the Indenture are or may be unenforceable in
whole or in part under the laws of the State of New York, but the
inclusion of such provisions does not affect the validity of the
Indenture, and the Indenture contains adequate provisions for the
practical realization of the rights and benefits afforded thereby.
Such opinion may contain such assumptions, qualifications and
limitations as are customary in opinions of this type and are
reasonably acceptable to counsel to the Underwriters. In rendering
such opinion, such counsel may state that they express no opinion as
to the laws of any jurisdiction other than the federal law of the
United States and the laws of the State of New York.
(f) ▇▇▇▇▇▇▇▇ ▇▇▇▇ LLP, in its capacity as counsel to BMW Financial
Services, the Depositor and the Trust, shall have delivered an opinion
addressed to the Representative, dated the Closing Date and satisfactory in
form and substance to the Representative and counsel to the Underwriters,
to the effect that so long as BMW Financial Services has and continuously
retains possession in the State of Ohio of all promissory notes and
tangible chattel paper comprised in the Receivables:
(i) The Receivables are "tangible chattel paper" or "promissory
notes" as defined in the UCC as in effect in the State of New York and
the State of Ohio.
(ii) At and after the time of the transfer thereof from the Trust
to the Indenture Trustee, the security interest of the Indenture
Trustee in such promissory notes and tangible chattel paper arising
under the Indenture will constitute a perfected security interest in
such promissory notes and tangible chattel paper, subject to no prior
or equal liens which may be perfected by the filing of a financing
statement or by taking possession of such promissory notes and/or
chattel paper.
17
(g) ▇▇▇▇, Gotshal & ▇▇▇▇▇▇ LLP, in its capacity as federal tax and
ERISA counsel to the Depositor and the Trust, shall have delivered an
opinion satisfactory in form and substance to the Representative and
counsel to the Underwriters, dated the Closing Date and addressed to the
Representative, to the effect that the statements in the Prospectus
Supplement under the headings "Summary of Terms - Tax Status" and "Material
Income Tax Consequences" and in the Base Prospectus under the headings
"Summary of Terms - Tax Status" and "Material Income Tax Consequences" to
the extent they constitute matters of law or legal conclusions are correct
in all material respects, and the statements in the Prospectus Supplement
under the headings "Summary of Terms - ERISA Considerations" and "ERISA
Considerations" and in the Base Prospectus under the headings "Summary of
Terms - ERISA Considerations" and "ERISA Considerations" have been prepared
or reviewed by such counsel and, to the extent they constitute matters of
law or legal conclusions, provide a fair summary all material respects with
respect to such conclusions.
(h) ▇▇▇▇, Gotshal & ▇▇▇▇▇▇ LLP, in its capacity as counsel to the
Depositor and the Trust, shall have delivered an opinion satisfactory in
form and substance to the Representative and counsel to the Underwriters,
dated the Closing Date and addressed to the Representative, with respect to
(i) the consolidation of the assets and liabilities of the Depositor with
those of BMW Financial Services under the doctrine of substantive
consolidation, (ii) the characterization as a "true sale" of the sale of
the Receivables from BMW Financial Services to the Depositor and (iii) the
validity of the Notes and such other related matters as the Underwriter
shall reasonably require and the Depositor shall have furnished or caused
to be furnished to such counsel such documents as they may reasonably
request for the purpose of enabling them to pass upon such matters. Such
opinions shall be limited to the laws of the State of New York and United
States federal law.
(i) The Representative shall have received an opinion of ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ & ▇▇▇▇, counsel to the Indenture Trustee, addressed to the
Representative, dated the Closing Date and satisfactory in form and
substance to the Representative and counsel to the Underwriters, to the
effect that:
(i) The Indenture Trustee is a banking corporation duly
incorporated and validly existing under the laws of the State of New
York.
(ii) The Indenture Trustee has the full corporate trust power to
accept the office of trustee under Indenture and to enter into and
perform its obligations under the Indenture.
(iii) The execution and delivery of the Indenture and the
performance by the Indenture Trustee of its obligations under the
Indenture have been duly authorized by all necessary action of the
Indenture Trustee.
(iv) The Indenture constitutes a valid and binding obligation of
the Indenture Trustee enforceable against it in accordance with its
terms under the laws of the State of New York and the federal laws of
the United States.
18
(v) The execution and delivery by the Indenture Trustee of the
Indenture does not require any consent, approval or authorization of,
or any registration or filing with, any New York or United States
federal governmental authority.
(vi) Each of the Notes has been duly executed by the Indenture
Trustee as trustee and authenticating agent.
