BMW VEHICLE OWNER TRUST 2001-A
$1,581,800,000 ASSET BACKED NOTES
BMW FS SECURITIES LLC
(DEPOSITOR)
UNDERWRITING AGREEMENT
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May 10, 2001
▇. ▇. ▇▇▇▇▇▇ Securities Inc.
As Representative of the
Several Underwriters
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
SECTION 1. Introductory. BMW FS Securities LLC (the "Depositor")
proposes to cause BMW Vehicle Owner Trust 2001-A (the "Trust") to issue and sell
$329,000,000 principal amount of its 3.98875% Class A-1 Notes (the "Class A-1
Notes"), $448,000,000 principal amount of its 4.26% Class A-2 Notes (the "Class
A-2 Notes"), $499,000,000 principal amount of its 4.70% Class A-3 Notes (the
"Class A-3 Notes"), $274,000,000 principal amount of its 5.11% 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 $31,800,000 principal
amount of its 5.46% 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 you are acting as representative (the
"Representative"). The Notes will be issued pursuant to an Indenture, to be
dated as of May 1, 2001 (the "Indenture"), between the Trust and The Chase
Manhattan Bank, 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 (the "Initial Receivables") secured by new and used automobiles,
motorcycles, light-duty trucks and sport utility vehicles financed thereby (the
"Initial Vehicles") and certain monies received thereunder after the close of
business on April 30, 2001 (the "Initial Cutoff Date"), motor vehicle retail
installment sale contracts transferred to the Trust after the Closing Date and
prior to September 1, 2001 (the "Subsequent Receivables" and together with the
Initial Receivables, the "Receivables") secured by new and used automobiles,
motorcycles, light-duty trucks and sport utility vehicles financed thereby (the
"Subsequent Vehicles" and together with the Initial Vehicles, the "Vehicles")
and certain monies received thereunder after the related subsequent cutoff date,
and the other property and the proceeds thereof to be conveyed to the Trust
pursuant to the Sale and Servicing Agreement to be dated as of May 1, 2001 (the
"Sale and Servicing Agreement") among the Trust, BMW Financial Services NA, LLC
("BMW Financial Services"), as servicer, seller, administrator and custodian (in
such capacity, the "Servicer"), 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 the Owner Trust Administration Agreement
to be dated as of May 1, 2001 (the "Owner Trust Administration Agreement") among
the Trust, BMW Financial Services and the Indenture Trustee, BMW Financial
Services will agree to perform certain administrative tasks on behalf of the
Trust. The Depositor will form the Trust pursuant to a Trust Agreement (as
amended and supplemented from time to time, the "Trust Agreement") to be dated
as of May 1, 2001 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 the terms of the Receivables Purchase Agreement (the
"Receivables Purchase Agreement") dated as of May 1, 2001 between the Depositor
and BMW Financial Services. BMW Financial Services will acquire the Receivables
from BMW FS Funding Corp. ("BFFC") pursuant to the terms of a ▇▇▇▇ of Sale (the
"▇▇▇▇ of Sale") dated as of May 18, 2001 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. As used herein, the
term "Transaction Documents" refers to the Sale and Servicing Agreement,
Indenture, Trust Agreement, ▇▇▇▇ of Sale, Receivables Purchase Agreement, Owner
Trust Administration Agreement and Note Depository Agreement.
SECTION 2. Representations and Warranties. (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. 333-56802), 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
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prospectus" means any form of prospectus, including any prospectus
supplement, relating to the Notes used prior to date of this Agreement
that is subject to completion; the "Base Prospectus" means the base
prospectus dated May 8, 2001 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 relating to
the Notes, 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 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 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 and the
Prospectus.
(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 and the Trust is not required to
register under the Investment Company Act of 1940, as amended.
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(vii) The Indenture has been qualified under the Trust Indenture Act of
1939, as amended.
(viii) The Depositor has filed the preliminary prospectus supplement
relating to the Notes pursuant to and in accordance with Rule 424(b).
(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, enforceable
in accordance with their terms, and entitled to the benefits of the
Indenture.
(x) Each of the Depositor, BMW Financial Services and BFFC has been
duly incorporated and is validly existing as a corporation or limited
liability company in good standing under the law of its jurisdiction of
incorporation 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 have 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.
(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 and 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.
(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 (x) require the consent,
approval, authorization, registration or qualification of or with any
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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
(y) 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 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, in each case, 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 of 1940, as
amended (the "Investment Company Act"); nor will the Depositor nor 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 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, BFFC or
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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 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
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 affiliate 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 assignment of a portion of the Receivables to BMW
Financial Services pursuant to the ▇▇▇▇ of Sale will vest in BMW
Financial Services all of BFFC's right, title and interest to the
Receivables.
