EXHIBIT 1.1
BMW VEHICLE LEASE TRUST, SERIES 2000-A
$_________
____% Asset Backed Senior Notes, Class A-1
$_________
____% Asset Backed Senior Notes, Class A-2
$_________
____% Asset Backed Senior Notes, Class A-3
$_________
____% Asset Backed Senior Notes, Class A-4
UNDERWRITING AGREEMENT
November_, 2000
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.,
as Representative of the several Underwriters
listed on Schedule I hereto
c/o ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
BMW Auto Leasing LLC, a Delaware limited liability company (the
"Transferor"), and BMW Financial Services NA, LLC, a Delaware limited liability
company ("BMW FS"), hereby confirm their respective agreements with the several
underwriters named in Schedule I hereto (the "Underwriters"), for whom you are
acting as representative (the "Representative"), with respect to the sale by the
Transferor and the purchase by the Underwriters, acting severally and not
jointly, of $__________ aggregate principal amount of _____% Asset Backed Senior
Notes, Class A-1 (the "Class A-1 Senior Notes"), $__________ aggregate principal
amount of ____% Asset Backed Senior Notes, Class A-2 (the "Class A-2 Senior
Notes"), $__________ aggregate principal amount of ____% Asset Backed Senior
Notes, Class A-3 (the "Class A-3 Senior Notes") and $__________ aggregate
principal amount of ____% Asset Backed Senior Notes, Class A-4 (the "Class A-4
Senior Notes", and together with the Class A-1 Senior Notes, the Class A-2
Senior Notes and the Class A-3 Senior Notes, the "Senior Notes") of the BMW
Vehicle Lease Trust, Series 2000-A (the "Trust") under the terms and conditions
contained herein. The Transferor was formed pursuant to a limited liability
company agreement, dated as of August 4, 2000 (the "Transferor LLC Agreement"),
among BMW FS, as the primary member (in such capacity, the "Transferor Member"),
and BMW FS Receivables Corp., a Delaware corporation, as the second member. BMW
FS was formed pursuant to a limited liability
company agreement, dated as of May 1, 2000 (the "BMW FS LLC Agreement"), entered
into by BMW of North America, Inc., as sole member.
Simultaneously with the issuance of the Senior Notes, the Transferor will
cause the Trust to issue $__________ aggregate principal amount of ____% Asset
Backed Subordinated Notes (the "Subordinated Notes", and together with the
Senior Notes, the "Notes") and $__________ aggregate principal amount of ____%
Asset Backed Certificates (the "Certificates", and together with the Notes, the
"Securities"). The Senior Notes will be issued pursuant to an indenture to be
dated as of November 1, 2000 (the "Indenture") between the Trust and The Chase
Manhattan Bank, a New York banking corporation, as trustee (the "Indenture
Trustee"). The Subordinated Notes and the Certificates will be issued pursuant
to an amended and restated trust agreement, dated as of November 1, 2000 (the
"Trust Agreement"), between the Transferor and The Wilmington Trust Company, a
Delaware banking corporation, as trustee (the "Owner Trustee"). Each Note will
represent an obligation of, and each Certificate will represent an undivided
interest in, the Trust. The Transferor will retain the Subordinated Notes and a
Certificate (the "Transferor Certificate") with a principal amount equal to
approximately 1% of the initial Certificate principal balance. The Subordinated
Notes will be subordinated to the Senior Notes and the Certificates will be
subordinated to the Subordinated Notes, in each case to the extent described in
the Trust Agreement and the Indenture. Under an administration agreement, dated
as of November 1, 2000 (the "Trust Administration Agreement"), between BMW FS,
as administrator (in such capacity, the "Administrator"), and the Trust, the
Administrator will perform the Trust's administrative obligations under the
Trust Agreement and the Indenture.
Financial Services Vehicle Trust (the "Vehicle Trust") was created to take
assignments and conveyances of, and to hold in trust, various leases, vehicles
and certain related assets (collectively, the "Trust Assets"). The Vehicle
Trust was created and is governed by an amended and restated trust agreement,
dated as of September 27, 1996, as amended as of May 25, 2000 (the "Vehicle
Trust Agreement"), between BMW Manufacturing LP (the "UTI Beneficiary" or "BMW
LP"), an Indiana limited partnership, as grantor and initial beneficiary, and
Chase Manhattan Bank Delaware (predecessor in interest to Chase Manhattan Bank
USA, National Association, a national banking association), as trustee (the
"Vehicle Trustee").
The UTI Beneficiary was formed under the laws of Indiana pursuant to a
limited partnership agreement, dated February 12, 1996 (the "Partnership
Agreement"), between BMW Facility Partners, Inc., a Delaware corporation
(predecessor in interest to BMW Facility Partners, LLC ("BMW Facility
Partners"), a Delaware limited liability company), as the sole general partner
(the "BMW LP General Partner"), and BMW FS, as the sole limited partner. BMW
Facility Partners was formed pursuant to a limited liability company agreement,
dated as of December 22, 1999 entered into by BMW FS as sole member.
Pursuant to a supplement of the Vehicle Trust Agreement, dated as of
November 1, 2000 (the "SUBI Supplement", and together with the Vehicle Trust
Agreement, the "SUBI Trust Agreement"), among the parties to the Vehicle Trust
Agreement, the Vehicle Trustee will be directed by the UTI Beneficiary to
establish two special units of beneficial interest to be known as the "2000-A
Lease SUBI" and the "2000-A Vehicle SUBI" (each, a "2000-A SUBI"). The Vehicle
Trustee will allocate (i) a portfolio consisting of the lease agreements (the
"2000-A Leases") relating to certain specified vehicles (the "2000-A Vehicles")
and certain other related
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assets to the 2000-A Lease SUBI, and (ii) a portfolio consisting of the 2000-A
Vehicles and certain other related assets to the 2000-A Vehicle SUBI
(collectively, the "SUBI Assets"). The Trust Assets (including the SUBI Assets)
will be serviced by BMW FS (in such capacity, the "Servicer") pursuant to a
servicing agreement, dated as of August 30, 1995 (the "Basic Servicing
Agreement"), as supplemented by a 2000-A SUBI servicing supplement, dated as of
November 1, 2000 (the "SUBI Servicing Supplement" and, together with the Basic
Servicing Agreement, the "Servicing Agreement"), in each case among the Vehicle
Trust, the UTI Beneficiary and Servicer.
In connection with the creation of the 2000-A Lease SUBI, the Vehicle Trust
will issue to the UTI Beneficiary a certificate (the "Lease SUBI Certificate")
representing the entire beneficial interest in the 2000-A Lease SUBI and a
certificate (the "Vehicle SUBI Certificate", and together with the Lease SUBI
Certificate, the "SUBI Certificates") representing the entire beneficial
interest in the 2000-A Vehicle SUBI. Pursuant to a SUBI certificate transfer
agreement, dated as of _______ 1, 2000 (the "SUBI Certificate Transfer
Agreement"), between the Transferor and the UTI Beneficiary, the UTI Beneficiary
will sell the Vehicle SUBI Certificate and the Lease SUBI Certificate to the
Transferor. Pursuant to a SUBI certificate transfer agreement, dated as of
November 1, 2000 (the "Issuer SUBI Certificate Transfer Agreement"), between the
Transferor and the Trust, the Transferor will sell the Vehicle SUBI Certificate
to the Trust.
Pursuant to a program operating lease, dated as of November 1, 2000 (the
"Program Operating Lease"), between the Trust, as program lessor, and the
Transferor, as program lessee, the Trust will lease the Vehicle SUBI
Certificate, subject to the lien of the Indenture, to the Transferor in exchange
for the obligation of the Transferor to make certain payments during the period
that each 2000-A Vehicle is subject to the Program Operating Lease. To secure
payment by the Transferor under the Program Operating Lease, the Transferor will
grant a security interest to the Trust in all of its right, title and interest
in and to the Lease SUBI Certificate. The Trust in turn, will pledge its
interest in the Lease SUBI Certificate and payments under the Program Operating
Lease to the Indenture Trustee to secure payment on the Senior Notes. The Trust
will apply payments received from the Transferor under the Program Operating
Lease to pay interest on and principal of the Securities in accordance with
their respective terms.
The Indenture, the Trust Agreement, the Servicing Agreement, the SUBI Trust
Agreement, the SUBI Certificate Transfer Agreement, the Trust Administration
Agreement, the Issuer SUBI Certificate Transfer Agreement, the Program Operating
Lease, a backup security agreement, dated as of November 1, 2000 (the "Backup
Security Agreement"), among BMW FS, the Vehicle Trust, the UTI Beneficiary, the
Transferor, the Trust and the Indenture Trustee, and a control agreement, dated
as of November 1, 2000 (the "Control Agreement"), among the Transferor, the
Trust, as initial secured party, and The Chase Manhattan Bank, as assignee-
secured party and securities intermediary (in such capacity, the "Securities
Intermediary"), are referred to herein collectively as the "Basic Documents".
Capitalized terms used herein that are not otherwise defined shall have the
meanings ascribed thereto in the SUBI Trust Agreement, the Indenture or in
Section 17, as the case may be.
The Transferor and BMW FS understand that the Underwriters propose to make
a public offering of the Senior Notes as soon as the Representative deems
advisable after this Agreement
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has been executed and delivered and the Indenture has been qualified under the
Trust Indenture Act. The Certificates, other than the Transferor Certificate,
are being offered privately and are being purchased pursuant to a purchase
agreement, dated on or about the date hereof (the "Purchase Agreement"), among
the Transferor, BMW FS and ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. as the initial purchaser.
Section 1. Representations and Warranties.
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(a) Representations and Warranties by the Transferor and BMW FS. Each of
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the Transferor and BMW FS jointly and severally represents and warrants to, and
agrees with, each Underwriter as follows:
(i) Compliance with Registration Requirements. The Transferor has
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prepared and filed with the Commission a registration statement on Form S-1
(No. 333-43128), including a related preliminary prospectus, for
registration under the Act of the offering and sale of the Senior Notes.