(vii) With respect to the Indenture Trustee, the performance of
its obligations under the Transaction Documents to which it is a party
and the consummation of the transactions contemplated thereby will not
result in any breach or violation of any United States federal or
State of New York statute or regulation or, to the knowledge of such
counsel, any order of any United States federal or State of New York
court, agency or other governmental body.
(viii) To the knowledge of such counsel, with respect to the
Indenture Trustee, there is no legal action, suit, proceeding or
investigation before any United States federal or State of New York
court, agency or other governmental body pending or threatened against
it which, either in one instance or in the aggregate, draws into
question the validity of any of the Transaction Documents to which it
is a party, seeks to prevent the consummation of any of the
transactions contemplated by any such Transaction Documents or would
impair materially its ability to perform its obligations under any
such Transaction Documents.
(j) The Representative shall have received an opinion of ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.A., counsel to the Owner Trustee, addressed to the
Representative, dated the Closing Date and satisfactory in form and
substance to the Representative and counsel to the Underwriters, to the
effect that:
(i) The Owner Trustee is duly formed and validly existing under
the laws of the State of Delaware with trust powers and with its
principal place of business in the State of Delaware.
(ii) The Owner Trustee has the full corporate trust power to
accept the office of trustee under the Trust Agreement and the Sale
and Servicing Agreement and to enter into and perform its obligations
under the Trust Agreement and the Sale and Servicing Agreement.
(iii) The execution and delivery of the Trust Agreement and the
Sale and Servicing Agreement and the performance by the Owner Trustee
of its obligations under the Trust Agreement and the Sale and
Servicing Agreement have been duly authorized by all necessary action
of the Owner Trustee.
(iv) The execution and delivery by the Owner Trustee of the Trust
Agreement and the Sale and Servicing Agreement does not require any
consent, approval or authorization of, or any registration or filing
with, any New York, Delaware or United States Federal governmental
authority.
19
(v) The Owner Trustee has duly authorized, executed and delivered
the Trust Agreement and the Sale and Servicing Agreement and on behalf
of the Trust, the Owner Trustee has duly executed and delivered the
Transaction Documents to which the Trust is a party.
(vi) Each of the Notes and the Certificates have been duly
executed and delivered by the Owner Trustee, on behalf of the Trust.
(k) The Representative shall have received an opinion of ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel to the Trust, addressed to
the Representative, dated the Closing Date and satisfactory in form and
substance to the Representative and counsel to the Underwriters, to the
effect that:
(i) The Trust Agreement constitutes the valid and binding
obligation of the Owner Trustee and the Depositor enforceable against
the Owner Trustee and the Depositor in accordance with its terms
subject to (A) applicable bankruptcy, insolvency, moratorium,
receivership, reorganization, fraudulent conveyance and similar laws
relating to and affecting the rights and remedies of creditors
generally, and (B) principles of equity (regardless of whether
considered and applied in a proceeding in equity or at law).
(ii) The Trust has been duly formed and is validly existing as a
business trust under the Delaware Statutory Trust Act (the "Statutory
Trust Act") and has the power and authority under the Trust Agreement
and the Statutory Trust Act to execute, deliver and perform its
obligations under the Transaction Documents to which the Trust is a
party.
(iii) The Transaction Documents have been duly authorized,
executed and delivered by the Trust.
(iv) Assuming that the Certificates have been duly authorized,
executed and issued by the Trust, the Certificates have been validly
issued and are entitled to the benefits of the Trust Agreement.
(v) The Receivables are "tangible chattel paper" or "promissory
notes" as defined in the UCC as in effect in the State of Delaware.
(vi) Each of the BFFC Financing Statements, BMW Financial
Services Financing Statements, Depositor Financing Statements and
Trust Financing Statements are in appropriate form for filing in the
State of Delaware.
(vii) To the extent that Article 9 of the UCC as in effect in the
State of Delaware (the "Delaware UCC") is applicable (without regard
to conflicts of laws principles), upon filing the BFFC Financing
Statements with the Delaware Secretary of State (Uniform Commercial
Code Section)(the "Division"), BMW Financial Services will have a
perfected security interest in BFFC's rights in the Receivables (as
defined in the Bill of Sale) described in the BFFC Financing
Statements that may be perfected by the filing of a UCC financing
20
statement with the Division and the proceeds (as defined in Section
9-102(a)(64) of the Delaware UCC) thereof.
(viii) To the extent that Article 9 of the Delaware UCC is
applicable (without regard to conflicts of laws principles), upon the
filing of the BMW Financial Services Financing Statements with the
Division, the Depositor will have a perfected security interest in the
Depositor's rights in the Receivables (as defined in the Receivables
Purchase Agreement) described in the BMW Financial Services Financing
Statements that may be perfected by the filing of a UCC financing
statement with the Division and the proceeds (as defined in Section
9-102(a)(64) of the Delaware UCC) thereof.