(xxiv) BMW Financial Services's assignment of a portion of the
Receivables to the Depositor pursuant to the Receivables Purchase
Agreement will vest in the Depositor all of BMW Financial Services's
right, title and interest to the Receivables.
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(xxv) The Depositor's 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.
(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 entitled to the benefits of the Indenture.
(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.
(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 chattel paper as defined in the Uniform
Commercial Code as in effect in the State of New Jersey.
(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 ▇▇▇▇ 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 ▇▇▇▇ 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
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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 ▇▇▇▇ 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.
(xxxiii) Immediately prior to the transfer of the Receivables to BMW
Financial Services, BMW Financial Services' interest in the Receivables
and the proceeds thereof shall be perfected upon the filing of UCC-1
financing statements, or in the case of the sale from BFFC to BMW
Financial Services UCC-3 financing statements, (the "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 Financing Statements. If a court concludes that
the transfer of the Receivables from BFFC to BMW Financial Services is
a sale, the interest of BMW Financial Services in the Receivables and
the proceeds thereof will be perfected upon the filing of the Financing
Statements in the offices set forth in Schedule III hereto. If a court
concludes that such transfer is not a sale, the ▇▇▇▇ of Sale and the
transactions contemplated thereby constitute a grant by BFFC to BMW
Financial Services of a valid security interest in the Receivables and
the proceeds thereof, which security interest will be perfected upon
the filing of the 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 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 proceeds
thereof shall be perfected upon the filing of UCC-1 or UCC-3 financing
statements (the "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 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 Financing Statements in the offices set forth in
Schedule III hereto. 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 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
"Financing Statements") in the offices specified in Schedule III and
there shall be no unreleased statements affecting the Receivables filed
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in such offices other than the 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 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 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.
(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 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 May 18, 2001. 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 May 18, 2001 (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 limited circumstances.
(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
Company, the Company agrees to pay to the Underwriters in respect of each day
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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 any of you, 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 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.
(a) The Depositor will furnish to the Underwriters and counsel for
the Underwriters, without charge, as many copies of any preliminary prospectus,
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 "Computational Materials") (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
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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. 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 of 1939, as amended 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
obliged to file any general consent to service of process or to qualify as a
foreign corporation 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 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
11
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, (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 will 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 will
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 Offering Memorandum 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 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 sixteen 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 or any of their respective affiliates will,
without the prior written consent of the Representative, directly or indirectly,
12
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 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(c) 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 ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger.
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 made pursuant hereto, to the
performance by the Depositor and BMW Financial Services of their obligations
hereunder, and to the following additional conditions precedent:
(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, 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 shall have been
filed with the Commission in accordance with the Rules and Regulations and
Section 5(a) hereof on or prior to the Closing Date, no stop order suspending
the effectiveness of the Registration Statement shall have been issued and no
13
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
Underwriters, dated the Closing Date and satisfactory in form and substance to
you 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.
(iv) Neither: (A) the transfer of the Receivables from BFFC to BMS FS
pursuant to the ▇▇▇▇ 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 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 ▇▇▇▇ 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
14
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 property 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 investigations pending or, to
the best of such counsel's knowledge after due inquiry, threatened
before any court, administrative agency or other tribunal: (A)
asserting the invalidity or unenforceability of this Agreement or the
Transaction Documents, (B) seeking to prevent the consummation of any
of the transactions contemplated by this Agreement or the Transaction
Documents, or the execution and delivery thereof, (C) that might
materially and adversely affect the performance by the Depositor of its
obligations under this Agreement or the Transaction Documents, (D) that
might materially and adversely affect the performance by BMW Financial
Services of its obligations under this Agreement or the Transaction
Documents.
(vi) Such counsel is familiar with BMW Financial Services's 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 shall be
adversely affected by the transfer of the Receivables to the Depositor,
the Trust or the pledge thereof to the Indenture Trustee.
(vii) The direction by the Trust to the Indenture Trustee to
authenticate the Notes has been duly authorized by BMW Financial
Services, acting as the administrator of the Trust under the Owner
Trust Administration Agreement.
(e) The Representative shall have received an opinion of Weil,
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 their counsel, 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,
reorganization, moratorium or other similar laws relating to creditors'
rights generally, and (B) except that the remedy of specific
performance and injunctive and other forms of equitable relief may be
15
subject to equitable defenses and to the discretion of the court before
which any proceeding therefor may be brought.