The Transferor has filed one or more amendments thereto, including a
related preliminary prospectus, each of which has previously been furnished
to the Representative. The Transferor will next file with the Commission
either (A) prior to the Effective Date, a further amendment to such
registration statement (including the form of final prospectus) or (B)
after the Effective Date of such registration statement, a final prospectus
in accordance with Rules 430A and 424(b). In the case of clause (B), the
Transferor has included in such registration statement, as amended at the
Effective Date, all information (other than Rule 430A Information) required
by the Act and the rules thereunder to be included in such registration
statement and the Prospectus. As filed, such amendment and form of final
prospectus, or such final prospectus, shall contain all Rule 430A
Information, together with all other such required information, and, except
to the extent the Representative shall agree in writing to a modification,
shall be in all substantive respects in the form furnished to the
Representative prior to the Execution Time or, to the extent not completed
at the Execution Time, shall contain only such specific additional
information and other changes (beyond that contained in the latest
Preliminary Prospectus) as the Transferor has advised the Representative,
prior to the Execution Time, will be included or made therein.
On the Effective Date, the Registration Statement did or will, and
when the Prospectus is first filed (if required) in accordance with Rule
424(b) and on the Closing Date, the Prospectus (and any supplements
thereto) will, comply in all material respects with the applicable
requirements of the Act and the Trust Indenture Act and the respective
rules thereunder; on the Effective Date and at the Execution Time, the
Registration Statement did not or will not contain any untrue statement of
material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein not
misleading; on the Effective Date and on the Closing Date, the Indenture
did or will comply in all material respects with the applicable
requirements of the Trust Indenture Act and the rules thereunder; and, on
the Effective Date, the Prospectus, if not filed pursuant to Rule 424(b),
will not, and on the date of any filing pursuant to Rule 424(b) and on the
Closing Date, the Prospectus (together with any supplement thereto) will
not, include any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the
light of the
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circumstances under which they were made, not misleading; provided,
however, that no representation or warranty is made as to the information
contained in or omitted from the Registration Statement, or the Prospectus
(or any supplement thereto) in reliance upon and in conformity with
information furnished in writing to the Transferor by or on behalf of any
Underwriter through the Representative specifically for inclusion in the
Registration Statement or the Prospectus (or any supplement thereto).
(ii) Enforceability of the Indenture. The Indenture has been duly
-------------------------------
authorized and duly qualified under the Trust Indenture Act and, when duly
executed and delivered by the Trust and the Indenture Trustee, will
constitute a valid and binding agreement of the Trust, enforceable against
the Trust in accordance with its terms, except as the enforcement thereof
may be limited by bankruptcy, insolvency, moratorium, reorganization or
other similar laws affecting enforcement of creditors' rights generally and
by general principles of equity (regardless of whether such enforceability
is considered in a proceeding in equity or at law).
(iii) Issuance of the Senior Notes. The Senior Notes have been duly
-----------------------------
authorized and, at the Closing Date, will have been duly executed by the
Trust and, when authenticated, issued and delivered in the manner provided
for in the Indenture and delivered against payment of the purchase price
therefor as provided in this Agreement, will constitute valid and binding
obligations of the Trust, enforceable against the Trust in accordance with
their terms, except as the enforcement may be limited by bankruptcy,
insolvency, moratorium, reorganization or other similar laws affecting
enforcement of creditors' rights generally and by general principles of
equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law) and will be in the form contemplated by,
and entitled to the benefits of, the Indenture and the Trust Agreement.
(iv) Issuance of Certificates and Subordinated Notes. The
-----------------------------------------------
Certificates and Subordinated Notes have been duly authorized and, at the
Closing Date, will have been duly executed and, when authenticated, issued
and delivered in the manner provided for in the Trust Agreement and
delivered against payment of the purchase price therefor as provided in the
Purchase Agreement, will constitute valid and binding obligations of the
Trust, enforceable against the Trust in accordance with their terms, except
as the enforcement thereof may be limited by bankruptcy, insolvency,
moratorium, reorganization or similar laws or affecting enforcement of
creditors' rights generally and except as enforcement thereof is subject to
general principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law), and will be in the form
contemplated by, and entitled to the benefits of, the Trust Agreement.
(v) Description of Securities and Basic Documents. The Securities
---------------------------------------------
and each of the Basic Documents conform in all material respects to the
descriptions thereof and the statements relating thereto contained in the
Prospectus and will be in substantially the respective forms filed as
exhibits to the Registration Statement.
(vi) SUBI Certificates. The SUBI Certificates conform in all
-----------------
material respects to the descriptions thereof and the statements relating
thereto contained in the Prospectus; and the SUBI Certificates have been
duly and validly authorized and, when executed,
5
issued, authenticated and delivered in accordance with the SUBI Trust
Agreement, will be duly and validly issued and outstanding and entitled to
the benefits of the SUBI Trust Agreement.
(vii) Absence of Further Requirements. No authorization, approval or
-------------------------------
consent of any court, governmental authority or agency or any other person
is necessary in connection with (A) the issuance of the SUBI Certificates,
(B) the issuance of the Securities or the offering and sale of the Senior
Notes and Certificates, (C) the execution, delivery and performance by the
Transferor of this Agreement or any Basic Document to which it is a party
or (D) the consummation by the Transferor of the transactions contemplated
hereby or thereby, except such authorizations, approvals or consents as
have been obtained and are in full force and effect as of the Closing Date.
(viii) No Investment Company Act Registration. None of the
--------------------------------------
Transferor, BMW FS, the UTI Beneficiary, the Vehicle Trust or the Trust is
now or, as a result of the transactions contemplated by this Agreement,
will be, an "investment company" under the Investment Company Act of 1940,
as amended.
(ix) Allocation of SUBI Assets. At or prior to the Closing Date,
-------------------------
the Vehicle Trustee will have allocated 2000-A Leases and 2000-A Vehicles
as SUBI Assets that have an Aggregate Cutoff Date Securitization Value
equal to $1,547,538,089 and each of the 2000-A Leases and 2000-A Vehicles
allocated as a SUBI Asset at the Closing Date will meet the eligibility
criteria for selection described in the SUBI Trust Agreement.
(x) Use of Proceeds. The Transferor will cause the Trust to use
---------------
the net proceeds of the Senior Notes as described in the Prospectus under
the caption "Use of Proceeds".
(xi) Accuracy of Exhibits. There are no contracts or documents
--------------------
which are required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits thereto which have not been so
described and filed as required.
(b) Representations and Warranties of the Transferor and the Transferor
Member. Each of the Transferor and BMW FS, in its capacity as Transferor Member,
jointly and severally represents and warrants to, and agrees with, each
Underwriter as follows:
(i) Due Organization. The Transferor has been duly formed and is
----------------
validly existing as a limited liability company under the Delaware Limited
Liability Company Act, 6 Del. C. (S)(S) 18-101 et seq. (the "Delaware LLC
Act"), and all filings required at the date hereof under the Delaware LLC
Act with respect to the due formation and valid existence of the Transferor
as a limited liability company have been made. The Transferor is in good
standing and has a legal existence under the laws of the State of Delaware
with power and authority to own, lease and operate its properties and to
conduct its business as described in the Prospectus and to enter into and
to perform its obligations under this Agreement and each Basic Document to
which it is a party or by which it may be bound and the Securities. The
Transferor is duly qualified as a foreign limited liability company to
transact business and is in good standing in each jurisdiction
6
in which such qualification is required, whether by reason of the ownership
or leasing of property or the conduct of business, except where the failure
to so qualify would not have a Material Adverse Effect on it.
(ii) Transferor Member Interests. BMW FS is the sole member of the
---------------------------
Transferor and, on the Closing Date, BMW FS will own its 100% membership
interest in the Transferor free and clear of any lien, mortgage, pledge,
charge, encumbrance, adverse claim or other security interest
(collectively, "Liens") except as permitted by the Basic Documents. The
Transferor Member's ownership interest in the Transferor is nontransferable
to the extent provided in the Transferor LLC Agreement.
(iii) No Material Adverse Change. Since the respective dates as of
--------------------------
which information is given in the Registration Statement and the
Prospectus, except as otherwise set forth therein, (A) there has been no
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Transferor whether
or not arising in the ordinary course of business and (B) there have been
no transactions entered into by the Transferor, other than those in the
ordinary course of business, which are material with respect to such
entity.
(iv) Absence of Defaults and Conflicts. The Transferor is not in
---------------------------------
violation of the Transferor LLC Agreement or in default in the performance
or observance of any obligation, agreement, covenant or condition contained
in any contract, indenture, mortgage, loan agreement, note, lease or other
instrument to which it is a party or by which it may be bound, or to which
any of its properties or assets is subject, except for violations or
defaults that, individually or in the aggregate, have not had, and are not
reasonably expected to have, a Material Adverse Effect on it; the
execution, delivery and performance by the Transferor of this Agreement,
each Basic Document to which it is a party and the Securities, the
consummation of the transactions contemplated herein and therein or in the
Prospectus and compliance with its obligations hereunder and thereunder
have been duly and validly authorized by all necessary action (corporate or
otherwise) and will not conflict with or constitute a breach of, a default
under, or result in the creation or imposition of any Lien (except as
permitted by the Basic Documents) upon any of its property or assets
pursuant to any contract, indenture, mortgage, loan agreement, note, lease
or other instrument to which it may be a party, by which it may be bound or
to which any of its properties or assets is subject, except for conflicts,
breaches, defaults or Liens that, individually or in the aggregate, will
not have a Material Adverse Effect on it, nor will such action result in
any violation of the provisions of the Transferor LLC Agreement, or any
applicable law, administrative regulation or administrative or court
decree.