(ix) To the extent that Article 9 of the Delaware UCC is
applicable (without regard to conflicts of laws principles), upon the
filing of the Depositor Financing Statements with the Division, the
Trust will have a perfected security interest in the Depositor's
rights in the Receivables (as defined in the Sale and Servicing
Agreement) described in the Depositor Financing Statements that may be
perfected by the filing of a UCC financing statement with the Division
and the proceeds (as defined in Section 9-102(a)(64) of the Delaware
UCC) thereof.
(x) To the extent that Article 9 of the Delaware UCC is
applicable (without regard to conflicts of laws principles), upon the
filing of the Trust Financing Statements with the Division, the
Indenture Trustee will have a perfected security interest in the
Trust's rights in the Receivables (as defined in the Indenture)
described in the Trust Financing Statements that may be perfected by
the filing of a UCC financing statement with the Division and the
proceeds (as defined in Section 9-102(a)(64) of the Delaware UCC)
thereof.
(xi) No re-filing or other action is necessary under the Delaware
UCC in order to maintain the perfection of such security interests
except for the filing of continuation statements at five year
intervals.
(xii) Under Section 3805(b) of the Statutory Trust Act, no
creditor of any Certificateholder shall have any right to obtain
possession of, or otherwise exercise legal or equitable remedies with
respect to, the property of the Trust except in accordance with the
terms of the Trust Agreement.
(xiii) Under Section 3805(c) of the Statutory Trust Act, the
Trust is a separate legal entity and assuming that the Sale and
Servicing Agreement conveys good title to the Receivables to the Trust
as a true sale and not as a security arrangement, the Trust rather
than the holder of the Certificates is the owner of the Receivables.
(xiv) Neither the execution, delivery and performance by the
Owner Trustee of the Trust Agreement and, on behalf of the Trust, the
Transaction Documents to which the Trust is a party, do not require
any consent, approval or authorization of, or any registration or
filing with, any governmental authority of the State of Delaware,
except for the filing of the Certificate of Trust with the Secretary
of State.
21
(xv) Neither the consummation by the Owner Trustee of the
transactions contemplated in the Trust Agreement or, on behalf of the
Trust, the transactions contemplated in the Transaction Documents to
which the Trust is a party nor the fulfillment of the terms thereof by
the Owner Trustee is in violation of the Trust Agreement or will
conflict with or result in a breach or violation of any law of the
State of Delaware.
(l) ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP, counsel to the Underwriters, shall
have furnished to the Representative such opinion or opinions, dated the
Closing Date, with respect to certain securities law issues and other
related matters as the Representative may reasonably request, and such
counsel shall have received such papers and information as they may
reasonably request to enable them to be based upon such matters.
(m) ▇▇▇▇▇▇ Cook, LLP, in its capacity as special counsel to BMW
Financial Services and the Depositor, shall have delivered an opinion
satisfactory in form and substance to the Representative and counsel to the
Underwriters, dated the Closing Date and addressed to the Representative,
to the effect that, (i) with respect to the security interest of BMW
Financial Services in the Vehicles created by a Receivable that originated
in the State of California (each, a "California Receivable"), no filing or
other action is necessary to perfect or continue the perfected status of
such security interest as against creditors of or transferees from the
Obligor under such California Receivable and (ii) as more fully described
under the caption "Consumer Protection Laws" in the Base Prospectus, in the
opinion of such counsel, each California Receivable is enforceable under
the laws of the State of California and all applicable federal laws. Such
opinion may contain such assumptions, qualifications and limitations as are
customary in opinions of this type and are reasonably acceptable to counsel
to the Underwriters.
(n) The Representative shall have received copies of each opinion of
counsel delivered to any rating agency, together with a letter addressed to
the Representative, dated the Closing Date, to the effect that the
Underwriters may rely on each such opinion to the same extent as though
such opinion was addressed to each as of its date.
(o) You shall have received certificates dated the Closing Date of any
two of the President, Chief Financial Officer, any Vice President, the
Controller or the Treasurer of the Depositor and BMW Financial Services in
which such officers shall state that: (i) the representations and
warranties made by such entity contained in the Transaction Documents and
this Agreement are true and correct, that such party has complied with all
agreements and satisfied all conditions on its part to be performed or
satisfied under such agreements on or before the Closing Date, (ii) since
the date of this Agreement there has not occurred any material adverse
change, or any development involving a prospective material adverse change,
in or affecting the condition, financial or otherwise, or in the earnings,
business or operations of the Trust, the Depositor or BMW Financial
Services except as disclosed to you in writing and (iii) no stop order
22
suspending the effectiveness of the Registration Statement has been issued
and no proceedings for that purpose have been instituted or are
contemplated by the Commission.