(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 valid and
binding obligations of the Trust, enforceable in accordance with their
terms, subject to: (A) applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors'
rights generally, (B) general principles of equity (regardless of
whether the enforcement of such remedies is considered in a proceeding
in equity or at law), and (C) the further qualification that certain of
the remedial provisions in the Indenture may be limited or rendered
unenforceable under the laws of New York (but such laws do not, in such
counsel's opinion, make the remedies provided by the Indenture
unsatisfactory for the realization of the benefits provided thereby).
(iii) The Transaction Documents conform in all material respects with
the description thereof contained in the Prospectus and any amendment
or supplement thereto.
(iv) The statements contained in the Prospectus and any supplement
thereto under the captions "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.
(v) 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.
(vi) The Indenture has been duly qualified under the Trust Indenture
Act.
(vii) The Trust Agreement need not be qualified under the Trust
Indenture Act.
(viii) 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.
(ix) 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.
(x) The Indenture constitutes a grant by the Trust to the Indenture
Trustee of a valid security interest 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
16
interest in the Reserve Account constitutes a perfected first priority
security interest therein.
(xi) 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, except such filings with respect to the
transfer of the Receivables to BMW Financial Services pursuant to the
▇▇▇▇ of Sale, the transfer of the Receivables to the Depositor pursuant
to the Receivables Purchase Agreement, and the transfer of the
Receivables to the Trust pursuant to the Sale and Servicing Agreement,
as have been made and such other approvals as have been obtained.
(xii) To the best of such counsel's knowledge, there are no contracts
or documents of the Registrants which are required to be filed as
exhibits to the Registration Statement pursuant to the Act or the Rules
or Regulations which have not been so filed.
(xiii) The Registration Statement became effective under the Act on May
8, 2001 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.
(xiv) 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, 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 or any amendment or supplement
thereto.
(xv) 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
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 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.
17
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 Underwriter. 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 of America and the
laws of the State of New York.
(f) You shall have received an opinion of Sills, Cummis, counsel to
the Depositor, BMW Financial Services and the Trust, addressed to the
Underwriters, dated the Closing Date and satisfactory in form and substance to
you and counsel to the Underwriters, to the effect that:
(i) If a court concludes that the transfer of the Receivables from BMW
Financial Services to the Depositor is a sale, the ownership interest
of the Depositor in the Receivables and the proceeds thereof will have
been perfected by the filing of a UCC financing statement with all
applicable governmental offices and will constitute a perfected first
priority interest therein. If a court concludes that such transfer is
not a sale, the Receivables Purchase Agreement constitutes a grant by
BMW Financial Services to the Depositor of a valid security interest in
the Receivables and the proceeds of each of the foregoing, which
security interest will have been perfected upon the filing of a UCC
financing statement with all applicable governmental offices and will
constitute a perfected first priority security interest therein. No
filing or other action, other than the filing of the UCC financing
statements referred to above and any required continuation statements
thereto, was or will be necessary to perfect and maintain the interest
of the Depositor in the Receivables and the proceeds of each of the
foregoing against third parties.
(ii) Immediately before the transfer of the Receivables to the Trust
pursuant to the Sale and Servicing Agreement, the Depositor's interest
in the Receivables and the proceeds of each of the foregoing was
perfected upon the filing of a UCC financing statement with all
applicable governmental offices and constituted a perfected first
priority interest therein. If a court concludes that the transfer of
the Receivables from the Depositor to the Trust is a sale, the
ownership interest of the Trust in the Receivables and the proceeds of
each of the foregoing will have been perfected by the filing of a UCC
financing statement with all applicable governmental offices and will
constitute a perfected first priority interest therein. If a court
concludes that such transfer is not a sale, the Sale and Servicing
Agreement constitutes a grant by the Depositor to the Trust of a valid
security interest in the Receivables and the proceeds of each of the
foregoing, which security interest will have been perfected upon the
filing of a UCC financing statement with all applicable governmental
offices and will constitute a perfected first priority security
interest therein. No filing or other action, other than the filing of
the UCC financing statements referred to above and any required
continuation statements thereto, was or will be necessary to perfect
and maintain the interest of the Trust in the Receivables and the
proceeds of each of the foregoing against third parties.
18
(iii) The Receivables are chattel paper or general intangibles as
defined in the Uniform Commercial Code as in effect in New Jersey.