(v) Absence of Proceedings. There is no action, suit or proceeding
----------------------
before or by any court or governmental agency or body, domestic or foreign,
now pending or, to the knowledge of the Transferor or the Transferor
Member, threatened, against or affecting the Transferor that is required to
be disclosed in the Prospectus and that is not disclosed or that might
reasonably be expected to have a Material Adverse Effect on the Transferor
or that might reasonably be expected to materially and adversely affect its
collective properties or assets or that might reasonably be expected to
materially and
7
adversely affect the consummation of the Transferor LLC Agreement; all
pending legal or governmental proceedings to which the Transferor is a
party or of which any of its properties or assets is the subject that are
not described in the Prospectus, including ordinary routine litigation
incidental to their respective businesses, are, considered in the
aggregate, not material.
(vi) Possession of Licenses and Permits. The Transferor possesses
----------------------------------
all material certificates, authorities, licenses and permits issued by the
appropriate state, federal or foreign regulatory agencies or bodies as are
necessary to conduct the business now operated by it; all such
certificates, authorities, licenses and permits are valid and in full force
and effect except where such invalidity or failure to be in full force and
effect does not have a Material Adverse Effect on the Transferor; and
neither the Transferor nor the Transferor Member has received notice of any
proceedings relating to the revocation or modification of any such
certificate, authority, license or permit which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or finding,
would have a Material Adverse Effect.
(vii) Authorization of this Agreement. This Agreement has been duly
--------------------------------
authorized, executed and delivered by the Transferor.
(viii) Enforceability of Basic Documents. Each of the Basic Documents
---------------------------------
to which the Transferor is a party and the Transferor LLC Agreement has
been duly executed and delivered by the Transferor, and, assuming the due
authorization, execution and delivery thereof by the other parties thereto,
will constitute the legal, valid and binding agreement of the Transferor,
enforceable in accordance with its terms, except as the enforceability
thereof may be limited by bankruptcy, insolvency, moratorium,
reorganization or other similar laws affecting enforcement of creditors'
rights generally and by general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at law).
(ix) Incorporation of Representations and Warranties. The
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representations and warranties of the Transferor in each of the Basic
Documents to which it is a party are true and correct in all material
respects and are hereby restated and incorporated by reference herein with
the same effect as if set forth in full herein.
(c) Representations and Warranties of BMW FS, the UTI Beneficiary and the
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Vehicle Trust. BMW FS, on its own behalf and on behalf of BMW, the UTI
-------------
Beneficiary, the Vehicle Trust and the Trust, each to the extent indicated
below, represents and warrants to, and agrees with, each Underwriter as follows:
(i) Due Organization of BMW FS. BMW FS has been duly formed and is
--------------------------
validly existing as a limited liability company under the Delaware LLC Act,
and all filings required at the date hereof under the Delaware LLC Act with
respect to the due formation and valid existence of BMW FS and as a limited
liability company have been made. BMW FS is in good standing and has a
legal existence under the laws of the State of Delaware with power and
authority to own, lease and operate its properties and to conduct its
business as described in the Prospectus and to enter into and to perform
its
8
obligations under this Agreement and each Basic Document to which it is a
party or by which it may be bound. BMW FS is duly qualified as a foreign
limited liability company to transact business and is in good standing in
each jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of business,
except where the failure to so qualify would not have a Material Adverse
Effect on it.
(ii) Due Organization of the UTI Beneficiary. The UTI Beneficiary
---------------------------------------
has been duly formed and is validly existing as a limited partnership under
the Indiana Uniform Partnership Act, Ind. C. (S)(S) 23-4-1-1 et seq. (the
"Indiana Partnership Act"), and all filings required at the date hereof
under the Indiana Partnership Act with respect to the due formation and
valid existence of the UTI Beneficiary as a limited partnership have been
made; and the UTI Beneficiary has all requisite power and authority to own,
lease and operate its properties and to conduct its business as described
in the Prospectus and the Partnership Agreement and to enter into and to
perform its obligations under the Partnership Agreement and each Basic
Document to which it is a party or by which it may be bound. The UTI
Beneficiary is duly qualified or registered as a foreign partnership to
transact business and is in good standing in each jurisdiction in which
such qualification or registration is required, whether by reason of the
ownership of property or the conduct of business, except where the failure
to so qualify or register would not have a Material Adverse Effect on it.
(iii) Due Organization of Vehicle Trust. The Vehicle Trust has been
---------------------------------
qualified as a business trust under the Delaware Business Trust Act (12
Del. C. (S)3801, et seq.) (the "DBT Act") and all filings required at the
date hereof under the DBT Act with respect to the due formation and valid
existence of the Vehicle Trust as a business trust have been made; and the
Vehicle Trust has all requisite power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus and to enter into and to perform its obligations under the each
Basic Document to which it is a party or by which it may be bound. All
filings required to be made in respect of the Vehicle Trust's status as a
business trust under the laws of each state in which such filings are
required have been made and are in full force and effect at the Closing
Date, except where the failure to so file or to have in full force and
effect would not have a Material Adverse Effect on it.
(iv) No Material Adverse Change. Since the respective dates as of
--------------------------
which information is given in the Prospectus, except as otherwise set forth
therein, (A) there has been no material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business
prospects of BMW FS, the UTI Beneficiary or the Vehicle Trust, whether or
not arising in the ordinary course of business and (B) there have been no
transactions entered into by any of BMW FS, the UTI Beneficiary or the
Vehicle Trust other than those in the ordinary course of business, which
are material.
(v) Absence of Defaults and Conflicts. Neither BMW FS nor the UTI
---------------------------------
Beneficiary is in violation of its organizational or charter documents,
bylaws, limited liability agreement, a partnership agreement, as the case
may be, or in default in the performance or observance of any obligation,
agreement, covenant or condition contained
9
in any contract, indenture, mortgage, loan agreement, note, lease or other
instrument to which it is a party or by which it may be bound, or to which
any of its properties or assets is subject, except for violations or
defaults that, individually or in the aggregate, have not had, and are not
reasonably expected to have, a Material Adverse Effect on it; the
execution, delivery and performance by each of BMW FS and the UTI
Beneficiary, as the case may be, of this Agreement, the BMW FS LLC
Agreement, the Partnership Agreement and each Basic Document to which it is
a party and the consummation of the transactions contemplated herein and
therein and compliance by each of them with its obligations hereunder and
thereunder have been duly and validly authorized by all necessary action
(corporate or otherwise) and will not conflict with or constitute a breach
of, or default under or result in the creation or imposition of any Lien
(except as permitted by the Basic Documents) upon any of its property or
assets pursuant to, any contract, indenture, mortgage, loan agreement,
note, lease or other instrument to which it is a party or by which it may
be bound, or to which any of its properties or assets is subject, except
for conflicts, breaches, defaults or Liens that, individually or in the
aggregate, will not have a Material Adverse Effect on it, nor will such
action result in any violation of the provisions of the entity's charter or
organizational documents, bylaws, limited liability agreement, a
partnership agreement, as the case may be, or any applicable law,
administrative regulation or administrative or court decree.
(vi) Absence of Proceedings. There is no action, suit or proceeding
----------------------
before or by any court or governmental agency or body, domestic or foreign,
now pending, or, to the knowledge of BMW FS, threatened, against or
affecting any of BMW FS, the UTI Beneficiary or the Vehicle Trust that is
required to be disclosed in the Prospectus and that is not disclosed or
that might reasonably be expected to have a Material Adverse Effect on any
such entity or that might reasonably be expected to materially and
adversely affect its properties or assets or that might reasonably be
expected to materially and adversely affect the consummation of the
transactions contemplated by this Agreement, the BMW FS LLC Agreement, the
Partnership Agreement or any Basic Document to which any such entity is a
party; and all pending legal or governmental proceedings to which any of
BMW FS, the UTI Beneficiary or the Vehicle Trust is a party or of which any
of their respective properties or assets is the subject that are not
described in the Prospectus, including ordinary routine litigation
incidental to their respective businesses, are, considered in the
aggregate, not material.
(vii) Absence of Further Requirements. No authorization, approval or
-------------------------------
consent of any court, governmental authority or agency or any other person
is necessary in connection with the execution, delivery and performance by
BMW FS, the UTI Beneficiary or the Vehicle Trust of this Agreement or any
Basic Document to which any of them is a party or the consummation by any
of them of the transactions contemplated hereby or thereby, except such
authorizations, approvals or consents as will have been obtained and are in
full force and effect as of the Closing Date.
(viii) Possession of Licenses and Permits. Each of BMW FS, the UTI
----------------------------------
Beneficiary and the Vehicle Trust possesses all material certificates,
authorities, licenses and permits issued by the appropriate state, federal
or foreign regulatory agencies or bodies as are necessary to conduct the
business now operated by it; all such certificates,
10
authorities, licenses and permits are valid and in full force and effect
except where such invalidity or failure to be in full force and effect does
not have a Material Adverse Effect on it; and none of such entities has
received notice of any proceedings relating to the revocation or
modification of any such certificate, authority, license or permit which,
singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would have a Material Adverse Effect on it.
(ix) Authorization of this Agreement. This Agreement has been duly
-------------------------------
authorized, executed and delivered by BMW FS.
(x) Enforceability of Basic Documents. As of the Closing Date,
---------------------------------
each Basic Document to which any of BMW FS, the UTI Beneficiary or the
Vehicle Trust is a party, the BMW FS LLC Agreement and the Partnership
Agreement has been duly executed and delivered by BMW FS, the UTI
Beneficiary or the Vehicle Trust, as the case may be, and, assuming the due
authorization, execution and delivery thereof by the other parties thereto,
will constitute the legal, valid and binding agreement of such entity, as
the case may be, enforceable against such entity in accordance with its
terms, except as the enforceability thereof may be limited by bankruptcy,
insolvency, moratorium, reorganization or other similar laws affecting
enforcement of creditors' rights generally and by general principles of
equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law).