(p) You shall have received evidence satisfactory to you that, on or
before the Closing Date, UCC-1 financing statements, or in the case of the
sale from BFFC to BMW Financial Services UCC-3 financing statements, have
been or are being filed in all applicable governmental offices reflecting
(i) the transfer of the interest of BFFC in the Receivables and the
proceeds thereof to BMW Financial Services pursuant to the Bill of Sale,
(ii) the transfer of the interest of BMW Financial Services in the Bill of
Sale and the Receivables, and the proceeds thereof to the Depositor
pursuant to the Receivables Purchase Agreement, (iii) the transfer of the
interest of the Depositor in the Bill of Sale and the Receivables Purchase
Agreement, the Receivables, and the proceeds thereof to the Trust pursuant
to the Sale and Servicing Agreement, and (iv) the grant by the Trust to the
Indenture Trustee under the Indenture of a security interest in the
interest of the Trust in the Bill of Sale, the Receivables Purchase
Agreement, the Receivables, the Collateral and the proceeds thereof.
(q) The Class A-1 Notes shall have been rated "Prime-1" and "A-1+" by
▇▇▇▇▇'▇ Investors Service, Inc. ("Moody's") and Standard and Poor's, a
division of The ▇▇▇▇▇▇- ▇▇▇▇ Companies, Inc. ("Standard & Poor's"),
respectively. The Class A-2 Notes, Class A-3 Notes and Class A-4 Notes
shall have been rated "Aaa" and "AAA" by Moody's and Standard & Poor's,
respectively, the Class B Notes shall have been rated at least "A3" and "A"
by Moody's and Standard & Poor's, respectively.
(r) You shall have received, from each of BMW Financial Services and
the Depositor, a certificate executed by a secretary or assistant secretary
thereof to which shall be attached certified copies of the: (i) certificate
of formation, (ii) limited liability company agreement, (iii) applicable
resolutions authorizing the transactions contemplated hereby and in the
Transaction Documents and (iv) designation of incumbency of each such
entity.
The Depositor will provide or cause to be provided to the
Representative conformed copies of such opinions, certificates, letters and
documents as the Representative or counsel to the Underwriters may reasonably
request.
Section 8. Termination. This Agreement shall be subject to
termination in the sole discretion of the Representative by notice to the
Depositor given on or prior to the Closing Date in the event that the Depositor
shall have failed, refused or been unable to perform all obligations and satisfy
all conditions on its part to be performed or satisfied hereunder at or prior
thereto or, if at or prior to the Closing Date, (a) trading in securities
generally on the New York Stock Exchange shall have been suspended or materially
limited or minimum or maximum prices shall have been established by or on, as
the case may be, the Securities and Exchange Commission or the New York Stock
Exchange; (b) trading of any securities of the Depositor or any affiliate of the
Depositor shall have been suspended on any exchange or in any over-the-counter
market; (c) a general moratorium on commercial banking activities shall have
been declared by either federal, New Jersey State authorities or New York State
authorities; (d) there shall have occurred (i) an outbreak or escalation of
hostilities between the United States and any foreign power, (ii) an outbreak or
23
escalation of any other insurrection or armed conflict involving the United
States, or (iii) any other calamity or crisis or materially adverse change in
general economic, political or financial conditions having an effect on the U.S.
financial markets that, in the sole judgment of the Representative, makes it
impractical or inadvisable to proceed with the offering or the delivery of the
Notes as contemplated by the Prospectus, as amended as of the date hereof; (e)
any change, or any development involving a prospective change, in or affecting
the Receivables or particularly the business or properties of the Trust, the
Depositor or BMW Financial Services shall have occurred which, in the judgment
of the Representative, materially impairs the investment quality of the Notes or
makes it impractical or inadvisable to market the Notes; or (f) any downgrading
in the rating of any debt securities of the Depositor or any of its Affiliates,
if any, by any "nationally recognized statistical rating organization" (as
defined for purposes of Rule 436(g) under the Act), or any public announcement
that any such organization has under surveillance or review its rating of any
such debt securities (other than an announcement with positive implications of a
possible upgrading, and no implication of a possible downgrading, of such
rating) shall have occurred. Termination of this Agreement pursuant to this
Section 8 shall be without liability of any party to any other party except for
the liability of the Depositor in relation to expenses as provided in Section 6
hereof, the indemnity provided in Section 9 hereof and any liability arising
before or in relation to such termination.
Section 9. Indemnification and Contribution.