(g) Weil, Gotshal & ▇▇▇▇▇▇ LLP, in its capacity as Federal tax and
ERISA counsel for 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 you, to the effect that
the statements in the Prospectus Supplement under the heading "Summary of Terms
- Tax Status" and "Material Income Tax Consequences," and in the Base Prospectus
under the heading "Summary of Terms - Tax Status" and "Material Income Tax
Consequences" to the extent they constitute matters of law or legal conclusions,
accurately describe the material Federal income tax consequences to the
Noteholders, and the statements in the Prospectus Supplement under the heading
"Summary of Terms - ERISA Considerations" and "ERISA Considerations" and in the
Base Prospectus under the heading "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, accurately
describe the material consequences to the Noteholders under ERISA.
(h) Weil, Gotshal & ▇▇▇▇▇▇ LLP, in its capacity as counsel for the
Depositor and the Trust, shall have delivered an opinion satisfactory in form
and substance to the Representative and their counsel, 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 creation of a "true
sale" with respect to 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) You shall have received an opinion addressed to the Underwriters
of Thacher, ▇▇▇▇▇▇▇▇ & ▇▇▇▇, counsel to the Indenture Trustee, dated the Closing
Date and satisfactory in form and substance to you 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.
19
(iv) The Indenture constitutes a valid and binding obligation of the
Indenture Trustee enforceable against it in accordance with their terms
under the laws of New York and the Federal laws of the United States.
(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.
(j) You shall have received an opinion addressed to the Underwriters,
of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, counsel to the Owner Trustee, dated the Closing
Date and satisfactory in form and substance to you 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.
(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) The Notes have been duly executed and delivered by the Owner
Trustee, on behalf of the Trust.
20
(k) You shall have received an opinion addressed to the Underwriters,
of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, special Delaware counsel for the Trust, dated the
Closing Date and satisfactory in form and substance to you 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 (i)
applicable bankruptcy, insolvency, moratorium, receivership,
reorganization, fraudulent conveyance and similar laws relating to and
affecting the rights and remedies of creditors generally, and (ii)
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 Business Trust Act (the "Business
Trust Act") and has the power and authority under the Trust Agreement
and the Business 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) To the extent that Article 9 of the Uniform Commercial Code as in
effect in the State of Delaware (the "Delaware UCC") is applicable
(without regard to conflicts of laws principles), and assuming that the
security interest created by each of the Sale and Servicing Agreement
and the Indenture in the Receivables has been duly created and has
attached, upon the filing of UCC-1 financing statements with the
Secretary of State of the State of Delaware the Trust will have a
perfected security interest in the transfer of Receivables pursuant to
the Indenture and the proceeds thereof, and such security interest will
be prior to any other security interest that is perfected solely by the
filing of financing statements under the Delaware UCC, excluding
purchase money security interests underss. 9-312(4) of the UCC and
temporarily perfected security interests in proceeds underss. 9-306(3)
of the Delaware UCC and the Trustee will have a perfected security
interest in such Receivables and the proceeds thereof, and such
security interest will be prior to any other security interest that is
perfected solely by the filing of financing statements under the
Delaware UCC, excluding purchase money security interests underss.
9-312(4) of the UCC and temporarily perfected security interests in
proceeds underss. 9-306(3) of the Delaware UCC.
(v) 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.
(vi) Under ss. 3805(b) of the Business 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
21
property of the Trust except in accordance with the terms of the Trust
Agreement.
(vii) Under ss. 3805(c) of the Business Trust Act, 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.
(viii) 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.
(ix) 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 will conflict with or result in a breach or violation of any
law of the State of Delaware.
(l) The Representative shall have received copies of each opinion of
counsel delivered to any rating agency, together with a letter addressed to the
Underwriters, 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.
(m) 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: (A) 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, (B) 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 (C) no stop order
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.
(n) 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 (A) the transfer
of the interest of BFFC in the Receivables and the proceeds thereof to BMW
Financial Services pursuant to the ▇▇▇▇ of Sale, (B) the transfer of the
interest of BMW Financial Services in the ▇▇▇▇ of Sale and the Receivables, and
22
the proceeds thereof to the Depositor pursuant to the Receivables Purchase
Agreement, (C) the transfer of the interest of the Depositor in the ▇▇▇▇ of Sale
and the Receivables Purchase Agreement, the Receivables, and the proceeds
thereof to the Trust pursuant to the Sale and Servicing Agreement, and (D) the
grant by the Trust to the Indenture Trustee under the Indenture of a security
interest in the interest of the Trust in the ▇▇▇▇ of Sale, the Receivables
Purchase Agreement, the Receivables, the Collateral and the proceeds thereof.