(xi) Title to SUBI Assets. At the time of execution and delivery of
--------------------
the SUBI Supplement on the Closing Date, the Vehicle Trust, will own the
2000-A Leases and hold marketable title to the 2000-A Vehicles, together
with other rights relating to the 2000-A Vehicles and 2000-A Leases, being
allocated as SUBI Assets, in each case free and clear of any Liens (except
as permitted by the Basic Documents).
(xii) Absence of Assignment of SUBI Assets. As of the Closing Date,
------------------------------------
the Vehicle Trust has not assigned to any person any of its right, title or
interest in any of the 2000-A Leases, related contract rights, 2000-A
Vehicles or other related rights constituting the SUBI Assets, or has
obtained the release of each such prior assignment.
(xiii) Incorporation of Representations and Warranties. The
-----------------------------------------------
representations and warranties of each of BMW FS, the UTI Beneficiary and
the Vehicle Trust in each of the Basic Documents to which it is a party are
true and correct in all material respects and are hereby restated and
incorporated by reference herein with the same effect as if set forth in
full herein.
(d) Officer's Certificates. Any certificate signed by any officer
----------------------
of the Transferor, BMW FS, the UTI Beneficiary, the Vehicle Trust or any of
their respective Affiliates and delivered to the Representative or to
counsel for the Underwriters in connection with the issuance of the
Securities or the offering of the Senior Notes or the Certificates shall be
deemed a representation and warranty by the Transferor, BMW FS, the UTI
Beneficiary, the Vehicle Trust or such Affiliate, as the case may be, as to
the matters covered thereby, to each Underwriter.
11
Section 2. Purchase, Sale and Delivery of the Senior Notes.
-----------------------------------------------
(a) Purchase and Sale. Subject to the terms and conditions and in
-----------------
reliance upon the representations and warranties herein set forth, the
Transferor agrees to sell to each Underwriter, and each Underwriter agrees,
severally and not jointly, to purchase from the Transferor, the aggregate
principal amount of each class of Senior Notes set forth in Schedule I opposite
the name of such Underwriter (plus any additional principal amount of Senior
Notes which such Underwriter may become obligated to purchase pursuant to the
provisions of Section 9) at a purchase price equal to the following percentages
of the aggregate initial principal balances thereof, in the case of (i) the
Class A-1 Senior Notes, ________%, (ii) the Class A-2 Senior Notes, ________%,
(iii) the Class A-3 Senior Notes, ________% and (iv) the Class A-4 Senior Notes,
________%.
(b) Payment and Delivery. Delivery of and payment of the purchase price
--------------------
for the Senior Notes shall be made at the offices of Weil, Gotshal & ▇▇▇▇▇▇ LLP,
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ at 10:00 A.M., New York City time, on
November __, 2000, or at such other time on such later date not more than three
Business Days after the foregoing date as the Representative shall designate,
which date and time may be postponed by agreement among the Representative, the
Transferor and BMW FS or as provided in Section 9 (such date and time of
delivery and payment being called the "Closing Date"). Pursuant to Rule 15c6-
1(d) under the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
the Transferor, BMW FS and the Representative have agreed that the Closing Date
will be not less than five Business Days following the date hereof.
(c) Delivery of the Senior Notes shall be made to the Representative for
the respective accounts of the several Underwriters against payment by the
several Underwriters through the Representative of the purchase price thereof to
or upon the order of the Transferor by wire transfer payable in same-day funds
to an account specified by the Transferor. Delivery of the Senior Notes shall be
made through the facilities of The Depository Trust Company unless the
Representative shall otherwise instruct. Certificates for the Senior Notes shall
be made available for examination and packaging by the Underwriters in The City
of New York not later than 10:00 A.M., New York City time, on the last Business
Day prior to the Closing Date.
Section 3. Offering by Underwriters. It is understood that the several
------------------------
Underwriters propose to offer the Senior Notes for sale to the public as set
forth in the Prospectus.
Section 4. Covenants of the Transferor and BMW FS. The Transferor and BMW
--------------------------------------
FS jointly and severally covenant with each Underwriter as follows:
(a) Compliance with Securities Laws; Filing of Amendments. The
-----------------------------------------------------
Transferor will use its best efforts to cause the Registration Statement,
if not effective at the Execution Time, and any amendment thereof, to
become effective. Prior to the termination of the offering of the Senior
Notes, the Transferor will not file any amendment of the Registration
Statement or supplement to the Prospectus unless the Transferor has
furnished the Representative a copy for review prior to filing and will not
file any such proposed amendment or supplement to which the Representative
shall reasonably object. Subject to the foregoing sentence, if the
Registration Statement has
12
become or becomes effective pursuant to Rule 430A, or filing of the
Prospectus is otherwise required under Rule 424(b), the Transferor will
cause the Prospectus, properly completed, and any supplement thereto to be
filed with the Commission pursuant to the applicable paragraph of Rule
424(b) within the time period prescribed and will provide evidence
satisfactory to the Representative of such timely filing. The Transferor
will promptly advise the Representative (i) when the Registration
Statement, if not effective at the Execution Time, shall have become
effective, (ii) when the Prospectus, and any supplement thereto, shall have
been filed (if required) with the Commission pursuant to Rule 424(b), (iii)
when, prior to termination of the offering of the Senior Notes, any
amendment to the Registration Statement shall have been filed or become
effective, (iv) of any request by the Commission or its staff for any
amendment of the Registration Statement, or for any supplement to the
Prospectus or for any additional information, (v) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any proceeding
for that purpose and (vi) of the receipt by the Transferor of any
notification with respect to the suspension of the qualification of the
Senior Notes for sale in any jurisdiction or the institution or threatening
of any proceeding for such purpose. The Transferor will use its best
efforts to prevent the issuance of any such stop order or the suspension of
any such qualification and, if issued, to obtain as soon as possible the
withdrawal thereof.
(b) Continued Compliance with Securities Laws. If, at any time when a
-----------------------------------------
prospectus relating to the Senior Notes is required to be delivered under
the Act, any event occurs as a result of which the Prospectus as then
supplemented would include any 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 if it shall be necessary to amend the Registration Statement
or supplement the Prospectus to comply with the Act or the rules
thereunder, the Transferor promptly will (i) notify the Representative of
any such event, (ii) prepare and file with the Commission, subject to the
second sentence of paragraph (a) of this Section, an amendment or
supplement which will correct such statement or omission or effect such
compliance and (iii) supply any supplemented Prospectus to the Underwriters
in such quantities as the Representative may reasonably request.
(c) Rule 158. As soon as practicable, the Transferor will make
--------
generally available to the holders of the Senior Notes and to the
Representative an earnings statement of the Transferor which will satisfy
the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) Delivery of Registration Statements and Prospectuses. The
----------------------------------------------------
Transferor will deliver to the Representative and counsel for the
Underwriters, without charge, (i) signed copies of the Registration
Statement as originally filed and of each amendment thereto (including
exhibits thereto), (ii) a conformed copy of the Registration Statement as
originally filed and of each amendment thereto (without exhibits) for each
of the Underwriters and, so long as delivery of a prospectus by an
Underwriter or dealer may be required by the Act, as many copies of each
Preliminary Prospectus and the Prospectus and any supplement thereto as the
Representative may reasonably request. The Transferor will pay the expenses
of printing or other production of all documents relating
13
to the offering. The copies of the Registration Statement, the Prospectus
and each amendment or supplement thereto furnished to the Underwriters will
be identical to the electronically transmitted copies thereof filed with
the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by
Regulation S-T.
(e) Blue Sky Qualifications. The Transferor will arrange, if
-----------------------
necessary, for the qualification of the Senior Notes for sale under the
laws of such jurisdictions as the Representative may designate, will
maintain such qualifications in effect so long as required for the
distribution of the Senior Notes and, in any event, for a period of not
less than a year from the Effective Date; provided that neither the
Transferor nor BMW FS shall be obligated to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action that
would subject it to service of process in suits, other than those arising
out of the offering or sale of the Senior Notes, in any jurisdiction where
it is not now so subject. In each jurisdiction in which the Senior Notes
have been so qualified, the Transferor will file such statements and
reports as may be required by the laws of such jurisdiction to continue
such qualification in effect for a period of not less than one year from
the Effective Date. The Transferor will also supply the Underwriters with
such information as is necessary for the determination of the legality of
the offering and sale of the Senior Notes for investment under the laws of
such jurisdictions as the Underwriters may reasonably request.
(f) Rating of Senior Notes and Certificates. The Transferor shall take
---------------------------------------
all reasonable action necessary to enable ▇▇▇▇▇'▇ Investors Service, Inc.
and Standard and Poor's Ratings Group, a Division of The ▇▇▇▇▇▇-▇▇▇▇
Companies, Inc. (the "Rating Agencies") to provide the Class A-1 Senior
Notes with the highest short-term rating, the remaining classes of Senior
Notes with the highest long-term rating and the Certificates with at least
an "A" rating or its equivalent at the Closing Date.
(g) Use of Proceeds. The Transferor shall cause the Trust to use the
---------------
net proceeds received by it from the sale of the Senior Notes in the manner
specified in the Prospectus under "Use of Proceeds".
(h) Restriction on Sale of Senior Notes. For a period of 60 days from
-----------------------------------
the date hereof, none of the Transferor, BMW FS or any of their respective
Affiliates will, without the prior written consent of the Representative,
directly or indirectly, offer, sell or contract to sell or announce the
offering of, in a public or private transaction, any other collateralized
securities similar to the Senior Notes or the Certificates.
(i) Reporting Requirements. The Transferor will file with the
----------------------
Commission such reports on Form SR as may be required pursuant to Rule 463
under the Act and, during the period when the Prospectus is required to be
delivered under the Act, will file all documents required to be filed with
the Commission pursuant to the Exchange Act within the time periods
required by the Exchange Act.