(a) The Depositor and BMW Financial Services will, jointly and
severally, indemnify and hold harmless each Underwriter, the directors,
officers, employees and agents of each Underwriter and each person, if any,
who controls any Underwriter within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act against any and all losses, claims, damages
or liabilities, joint or several, to which such Underwriter or such
controlling person may become subject under the Act, the Exchange Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon:
(i) any untrue statement or alleged untrue statement made by the
Depositor or BMW Financial Services in Section 2 hereof,
(ii) any untrue statement or alleged untrue statement of any
material fact contained or incorporated in the Registration Statement,
the preliminary prospectus, if any, the Computational Materials, if
any, or the Prospectus or any amendment or supplement thereto or
(iii) the omission or alleged omission to state in the
Registration Statement, the preliminary prospectus, if any, the
Computational Materials, if any, or the Prospectus or any amendment or
supplement thereto a material fact required to be stated therein or
necessary to make the statements therein, not misleading, and will
reimburse, as incurred, each such indemnified party for any legal or
other costs or expenses reasonably incurred by it in connection with
investigating, defending against or appearing as a third-party witness
in connection with any such loss, claim, damage, liability or action;
provided, however, that the Depositor and BMW Financial Services will
not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon any untrue
statement or alleged untrue statement or omission or alleged omission
24
made in the preliminary prospectus, if any, the Computational
Materials, if any, or the Prospectus or any amendment or supplement
thereto in reliance upon and in conformity with the Underwriters'
Information; provided, further, that the Depositor and BMW Financial
Services shall not be liable to any Underwriter or any of the
directors, officers, employees and agents of an Underwriter and each
person, if any, who controls any Underwriter within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act with respect
to any loss, claim, damage or liability that results from the fact
that the Underwriter sold Notes to a person to whom there was not sent
or given, at or prior to the written confirmation of such sale, if
delivery thereof was required, a copy of the Prospectus or of the
Prospectus as then amended or supplemented, whichever is most recent,
if the Depositor has previously furnished copies thereof to such
Underwriter. The indemnity provided for in this Section 9 shall be in
addition to any liability which the Depositor and BMW Financial
Services may otherwise have. The Depositor and BMW Financial Services
will not, without the prior written consent of the Representative,
settle or compromise or consent to the entry of any judgment in any
pending or threatened claim, action, suit or proceeding in respect of
which indemnification may be sought hereunder (whether or not the
Representative or any person who controls the Representative is a
party to such claim, action, suit or proceeding), unless such
settlement, compromise or consent (i) includes an unconditional
release of all of the Underwriters and such controlling persons from
all liability arising out of such claim, action, suit or proceeding
and (ii) does not include a statement as to or admission of, fault,
culpability or a failure to act by or on behalf of any Underwriter or
controlling person.
(b) Each Underwriter, severally and not jointly, will indemnify and
hold harmless each of the Depositor and BMW Financial Services, each of its
directors and officers and each person, if any, who controls the Depositor
or BMW Financial Services within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act against any losses, claims, damages or
liabilities to which the Depositor, BMW Financial Services or any such
director, officer or controlling person may become subject under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon (i) any untrue
statement or alleged untrue statement of any material fact contained in the
Registration Statement (or any amendment thereto) or the preliminary
prospectus, if any, the Computational Materials, if any, or the Prospectus
(or any amendment or supplement thereto) or (ii) the omission or the
alleged omission to state in the Registration Statement (or any amendment
thereto) or the preliminary prospectus, if any, the Computational
Materials, if any, or the Prospectus (or any amendment or supplement
thereto) a material fact required to be stated therein or necessary to make
the statements therein not misleading, in each case to the extent, but only
to the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in conformity
with the Underwriters' Information, and, subject to the limitation set
forth immediately preceding this clause, will reimburse, as incurred, any
legal or other expenses reasonably incurred by the Depositor, BMW Financial
Services or any such director, officer or controlling person in connection
with investigating, defending against or appearing as a third-party witness
in connection with any such loss, claim, damage, liability or any action in
respect thereof. The remedies provided for in this Section 9 are not
exclusive and shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
25
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which
indemnity may be sought pursuant to paragraph (a) or (b) of this
Section 9, such person (for purposes of this paragraph (c), the
"indemnified party") shall, promptly after receipt by such party of
notice of the commencement of such action, notify the person against
whom such indemnity may be sought (for purposes of this paragraph
(c), the "indemnifying party"), but the failure to so notify the
indemnifying party will not relieve it from any liability which it
may have to any indemnified party (i) under paragraph (a) or (b) of
this Section 9 unless and to the extent it did not otherwise learn of
such action and such failure results in the forfeiture by the
indemnifying party of substantial rights and defenses or (ii)