(o) The Class A-1 Notes shall have been rated in the highest
short-term rating by both Standard and Poor's, a division of The ▇▇▇▇▇▇- ▇▇▇▇
Companies, Inc. ("S&P") and ▇▇▇▇▇'▇ Investors Service, Inc. ("Moody's"). The
Class A Notes (other than the Class A-1 Notes) shall have been rated in the
highest long-term rating by both S&P and Moody's. The Class B Notes shall have
been rated at least in the single "A" rating category by both S&P and Moody's.
(p) 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) charter, (ii)
by-laws, (iii) applicable resolutions and (iv) designation of incumbency of each
such entity.
The Depositor will provide or cause to be provided to you conformed
copies of such opinions, certificates, leters and documents as you or your
counsel 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
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
23
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 Sections 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 Securities 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 Securities 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, any
preliminary prospectus or the Prospectus or any amendment or supplement
thereto, or
(iii) the omission or alleged omission to state in the Registration
Statement , any preliminary prospectus 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 made in any preliminary prospectus 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 Securities 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
24
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 Securities 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 Securities 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 any preliminary prospectus 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 any preliminary prospectus 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.
(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 omission so to notify the indemnifying
party will not relieve it from any liability which it may have to any
indemnified party otherwise than under this Section 9. In case any such action
25
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 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 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
26
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 Securities 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 Securities 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 Securities 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
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
27
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 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 and the obligations
pursuant to Section 9 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
28
in the case of BMW Financial Services:
BMW Financial Services NA, LLC
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telex: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇
in the case of the Representative:
▇. ▇. ▇▇▇▇▇▇ Securities Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Telex: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
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, 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 Securities 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
29
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 Securities 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 Securities Act or Section 20 of
the Exchange Act. No purchaser of Notes from any Underwriter shall be deemed a
successor because of such purchase.
(f) The respective representations, warranties, agreements,
covenants, indemnities and other statements of the Depositor and BMW Financial
Services, its 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 its 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.
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/ J. ▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Name: J. ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Chief Tax Officer
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Treasurer
BMW FINANCIAL SERVICES NA, LLC
By: /s/ J. ▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Name: J. ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Chief Tax Officer
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Treasurer
The foregoing Agreement is hereby confirmed and accepted as of the
date first above written.
▇. ▇. ▇▇▇▇▇▇ SECURITIES INC.
on behalf of itself and as Representative of the
several Underwriters
By: /s/ ▇▇▇▇ ▇▇▇
-----------------------------------
Name: ▇▇▇▇ ▇▇▇
Title: Vice President
31
SCHEDULE I
Class A-1 Class A-2 Class A-3 Class A-4 Class B
Underwriter Notes Notes Notes Notes Notes
----------- ----- ----- ----- ----- -----
▇.▇. ▇▇▇▇▇▇ Securities
Inc.................. $263,200,000 $358,400,000 $399,200,000 $219,200,000 $31,800,000
Banc of America
Securities LLC....... $16,450,000 $22,400,000 $24,950,000 $13,700,000 ---
Banc One Capital
Markets, Inc......... $16,450,000 $22,400,000 $24,950,000 $13,700,000 ---
Deutsche Banc Alex.
▇▇▇▇▇ Inc............ $16,450,000 $22,400,000 $24,950,000 $13,700,000 ---
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney
Inc.................. $16,450,000 $22,400,000 $24,950,000 $13,700,000 ---
Total................ $329,000,000 $448,000,000 $499,000,000 $274,000,000 $31,800,000
SCHEDULE II
Original
Principal Investor Investor
Security Balance $ Price % Price $ Price % Price $ Rate %
-------- --------- ------- ------- ------- ------- ------
Class A-1 Notes $329,000,000 100.000000% $329,000,000.00 99.900000% $328,671,000.00 3.98875%
Class A-2 Notes $448,000,000 99.999807% $447,999,135.36 99.854807% $447,349,535.36 4.26%
Class A-3 Notes $499,000,000 99.981629% $498,908,328.71 99.791629% $497,960,228.71 4.70%
Class A-4 Notes $274,000,000 99.987754% $273,966,445.96 99.742754% $273,295,145.96 5.11%
Class B Notes $ 31,800,000 99.998201% $31,799,427.92 99.713201% $31,708,797.92 5.46%
Total Price to Public: $1,581,673,337.95
Total Price to Depositor: $1,578,984,707.95
Underwriting Discounts
and Commissions: $2,688,630.00
SCHEDULE III