(j) Reports, Statements and Certificates. So long as any Senior Notes
------------------------------------
are outstanding, the Transferor or BMW FS, as the case may be, will deliver
or cause to be delivered to the Representative, as soon as copies become
available, copies of (i) each
14
payment date certificate delivered to the Indenture Trustee pursuant to
Section [8.03] of the Indenture, (ii) the annual report as to compliance by
a firm of independent public accountants delivered pursuant to Section 2.11
of the SUBI Servicing Supplement, (iii) the officer's certificate delivered
by the Servicer pursuant to Section 2.12 of the SUBI Servicing Supplement,
(iv) each periodic report required to be filed by the Transferor with the
Commission pursuant to the Exchange Act, or any order of the Commission
thereunder, and (v) such other information with respect to the Securities
concerning the Transferor, BMW FS, BMW LP General Partner, the UTI
Beneficiary, the Vehicle Trust or the Trust as the Representative may
reasonably request from time to time.
Section 5. Payment of Expenses. The Transferor shall pay all of its own
-------------------
expenses incident to the performance of its obligations under this Agreement,
including without limitation (i) the preparation, printing and filing of the
Registration Statement (including exhibits thereto) as originally filed and of
each amendment thereto, (ii) the preparation, reproduction and delivery to the
Underwriters of this Agreement, any Agreement among Underwriters, each Basic
Document and such other documents as may be required in connection with the
issuance of the Securities or the offering, purchase, sale or delivery of the
Senior Notes and the Certificates, (iii) the preparation, issuance and delivery
of the certificates for the Senior Notes to the Underwriters, (iv) the fees and
expenses of the counsel, accountants and other advisors of the Transferor, BMW
FS, the UTI Beneficiary and their respective Affiliates in connection with the
transactions contemplated by this Agreement and the Purchase Agreement, (v) the
qualification of the Senior Notes under state securities laws in accordance with
the provisions of Section 4(e), including filing fees and the reasonable fees
and disbursements of counsel for the Underwriters in connection therewith, (vi)
the fees and expenses of the Vehicle Trustee, the Owner Trustee, the Indenture
Trustee and the Administrator, including the reasonable fees and disbursements
of their respective counsel, in connection with the transactions contemplated by
this Agreement and the Purchase Agreement and (vii) any fees payable to the
Rating Agencies in connection with the rating of the Senior Notes and the
Certificates.
Section 6. Conditions of the Obligations of the Underwriters. The
-------------------------------------------------
obligations of the several Underwriters to purchase the Senior Notes shall be
subject to the accuracy of the representations and warranties on the part of the
Transferor and BMW FS contained herein as of the Execution Time and the Closing
Date, to the accuracy of the statements of the Transferor, BMW FS and the
respective Affiliates made in any certificates pursuant to the provisions
hereof, to the performance by the Transferor and BMW FS of their respective
obligations hereunder and to the following additional conditions:
(a) Effectiveness of Registration Statement. If the Registration
---------------------------------------
Statement has not become effective prior to the Execution Time, unless the
Representative agrees in writing to a later time, the Registration
Statement will become effective not later than (i) 6:00 P.M., New York City
time, on the date of determination of the public offering price, if such
determination occurred at or prior to 3:00 P.M., New York City time, on
such date or (ii) 9:30 A.M., New York City time, on the Business Day
following the day on which the public offering price was determined, if
such determination occurred after 3:00 P.M., New York City time, on such
date; if filing of the Prospectus, or any supplement thereto, is required
pursuant to Rule 424(b), the Prospectus, and any such supplement, will be
15
filed in the manner and within the time period required by Rule 424(b); and
no stop order suspending the effectiveness of the Registration Statement
shall have been issued and no proceedings for that purpose shall have been
instituted or threatened.
(b) Accountants' Comfort Letter. On the Closing Date, the
---------------------------
Representative, BMW FS and the Transferor shall have received from KPMG
Peat Marwick LLP a letter or letters dated the Closing Date, in form and
substance as previously agreed to by the Representative and otherwise
satisfactory in form and substance to the Representative confirming that
they are independent accountants within the meaning of the Act and the
application rules and regulations adopted by the Commission thereunder and
containing statements and information of the type ordinarily included in
accountants' "comfort letters", with respect to certain financial,
statistical and other information contained in the Prospectus.
(c) Officers' Certificates. Each of the Transferor, BMW FS and the
----------------------
UTI Beneficiary shall have furnished to the Representative a certificate of
each of the Transferor and BMW FS, signed by its Chairman of the Board,
President, any Vice President, the Treasurer, any Assistant Treasurer, the
principal financial officer, the principal accounting officer or any of the
foregoing officers of its general partner, as applicable, dated the Closing
Date, to the effect that the signer of such certificate have carefully
examined the Registration Statement, the Prospectus, any supplements to the
Prospectus and this Agreement and that to the best of his knowledge after
reasonable investigation, (i) since the date of the Prospectus (exclusive
of any supplement thereto), there has been no event that has had a Material
Adverse Effect on the Transferor, BMW FS or the UTI Beneficiary, whether or
not arising from transactions in the ordinary course of business, except as
set forth in or contemplated in the Prospectus (exclusive of any supplement
thereto), (ii) the representations and warranties of the Transferor and BMW
FS and the UTI Beneficiary, as the case may be, in this Agreement and the
Basic Documents to which it is a party, are true and correct, (iii) the
Transferor, BMW FS and the UTI Beneficiary, as the case may be, has
complied with the agreements and satisfied the conditions on its part to be
performed or satisfied at or prior to the Closing Date and (iv) in the case
of the Transferor and BMW FS only, no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or are pending or are
contemplated by the Commission (or, if a stop order has been issued, such
order has been subsequently lifted).
(d) Opinion of In-House Counsel. On the Closing Date, the
---------------------------
Representative shall have received the favorable opinion of ▇▇▇▇▇ ▇▇▇▇▇▇▇,
Esq., in-house counsel to the Transferor and BMW FS, dated the Closing Date
and in form and substance satisfactory to the Representatives to the effect
that:
(i) Each of the Transferor and BMW FS is a Delaware limited
liability company organized under the Delaware LLC Act, is current in
the payment of fees due to the Delaware Department of State and is in
good standing and has a legal existence; the Transferor has power and
authority to carry on its business as described in the Prospectus and
to enter into and perform its obligations under this Agreement and each
Basic Document to which it is a party and is duly qualified
16
as a foreign limited liability company to transact business and is in
good standing in each jurisdiction where the failure to qualify would
have a Material Adverse Effect on it.
(ii) None of (A) the execution and delivery of this Agreement,
the Purchase Agreement or any Basic Document to which it is a party,
(B) the issuance of the Securities and sale of the Senior Notes and the
Certificates, (C) the consummation of any other transactions
contemplated hereby or thereby or (D) the fulfillment of the terms
hereof or thereof will conflict with, result in a breach of or
constitute a default under, or with the giving of notice or the passage
of time or both, would constitute a default under or result in the
creation or imposition of any Lien (except as permitted by the Basic
Documents), charge or encumbrance upon any property or assets of the
Transferor, BMW FS or the UTI Beneficiary pursuant to (1) the
Transferor LLC Agreement, the BMW FS LLC Agreement or the Partnership
Agreement, as the case may be, (2) the terms of any indenture,
contract, lease, mortgage, deed of trust, note agreement, loan
agreement or other agreement, obligation, condition, covenant or
instrument known to such counsel to which such entity is a party or
bound or to which its or their property is subject or (3) any statute,
law, rule, regulation, judgment, order or decree known to such counsel
to be applicable to such entity of any court, regulatory body,
administrative agency, governmental body, arbitrator or other authority
having jurisdiction over such entity or any of its properties.
(iii) No consent, approval, authorization, filing with or order of
any court or governmental agency or body is required in connection with
the transactions contemplated hereby, by the Purchase Agreement or the
Basic Documents to which the Transferor, BMW FS or the UTI Beneficiary
is a party, except such as have been obtained under the Act and such as
may be required under the blue sky laws of any jurisdiction in
connection with the purchase and sale of the Senior Notes by the
Underwriters in the manner contemplated in this Agreement and in the
Prospectus and such other consents, approvals, authorizations, filings
and orders (specified in such opinion) which have previously been
obtained and are in full force and effect as of the Closing Date.
(iv) To the knowledge of such counsel, each of the Transferor,
BMW FS, the UTI Beneficiary and the Vehicle Trust has obtained all
material licenses, permits and other governmental authorizations that
are necessary to the conduct of its business; such licenses, permits
and other governmental authorizations are in full force and effect, and
each of the Transferor, BMW FS, the UTI Beneficiary and the Vehicle
Trust is in all material respects complying therewith; and each of the
Transferor, BMW FS, the UTI Beneficiary and the Vehicle Trust is
otherwise in compliance with all laws, rules, regulations and statutes
of any jurisdiction to which it is subject, except where non-compliance
would not have a Material Adverse Effect on such entity.
(v) To the knowledge of such counsel, there is no pending or
threatened action, suit or proceeding by or before any court or
governmental
17
agency, authority or body or any arbitrator involving the Transferor,
BMW FS, the UTI Beneficiary or the Vehicle Trust or their property that
(A) is of a character required to be disclosed in the Registration
Statement and is not so disclosed, (B) asserts the invalidity of this
Agreement, the Transferor LLC Agreement, the BMW FS LLC Agreement, the
Partnership Agreement, any Basic Document or the Senior Notes, (C)
seeks to prevent the issuance of the Senior Notes or the consummation
of any of the transactions contemplated by this Agreement or any Basic
Document, (D) would, if determined adversely to any such entity,
materially and adversely affect the validity or enforceability of, this
Agreement, the Transferor LLC Agreement, the BMW FS LLC Agreement or
the Partnership Agreement, as the case may be, or have a Material
Adverse Effect on it.