otherwise than under this Section 9. In case any such action is
brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein and, to the extent that
it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party (which may be counsel to such
indemnifying party if otherwise reasonably acceptable to the
indemnified party); provided, however, that if the defendants in any
such action include both the indemnified party and the indemnifying
party and the indemnified party shall have reasonably concluded that
there may be one or more legal defenses available to it and/or other
indemnified parties which are different from or additional to those
available to the indemnifying party, the indemnifying party shall not
have the right to direct the defense of such action on behalf of such
indemnified party or parties and such indemnified party or parties
shall have the right to select separate counsel to defend such action
on behalf of such indemnified party or parties. After notice from the
indemnifying party to such indemnified party of its election so to
assume the defense of any such action and approval by such
indemnified party of counsel appointed to defend such action, the
indemnifying party will not be liable to such indemnified party under
this Section 9 for any legal or other expenses, other than reasonable
costs of investigation, subsequently incurred by such indemnified
party in connection with the defense thereof, unless (i) the
indemnified party shall have employed separate counsel in accordance
with the proviso to the next preceding sentence (it being understood,
however, that in connection with such action the indemnifying party
shall not be liable for the expenses of more than one separate
counsel (in addition to local counsel in each applicable local
jurisdiction) in any one action or separate but substantially similar
actions arising out of the same general allegations or circumstances,
designated in writing by the Representative in the case of paragraph
(a) of this Section 9, representing the indemnified parties under
such paragraph (a) who are parties to such action or actions), or
(ii) the indemnifying party does not promptly retain counsel
satisfactory to the indemnified party, or (iii) the indemnifying
party has authorized the employment of counsel for the indemnified
party at the expense of the indemnifying party. All fees and expenses
reimbursed pursuant to this paragraph (c) shall be reimbursed as they
are incurred. After such notice from the indemnifying party to such
indemnified party, the indemnifying party will not be liable for the
costs and expenses of any settlement of such action effected by such
indemnified party without the consent of the indemnifying party.
(d) In circumstances in which the indemnity agreement provided for in
the preceding paragraphs of this Section 9 is unavailable or insufficient,
for any reason, to hold harmless an indemnified party in respect of any
losses, claims, damages or liabilities (or actions in respect thereof),
each indemnifying party, in order to provide for just and equitable
contribution, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or
26
liabilities (or actions in respect thereof) in such proportion as is
appropriate to reflect (i) the relative benefits received by the
indemnifying party or parties on the one hand and the indemnified party on
the other from the offering of the Notes or (ii) if the allocation provided
by the foregoing clause (i) is not permitted by applicable law, not only
such relative benefits but also the relative fault of the indemnifying
party or parties on the one hand and the indemnified party on the other in
connection with the statements or omissions or alleged statements or
omissions that resulted in such losses, claims, damages or liabilities (or
actions in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Depositor and BMW
Financial Services on the one hand and the Underwriters on the other shall
be deemed to be in the same proportion as the total proceeds from the
offering of the Notes (before deducting expenses) received by the Depositor
bear to the total discounts and commissions received by the Underwriters
(the "Spread"), in each case as set forth in the Prospectus Supplement. The
relative fault of the parties shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates
to information supplied by the Depositor, BMW Financial Services or the
Underwriters, the parties' relative intents, knowledge, access to
information and opportunity to correct or prevent such statement or
omission, and any other equitable considerations appropriate in the
circumstances. The Depositor, BMW Financial Services and the Underwriters
agree that it would not be equitable if the amount of such contribution
were determined by pro rata or per capita allocation (even if the
Underwriters were treated as one entity for such purpose) or by any other
method of allocation that does not take into account the equitable
considerations referred to above in this paragraph (d). Notwithstanding any
other provision of this paragraph (d), no Underwriter shall be obligated to
make contributions hereunder that in the aggregate exceed the amount by
which the Spread received by it in the initial offering of such Notes, less
the aggregate amount of any damages that such Underwriter has otherwise
been required to pay in respect of the same or any substantially similar
claim, and no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations to contribute hereunder are several in proportion
to their respective principal amount of Securities they have purchased
hereunder, and not joint. For purposes of this paragraph (d), each person,
if any, who controls an Underwriter within the meaning of Section 15 of the
Act or Section 20 of the Exchange Act, and each director, officer, employee
and agent of an Underwriter shall have the same rights to contribution as
such Underwriter, and each director of the Depositor and BMW Financial
Services, each officer of the Depositor and BMW Financial Services and each
person, if any, who controls the Depositor and BMW Financial Services
within the meaning of Section 15 of the Act or Section 20 of the Exchange
Act, shall have the same rights to contribution as the Depositor and BMW
Financial Services.