(vi) The Registration Statement has become effective under the
Act; any required filing of the Prospectus, and any supplements
thereto, pursuant to Rule 424(b) has been made in the manner and within
the time period required by Rule 424(b); to the knowledge of such
counsel, no stop order suspending the effectiveness of the Registration
Statement has been issued, no proceedings for that purpose have been
instituted or threatened and the Registration Statement and the
Prospectus (other than any financial, numerical or statistical
information contained therein, and the Trustee's Statement of
Eligibility on Form T-1, as to which such counsel need express no
opinion) comply as to form in all material respects with the applicable
requirements of the Act and the Trust Indenture Act and the respective
rules thereunder; and such counsel has no reason to believe that on the
Effective Date or at the Execution Time the Registration Statement
contained any untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus as of its date
and on the Closing Date included or includes any untrue statement of a
material fact or omitted or omits to state a material fact necessary to
make the statements therein, in the light of the circumstances under
which they were made, not misleading (in each case, other than any
financial, numerical or statistical information contained therein, as
to which such counsel need express no opinion).
(e) Opinion of Special Counsel for the Transferor and BMW FS. On the
--------------------------------------------------------
Closing Date, the Representative shall have received the favorable opinion
of ▇▇▇▇, Gotshal & ▇▇▇▇▇▇ LLP, special counsel for the Transferor and BMW
FS, dated the Closing Date and in form and substance satisfactory to the
Representative, to the effect that:
(i) This Agreement has been duly authorized, executed and
delivered by the Transferor and BMW FS.
(ii) The Indenture has been duly authorized and duly qualified
under the Trust Indenture Act and, when duly executed and delivered by
the Trust and the Indenture Trustee, will constitute a valid and
binding agreement of the Trust, enforceable against the Trust in
accordance with its terms, except as the
18
enforcement thereof may be limited by bankruptcy, insolvency,
moratorium, reorganization or other similar laws affecting enforcement
of creditors' rights generally and by general principles of equity
(regardless of whether such enforceability is considered in a
proceeding in equity or at law).
(iii) The Senior Notes have been duly and validly authorized and,
when executed, issued, authenticated and delivered pursuant to the
Indenture, and delivered against payment of the consideration specified
in this Agreement, will be duly and validly issued and outstanding,
constitute valid and binding obligations of the Trust, enforceable
against the Trust in accordance with their terms, and will be entitled
to the benefits of the Indenture. The Certificates have been duly and
validly authorized and, when executed, issued, authenticated and
delivered pursuant to the Trust Agreement, and delivered against
payment of the consideration specified in the Purchase Agreement, will
be duly and validly issued and outstanding and entitled to the benefits
of the Trust Agreement.
(iv) The Transferor LLC Agreement, the BMW FS LLC Agreement and
each Basic Document to which any of the Transferor, BMW FS or the UTI
Beneficiary is a party has been duly executed and delivered by the
Transferor, BMW FS and the UTI Beneficiary, as the case may be, and,
assuming the due authorization, execution and delivery thereof by the
other parties thereto, will constitute the legal, valid and binding
agreement of such entity, as the case may be, enforceable against such
entity in accordance with its terms, except as the enforceability
thereof may be limited by bankruptcy, insolvency, moratorium,
reorganization or other similar laws affecting enforcement of
creditors' rights generally and by general principles of equity
(regardless of whether such enforceability is considered in a
proceeding in equity or at law).
(v) The statements in the Prospectus under the captions
"Summary", "Risk Factors", "Description of the Senior Notes", "Security
for the Securities" and "Additional Document Provisions", insofar as
such statements purport to summarize certain terms or provisions of the
SUBI Certificates, the Securities and the Basic Documents, provide a
fair summary of such provisions and the statements in the Prospectus
under the captions "Risk Factors", "Additional Document Provisions",
"Additional Legal Aspects of the Vehicle Trust and the SUBIs",
"Additional Legal Aspects of the Specified Leases and the Specified
Vehicles", "Material United States Federal Income Tax Consequences" and
"Certain ERISA Considerations", to the extent that they constitute
matters of law, summaries of legal matters, documents or proceedings or
legal conclusions relating to U.S. federal law or the laws of the
States of Delaware or New York have been prepared or reviewed by such
counsel and provide a fair summary in all material respects (and such
counsel may state for clarification that it expresses no opinion as to
whether such statements omit to state a material fact required to be
stated therein).
(vi) The Registration Statement has become effective under the
Act; any required filing of the Prospectus, and any supplements thereto,
pursuant to
19
Rule 424(b) has been made in the manner and within the time period
required by Rule 424(b); to the knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has been
issued, no proceedings for that purpose have been instituted or
threatened and the Registration Statement and the Prospectus (other than
financial, numerical or statistical statements and other financial
information contained therein, and the Trustee's Statement of
Eligibility on Form T-1, as to which such counsel need express no
opinion) comply as to form in all material respects with the applicable
requirements of the Act and the Trust Indenture Act and the respective
rules thereunder; and such counsel has no reason to believe that on the
Effective Date or at the Execution Time the Registration Statement
contained any untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus as of its date
and on the Closing Date included or includes any untrue statement of a
material fact or omitted or omits to state a material fact necessary to
make the statements therein, in the light of the circumstances under
which they were made, not misleading (in each case, other than any
financial, numerical or statistical information contained therein, as to
which such counsel need express no opinion).
(vii) None of BMW FS, the Transferor, the UTI Beneficiary, the
Vehicle Trust or the Trust are and, after giving effect to the offering
and sale of the Senior Notes and the application of the proceeds thereof
as described in the Prospectus, will be, an "investment company" as
defined in the Investment Company Act of 1940, as amended.
(viii) Under the Uniform Commercial Code as in effect in the
State of New York (the "NYUCC"), the execution and delivery of the
Indenture and the delivery for value to and taking of physical
possession in the State of New York by the Indenture Trustee of the SUBI
Certificates will create a valid first priority perfected security
interest, for the benefit of the Indenture Trustee on behalf of the
holders of the Senior Notes, in the Trust's and the Owner Trustee's
right, title and interest in the SUBI Certificates.
(ix) Under the NYUCC, the provisions of the Issuer SUBI
Certificate Transfer Agreement are effective to create a valid security
interest, in favor of the Trust, in the Transferor's rights in all
security entitlements with respect to financial assets now or hereafter
credited to the account established as the Reserve Fund (as defined in
the Trust Agreement) (such security entitlements, the "Pledged Security
Entitlements"). The provisions of the Indenture are effective to create
a valid security interest in favor of the Indenture Trustee, to secure
payment of the Senior Notes, in the Trust's right in the Pledged
Security Entitlements.
(x) Under the NYUCC, the provisions of the Control Agreement
are effective to perfect the security interest of the Indenture Trustee
in the Pledged Security Entitlements.
20
(xi) Under the NYUCC, no security interest of any other creditor
of the Trust will be prior to the security interest of the Indenture
Trustee in the Pledged Security Entitlements.
(xii) All descriptions in the Registration Statement of the Basic
Documents or other contracts or documents filed as exhibits to the
Registration Statement to which the Transferor, BMW FS or any of their
respective Affiliates is a party are accurate in all material respects; to
the best of such counsel's knowledge, there are no franchises, contracts,
indentures, mortgages, loan agreements, notes, leases or other instruments
required to be described or referred to in the Registration Statement or to
be filed as exhibits thereto other than those described or referred to
therein or filed or incorporated by reference as exhibits thereto, and the
descriptions thereof or references thereto are correct in all material
respects.
(f) Opinion of Special Delaware Counsel for the Transferor and BMW FS. On
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the Closing Date, the Representative shall have received the favorable opinion
of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger P.A., special Delaware counsel for the Transferor
and BMW FS, dated the Closing Date and in form and substance satisfactory to the
Representative, to the effect that:
(i) Each of the Transferor and BMW FS has been duly formed and
is validly existing in good standing as a limited liability company under
the laws of the State of Delaware.
(ii) Under the Transferor LLC Agreement and the BMW FS LLC
Agreement, as the case may be, and the Delaware LLC Act, each of the
Transferor and BMW FS has all necessary limited liability company power and
authority to execute and deliver, and to perform its obligations under, the
Transferor LLC Agreement and the BMW FS LLC Agreement, as the case may be,
and the Basic Documents to which it is a party.
(iii) Under the Transferor LLC Agreement and the BMW FS LLC
Agreement, as the case may be, and the Delaware LLC Act, the execution and
delivery by each of the Transferor and BMW FS of the Transferor LLC
Agreement and the BMW FS LLC Agreement, as the case may be, and the Basic
Documents to which it is a party, and the performance by it of its
obligations thereunder, have been duly authorized by all necessary limited
liability company action on the part of the Transferor and BMW FS.
(iv) Each of the Vehicle Trust and the Trust has been duly formed
and is validly existing in good standing as a business trust under the laws
of the State of Delaware.
(v) Under the Vehicle Trust Agreement and the Trust Agreement,
as the case may be, and the DBT Act, each of the Vehicle Trust and the
Trust has all
21
necessary business trust power and authority to execute, deliver, and to
perform its obligations under, the Basic Documents to which it is a party.
(vi) Under the Vehicle Trust Agreement and the Trust Agreement,
as the case may be, and the DBT Act, the execution and delivery by each of
the Vehicle Trust and the Trust of the Basic Documents to which it is a
party, and the performance by it thereunder, have been duly authorized by
all necessary business trust action on the part of the Vehicle Trust and
the Trust.
(vii) Each of the Transferor LLC Agreement, the BMW FS LLC
Agreement, the Vehicle Trust Agreement and the Trust Agreement is a legal,
valid and binding agreement of the parties thereto, enforceable against
such parties, in accordance with its terms.