Section 10. Defaults by an Underwriter. If any one or more
Underwriter(s) fail(s) to purchase and pay for any of the Notes agreed to be
purchased by such Underwriter(s) hereunder, and such failure constitutes a
default in the performance of its or their obligations under this Agreement, the
remaining Underwriter(s) shall be obligated severally to take up and pay for (in
the respective proportions that the amount of Notes set forth opposite their
names in Schedule I bears to the aggregate amount of Notes set forth opposite
the names of all the remaining Underwriter(s)) the Notes that the defaulting
Underwriter(s) agreed but failed to purchase; provided, however, that if the
aggregate amount of Notes that the defaulting Underwriter(s) agreed but failed
27
to purchase exceeds 10% of the aggregate principal amount of Notes, the
remaining Underwriter(s) shall have the right to purchase all, but shall not be
under any obligation to purchase any, of the Notes, and if such non-defaulting
Underwriter(s) do not purchase all the Notes, this Agreement will terminate
without liability to any non-defaulting Underwriter. In the event of a default
by any Underwriter as set forth in this paragraph, the Closing Date shall be
postponed for such period, not exceeding seven days, as the remaining
Underwriter(s) shall determine in order that the required changes in the
Prospectus or in any other documents or arrangements may be effected. Nothing
contained in this Agreement shall relieve any defaulting Underwriter(s) of any
liability to the Depositor, BMW Financial Services, their respective affiliates
and any non-defaulting Underwriter(s) for damages occasioned by its default
hereunder.
Section 11. Survival of Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements set forth in or made pursuant to this Agreement or contained in
certificates of officers submitted pursuant hereto shall remain operative and in
full force and effect, regardless of any investigation or statement as to the
results thereof, and will survive delivery of and payment for the Notes. If for
any reason the purchase of the Notes by the Underwriters is not consummated,
each of the Depositor and BMW Financial Services shall remain responsible for
the expenses to be paid or reimbursed pursuant to Section 6 hereof and the
obligations pursuant to Section 9 hereof shall remain in effect. If for any
reason the purchase of the Notes by the Underwriters is not consummated, the
Depositor and BMW Financial Services will reimburse the Underwriters severally,
upon demand, for all out-of-pocket expenses (including fees and disbursements of
counsel) incurred by any Underwriter in connection with the offering of the
Notes.
Section 12. Notices. In all dealings hereunder, you shall act on
behalf of each of the Underwriters, and the parties hereto shall be entitled to
act and rely upon any statement, request, notice or agreement on behalf of any
Underwriter made or given by the Representative. Any notice or notification in
any form to be given under this Agreement may be delivered in person or sent by
telex, facsimile or telephone (subject in the case of a communication by
telephone to confirmation by telex or facsimile) addressed to:
in the case of the Depositor: BMW FS Securities LLC
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Telex: ▇▇▇-▇▇▇-▇▇▇▇
Attention: Vice President - Finance and Risk
in the case of BMW Financial Services: BMW Financial Services NA, LLC
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telex: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇
28
in the case of the Representative: Citigroup Global Markets Inc.
as Representative of the several
Underwriters
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇▇▇▇▇
Telex: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Myongsu Kong, Esq.
Any such notice shall take effect, in the case of delivery, at the
time of delivery and, in the case of telex or facsimile, at the time of
dispatch.
Section 13. Successors. This Agreement will inure to the benefit of
and be binding upon the parties hereto, their respective successors and agents,
and the directors, officers and control persons referred to in Section 9 hereof,
and no other person will have any rights or obligations hereunder.
Section 14. Miscellaneous.
(a) Time shall be of the essence of this Agreement.
(b) The headings herein are inserted for convenience of reference
only and are not intended to be part of, or to affect, the meaning or
interpretation of this Agreement.
(c) For purposes of this Agreement, (a) "business day" means any day
on which the New York Stock Exchange is open for trading, and (b) "subsidiary"
has the meaning set forth in Rule 405 under the Act.
(d) This Agreement may be executed in any number of counterparts, all
of which, taken together, shall constitute one and the same Agreement and any
party may enter into this Agreement by executing a counterpart.
(e) This Agreement shall inure to the benefit of and shall be binding
upon the several Underwriters, the Depositor, BMW Financial Services and their
respective successors and legal representatives, and nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any other
person any legal or equitable right, remedy or claim under or in respect of this
Agreement, or any provisions herein contained, this Agreement and all conditions
and provisions hereof being intended to be and being for the sole and exclusive
benefit of such persons and for the benefit of no other person, except that (i)
the indemnities of the Depositor and BMW Financial Services contained in Section
9 hereof shall also be for the benefit of any person or persons who control any
Underwriter within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act and (ii) the indemnities of the Underwriters contained in Section 9
hereof shall also be for the benefit of the directors of the Depositor and BMW
Financial Services, the officers of the Depositor and BMW Financial Services and
any person or persons who control the Depositor or BMW Financial Services within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act. No
purchaser of Notes from any Underwriter shall be deemed a successor because of
such purchase.