(viii) The SUBI Certificates have been duly and validly authorized
and, when executed, authenticated and delivered in accordance with the
Vehicle Trust Agreement and the SUBI Supplement, will be duly and validly
issued and outstanding and entitled to the benefits of the Vehicle Trust
Agreement and the SUBI Supplement.
(ix) Under (S)3805(b) of the DBT Act, no creditor of any holder
of a UTI Certificate or a SUBI Certificate shall have any right to obtain
possession of, or otherwise exercise legal or equitable remedies with
respect to, the property of the Vehicle Trust except in accordance with the
terms of the Vehicle Trust Agreement and the SUBI Supplement.
(x) Under (S)3805(b) of the DBT Act, no creditor of any holder
of a Trust Certificate shall have any right to obtain possession of, or
otherwise exercise legal or equitable remedies with respect to, the
property of the Issuer except in accordance with the terms of the Trust
Agreement and the SUBI Supplement.
(xi) To the extent that Article 9 of the Uniform Commercial Code
in effect in the State of Delaware (the "UCC") is applicable (without
regard to conflict of laws principles), and assuming that the security
interest created by the Indenture in the Collateral has been duly created
and has attached, upon the filing of the Financing Statement with the
Secretary of State, the Indenture Trustee will have a perfected security
interest in that portion of the Trust's right in such collateral and the
proceeds thereof that constitutes "accounts", "general intangibles" or
"chattel paper", as such terms are defined in the UCC, and such security
interest will be prior to any other security interest granted by the Issuer
that is perfected solely by the filing of financing statements under the
UCC, excluding purchase money security interests under (S)9-312(4) of the
UCC and temporarily perfected security interests in proceeds under (S)9-
306(3) of the UCC.
(xii) The SUBI Certificates constitute "certificated securities"
and "securities" under the UCC.
22
(xiii) The Certificates and the Subordinated Notes have been duly
and validly authorized and, when executed, authenticated and delivered in
accordance with the Trust Agreement, in the case of (A) the Subordinated
Notes, will be legal, valid and binding obligations of the Trust,
enforceable against the Trust in accordance with their terms and will be
entitled to the benefits of the Trust Agreement, and (B) the Certificates,
will be duly and validly issued and outstanding and entitled to the
benefits of the Trust Agreement.
(g) Special Indiana Counsel to the UTI Beneficiary. On the Closing Date,
----------------------------------------------
the Representative shall have received the favorable opinion of _____________,
special Indiana counsel to the UTI Beneficiary, dated the Closing Date and in
form and substance satisfactory to the Representative, to the effect that:
(i) The UTI Beneficiary is a Indiana limited partnership duly
formed and validly existing under the Indiana Partnership Act, is current
in the payment of fees due to the State of Indiana and is in good standing
and has a legal existence; the UTI Beneficiary has power and authority to
carry on its business as described in the Prospectus and to enter into and
perform its obligations under each Basic Document to which it is a party
and is duly qualified as a foreign limited partnership to transact business
and is in good standing in each jurisdiction where the failure to qualify
would have a Material Adverse Effect on it.
(ii) Under the Indiana Partnership Act and the Partnership
Agreement, the UTI Beneficiary has all necessary partnership power and
authority to execute and deliver, and to perform its obligations under the
Partnership Agreement and the Basic Documents to which it is a party.
(iii) Under the Indiana Partnership Act and the Partnership
Agreement, the execution and delivery by the UTI Beneficiary of the Basic
Documents to which it is a party, and the performance by it of its
obligations thereunder, have been duly authorized by all necessary
partnership action on the part of the UTI Beneficiary.
(iv) The Partnership Agreement has been duly executed and
delivered by BMW Facility Partners and the BMW LP General Partner and,
assuming the due authorization by the parties thereto, constitutes the
legal, valid and binding agreement of BMW Facility Partners and the BMW LP
General Partner enforceable against each such entity in accordance with its
terms, except as the enforceability thereof may be limited by bankruptcy,
insolvency, moratorium, reorganization or other similar laws affecting
enforcement of creditors' rights generally and by general principles of
equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law).
(h) Opinion of Special Bankruptcy Counsel to the Transferor and BMW FS. On
------------------------------------------------------------------
the Closing Date, the Representative shall have received the favorable opinion
of ▇▇▇▇, Gotshal & ▇▇▇▇▇▇ LLP, special bankruptcy counsel to the Transferor and
23
BMW FS, dated the Closing Date and in form and substance satisfactory to the
Representative, with respect to (i) certain nonconsolidation bankruptcy matters
and (ii) certain back-up security interest matters.
(i) Opinion of Counsel for Indenture Trustee. On the Closing Date, the
----------------------------------------
Representative shall have received the favorable opinion of ______________,
counsel to the Indenture Trustee, dated the Closing Date and in form and
substance satisfactory to the Representative to the effect that:
(i) The Chase Manhattan Bank has been duly incorporated and is
validly existing as a New York banking corporation, in good standing under
the laws of the New York with full power and authority (corporate and
other) to own its properties and conduct its business, as presently
conducted by it, and to enter into and perform its obligations as Indenture
Trustee under each Basic Document to which it is a party.
(ii) Each Basic Document to which the Indenture Trustee is a
party has been duly authorized, executed and delivered by the Indenture
Trustee and, assuming the due authorization, execution and delivery thereof
by the other parties thereto, will constitute a legal, valid and binding
obligation of the Indenture Trustee enforceable in accordance with its
terms, except as the enforceability thereof may be limited by bankruptcy,
insolvency, moratorium, reorganization or other similar laws affecting
enforcement of creditors' rights generally and by general principles of
equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law).
(iii) The Senior Notes have been duly executed, authenticated and
delivered by the Indenture Trustee.
(iv) Neither the execution nor delivery by The Chase Manhattan
Bank of each Basic Document to which it is a party nor the consummation of
any of the transactions by the Indenture Trustee contemplated thereby
require the consent or approval of, the giving of notice to, the
registration with or the taking of any other action with respect to, any
governmental authority or agency under any existing federal or state law
governing the banking or trust powers of the Indenture Trustee.
(v) The execution and delivery of each Basic Document to which
the Indenture Trustee is a party and the performance by the Indenture
Trustee of its terms do not conflict with or result in a violation of (A)
any federal or state law or regulation governing its banking or trust
powers, (B) its Articles of Association or Bylaws or (C) to the best
knowledge of such counsel, any indenture, lease or material agreement to
which it is a party or to which its assets are subject.
(j) Opinion of Counsel for Vehicle Trustee. On the Closing Date, the
--------------------------------------
Representative shall have received the favorable opinion of ________________,
counsel
24
to the Vehicle Trustee, dated the Closing Date and satisfactory in form and
substance to the Representative, to the effect that:
(i) Chase Manhattan Bank USA, National Association has been duly
incorporated and is validly existing as a national banking association, in
good standing under the federal laws of the United States of America with
full power and authority (corporate and other) to own its properties and
conduct its business, as presently conducted by it, and to enter into and
perform its obligations as Vehicle Trustee under each Basic Document to
which it is a party.
(ii) Each Basic Document to which the Vehicle Trustee is a party
has been duly authorized, executed and delivered by the Vehicle Trustee
and, assuming the due authorization, execution and delivery thereof by the
other parties thereto, will constitute a legal, valid and binding
obligation of the Vehicle Trustee enforceable in accordance with its
respective terms, except as the enforceability thereof may be limited by
bankruptcy, insolvency, moratorium, reorganization or other similar laws
affecting enforcement of creditors' rights generally and by general
principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
(iii) To the best of their knowledge and information, the Vehicle
Trustee is duly qualified as a foreign corporation to transact business and
is in good standing in ______, ______, ______ and ______.
(iv) The SUBI Certificates have been duly executed, authenticated
and delivered by the Vehicle Trustee.
(v) Neither the execution nor delivery by the Vehicle Trustee of
each Basic Document to which it is a party nor the consummation of any of
the transactions by the Vehicle Trustee contemplated thereby require the
consent or approval of, the giving of notice to, the registration with or
the taking of any other action with respect to, any person or entity,
including any governmental authority or agency under any existing federal
or state law.
(vi) The execution and delivery of each Basic Document to which
the Vehicle Trustee is a party and the performance by the Vehicle Trustee
of their respective terms do not conflict with or result in a violation of
its articles of incorporation or by-laws of the Vehicle Trustee or, to the
best of such counsel's knowledge, any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which it is a party, by which
it may be bound or to which any of its property or assets is subject.
(k) Opinion of Counsel for the Owner Trustee. On the Closing Date, the
----------------------------------------
Representative shall have received the favorable opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ &
Finger P.A., counsel to the Owner Trustee, dated the Closing Date and
satisfactory in form and substance to the Representative to the effect that:
25
(i) The Wilmington Trust Company has been duly incorporated and
is validly existing as a Delaware banking corporation, in good standing
under the laws of the Delaware with full power and authority (corporate and
other) to own its properties and conduct its business, as presently
conducted by it, and to enter into and perform its obligations as Vehicle
Trustee under each Basic Document to which it is a party.
(ii) Each Basic Document to which the Owner Trustee is a party
has been duly authorized, executed and delivered by the Owner Trustee and,
assuming the due authorization, execution and delivery thereof by the other
parties thereto, will constitute the legal, valid and binding obligation of
the Owner Trustee enforceable in accordance with their respective terms,
except as the enforceability thereof may be limited by bankruptcy,
insolvency, moratorium, reorganization or other similar laws affecting
enforcement of creditors' rights generally and by general principles of
equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law).
(iii) Neither the execution nor delivery by the Owner Trustee of
each Basic Document to which it is a party nor the consummation of any of
the transactions by the Owner Trustee contemplated thereby require the
consent or approval of, the giving of notice to, the registration with or
the taking of any other action with respect to, any governmental authority
or agency under any existing federal or state law governing the banking or
trust powers of the Owner Trustee, other than those consents, approvals or
authorizations as have been obtained and the filing of the Certificate of
Trust with the Secretary of State of the State of Delaware.