29
(f) The respective representations, warranties, agreements,
covenants, indemnities and other statements of the Depositor and BMW Financial
Services, their respective officers and the several Underwriters set forth in
this Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement shall remain in full force and effect, regardless of (i) any
investigation made by or on behalf of the Depositor or BMW Financial Services,
any of their respective officers, directors, employees or agents, any
Underwriter or any controlling person referred to in Section 9 hereof and (ii)
delivery of and payment for the Notes. The respective agreements, covenants,
indemnities and other statements set forth in Sections 5 and 9 hereof shall
remain in full force and effect, regardless of any termination or cancellation
of this Agreement.
Section 15. Severability. It is the desire and intent of the parties
that the provisions of this Agreement be enforced to the fullest extent
permissible under the law and public policies applied in each jurisdiction in
which enforcement is sought. Accordingly, in the event that any provision of
this Agreement would be held in any jurisdiction to be invalid, prohibited or
unenforceable for any reason, such provision, as to such jurisdiction, shall be
ineffective, without invalidating the remaining provisions of this Agreement or
affecting the validity or enforceability of such provision in any other
jurisdiction.
Section 16. Governing Law. The validity and interpretation of this
Agreement, and the terms and conditions set forth herein, shall be governed by
and construed in accordance with the laws of the State of New York, without
giving effect to any provisions relating to conflicts of laws (other than
Section 5-1401 of the general obligations law).
30
If the foregoing is in accordance with your understanding, please
sign and return to us five counterparts hereof, and upon the acceptance hereof
by you, on behalf of each of the Underwriters, this letter and such acceptance
hereof shall constitute a binding agreement among each of the Underwriters and
the Depositor and BMW Financial Services.
Very truly yours,
BMW FS SECURITIES LLC
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Treasurer
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President - Finance
BMW FINANCIAL SERVICES NA, LLC
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Treasurer
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President - Finance and Risk
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
Citigroup Global Markets Inc.
on behalf of itself and as Representative of the several Underwriters
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
SCHEDULE I
CLASS A-1 CLASS A-2 CLASS A-3 CLASS A-4 CLASS B
UNDERWRITER NOTES NOTES NOTES NOTES NOTES
--------------------------- ------------ ------------ ------------ ------------ -----------
Citigroup Global Markets Inc. $161,500,000 $193,375,000 $199,750,000 $126,188,025 $16,346,000
Banc One Capital Markets, Inc. 161,500,000 193,375,000 199,750,000 126,188,025 16,346,000
ABN AMRO Incorporated 19,000,000 22,750,000 23,500,000 14,845,650 -
Banc of America Securities LLC 19,000,000 22,750,000 23,500,000 14,845,650 -
▇.▇. ▇▇▇▇▇▇ Securities Inc. 19,000,000 22,750,000 23,500,000 14,845,650 -
------------ ------------ ------------ ------------ -----------
Total $380,000,000 $455,000,000 $470,000,000 $296,913,000 $32,692,000
============ ============ ============ ============ ===========
I-1
SCHEDULE II
SECURITY PRINCIPAL BALANCE $ INVESTOR PRICE % PRICE % RATE %
--------------------------------------- ------------------- -------------------- ---------- -------
Class A-1 Notes $380,000,000 100.000000% 0.080% 1.25%
Class A-2 Notes $455,000,000 99.998413% 0.125% 1.45%
Class A-3 Notes $470,000,000 99.986126% 0.175% 1.94%
Class A-4 Notes $296,913,000 99.980435% 0.225% 2.53%
Class B Notes $32,692,000 99.971750% 0.270% 2.93%
Total Price to Public: $1,634,465,245
Total Price to Depositor: $1,632,013,672
Underwriting Discounts and Commissions: $2,451,573
II-1
SCHEDULE III
UCC-I
OFFICE OF DEBTOR SECRETARY OF STATE SECURED PARTY
--------------------------------- ------------------ -----------------------------------
BMW Financial Services NA, LLC Delaware BMW FS Securities LLC
BMW Financial Services NA, LLC Ohio BMW FS Securities LLC
BMW FS Securities LLC Delaware BMW Vehicle Owner Trust 2003-A
BMW FS Securities LLC Ohio BMW Vehicle Owner Trust 2003-A
BMW Vehicle Owner Trust 2003-A Delaware Citibank, N.A., as Indenture Trustee
UCC-III
OFFICE OF DEBTOR SECRETARY OF STATE SECURED PARTY
-------------------------------- ------------------ ----------------------------------
BMW Financial Services NA, LLC Delaware Bank One, NA
BMW FS Funding Corp. Delaware Bank One, NA
III-1