(iv) Each of the Senior Notes, Certificates and the Subordinated
Notes have been duly executed, authenticated and delivered by the Owner
Trustee.
(v) The execution and delivery of each Basic Document to which
the Owner Trustee is a party and the performance by the Owner Trustee of
its terms do not conflict with or result in a violation of (A) any federal
or state law or regulation governing its banking or trust powers, (B) its
Articles of Association or Bylaws or (C) to the best knowledge of such
counsel, any indenture, lease or material agreement to which it is a party
or to which its assets are subject.
(l) Opinion of Counsel for the Underwriters. On the Closing Date, the
---------------------------------------
Representative shall have received the favorable opinion, dated as of the
Closing Date, of Brown & Wood llp, counsel for the Underwriters, in form and
substance satisfactory to the Representative. In rendering such opinion, such
counsel may rely, as to all matters governed by the laws of jurisdictions other
than the law of the State of New York and the federal law of the United States,
upon the opinions of counsel reasonably satisfactory to the Representative.
(m) Reliance Letters. Counsel to the Transferor and BMW FS shall provide
----------------
reliance letters to the Representative relating to each legal opinion relating
to the
26
transaction contemplated hereby rendered to the Owner Trustee, the Vehicle
Trustee, the Indenture Trustee or either Rating Agency.
(n) Maintenance of Rating. On the Closing Date, (i) the Senior Notes shall
---------------------
be rated by each Rating Agency in its highest rating category and (ii) the
Certificates shall be rated by each Rating Agency at least "A" or its
equivalent, and the Transferor and BMW FS shall have delivered to the
Representative a letter dated the Closing Date from each Rating Agency, or other
evidence satisfactory to the Representative, confirming that the Senior Notes
and Certificates have such ratings; and since the date of this Agreement, there
shall not have occurred a downgrading in the rating assigned to the Senior Notes
and Certificates or any other securities of the Transferor or BMW FS by any
"nationally recognized statistical rating agency", as that term is defined by
the Commission for purposes of Rule 436(g)(2) under the Act, and no such
securities rating agency shall have publicly announced that it has under
surveillance or review, with possible negative implications, its rating of the
Senior Notes and Certificates or any other securities of the Transferor or BMW
FS.
(o) Additional Documents. Prior to the Closing Date, counsel for the
--------------------
Underwriters shall have been furnished with such documents and opinions as it
may reasonably require for the purpose of enabling it to pass upon the issuance
of the Securities and the sale of the Senior Notes as herein contemplated, or in
order to evidence the accuracy of any of the representations or warranties or
the fulfillment of any of the conditions herein contained; and all proceedings
taken by the Transferor, BMW FS, the UTI Beneficiary and their respective
Affiliates in connection with the foregoing shall be reasonably satisfactory in
form and substance to counsel for the Underwriters.
(p) Termination of Agreement. If any condition specified in this Section
------------------------
shall not have been fulfilled in all material respects when and as provided in
this Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be in all material respects satisfactory
in form and substance to the Representative and counsel for the Underwriters,
this Agreement and all obligations of the Underwriters hereunder may be canceled
at, or at any time prior to, the Closing Date by the Representative. Notice of
such cancellation shall be given to the Company in writing or by telephone or
facsimile confirmed in writing.
Section 7. Reimbursement of Underwriters' Expenses. If the sale of the
---------------------------------------
Senior Notes provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 6 is not satisfied, because
of any termination pursuant to Section 10 or because of any refusal, inability
or failure on the part of the Transferor or BMW FS to perform or cause to be
performed any agreement herein or comply with any provision hereof other than by
reason of a default by any of the Underwriters, the Transferor and BMW FS will
jointly and severally reimburse the Underwriters severally through the
Representative on demand for all out-of-pocket expenses (including reasonable
fees and disbursements of counsel) that shall have been incurred by them in
connection with the proposed purchase and sale of the Senior Notes.
27
Section 8. Indemnification and Contribution.
--------------------------------
(a) The Transferor and BMW FS jointly and severally agree to indemnify and
hold harmless each Underwriter, the directors, officers, employees and agents of
each Underwriter and each person who controls any Underwriter within the meaning
of either the Act or the Exchange Act against any and all losses, claims,
damages or liabilities, joint or several, to which they or any of them may
become subject under the Act, the Exchange Act or other Federal or state
statutory law or regulation, at common law or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of a material
fact contained in the registration statement for the registration of the Senior
Notes as originally filed or in any amendment thereof, or in any Preliminary
Prospectus or the Prospectus, or in any amendment thereof or supplement thereto,
or arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, and agrees to reimburse each such indemnified
party, as incurred, for any legal or other expenses reasonably incurred by them
in connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Transferor and BMW FS 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 such untrue statement or alleged
untrue statement or omission or alleged omission made therein in reliance upon
and in conformity with written information furnished to the Transferor by or on
behalf of any Underwriter through the Representative specifically for inclusion
therein. This indemnity agreement will be in addition to any liability which the
Transferor or BMW FS may otherwise have.
(b) Each Underwriter severally and not jointly agrees to indemnify and hold
harmless the Transferor and BMW FS, each of their directors, each of their
officers who signs the Registration Statement, and each person who controls
either the Transferor or BMW FS within the meaning of either the Act or the
Exchange Act, to the same extent as the foregoing indemnity from the Transferor
and BMW FS to each Underwriter, but only with reference to written information
relating to such Underwriter furnished to the Transferor or BMW FS by or on
behalf of such Underwriter through the Representative specifically for inclusion
in the documents referred to in the foregoing indemnity. This indemnity
agreement will be in addition to any liability which any Underwriter may
otherwise have. The Transferor and BMW FS acknowledge that the following
information set forth under the heading "Underwriting" in the Prospectus
constitutes the only information furnished in writing by or on behalf of the
several Underwriters for inclusion in the Prospectus: (i) the list of
Underwriters and their respective participation in the sale of the Senior Notes,
(ii) the sentences in the third paragraph related to concessions and
reallowances and (iii) the sixth paragraph relating to stabilization, syndicate
covering transactions and penalty bids.
(c) Promptly after receipt by an indemnified party under this Section of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section, notify the indemnifying party in writing of the commencement thereof;
but the failure to so notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and such failure results in the forfeiture by the
indemnifying party of substantial rights and defenses and (ii) will not, in any
event, relieve the indemnifying party
28
from any obligations to any indemnified party other than the indemnification
obligation provided in paragraph (a) or (b) above. The indemnifying party shall
be entitled to appoint counsel of the indemnifying party's choice at the
indemnifying party's expense to represent the indemnified party in any action
for which indemnification is sought (in which case the indemnifying party shall
not thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be satisfactory to the indemnified
party. Notwithstanding the indemnifying party's election to appoint counsel to
represent the indemnified party in an action, the indemnified party shall have
the right to employ separate counsel (including local counsel), and the
indemnifying party shall bear the reasonable fees, costs and expenses of such
separate counsel if (i) the use of counsel chosen by the indemnifying party to
represent the indemnified party would present such counsel with a conflict of
interest, (ii) the actual or potential defendants in, or targets of, any such
action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, (iii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of the institution of such action or (iv) the indemnifying party
shall authorize the indemnified party to employ separate counsel at the expense
of the indemnifying party. An indemnifying party will not, without the prior
written consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any pending or threatened claim,
action, suit or proceeding in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such settlement, compromise or
consent includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or (b) of
this Section is unavailable or insufficient to hold harmless an indemnified
party for any reason, the Transferor, BMW FS and the Underwriters severally
agree to contribute to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in connection with
investigating or defending same) (collectively, the "Losses") to which the
Transferor, BMW FS and one or more of the Underwriters may be subject in such
proportion as is appropriate to reflect the relative benefits received by the
Transferor and BMW FS on the one hand and by the Underwriters on the other from
the offering of the Senior Notes; provided, however, that in no case shall any
Underwriter (except as may be provided in any agreement among underwriters
relating to the offering of the Senior Notes) be responsible for any amount in
excess of the underwriting discount or commission applicable to the Senior Notes
purchased by such Underwriter hereunder. If the allocation provided by the
immediately preceding sentence is unavailable for any reason, the Transferor,
BMW FS and the Underwriters severally shall contribute in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Transferor and BMW FS on one hand and of the Underwriters on the
other in connection with the statements or omissions which resulted in such
Losses as well as any other relevant equitable considerations. Benefits received
by the Transferor shall be deemed to be equal to the total net proceeds from the
offering of the Senior Notes (before deducting expenses) received by it, and
benefits received by the Underwriters shall be deemed to be equal to the total
underwriting discounts and commissions, in each case as set forth on the cover
page of the Prospectus. Relative fault shall be determined by reference to,
among other things,
29
whether any untrue or any alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
provided by the Transferor or BMW FS on the one hand or the Underwriters on the
other, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission. The Transferor, BMW FS and the Underwriters agree that it would not be
just and equitable if contribution were determined by pro rata allocation or any
other method of allocation which does not take account of the equitable
considerations referred to above. Notwithstanding the provisions of this
paragraph (d), no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. For purposes of
this Section each person who controls an Underwriter within the meaning of
either the Act or 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 person who controls the Transferor or BMW FS within the
meaning of either the Act or the Exchange Act, each officer of the Transferor or
BMW FS who shall have signed the Registration Statement and each director of the
Transferor or BMW FS shall have the same rights to contribution as the
Transferor and BMW FS, subject in each case to the applicable terms and
conditions of this paragraph (d).
Section 9. Default by an Underwriter. If any one or more Underwriters shall
-------------------------
fail to purchase and pay for any of the Senior Notes agreed to be purchased by
such Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the principal amount of Senior
Notes set forth opposite their names in Schedule I hereto bears to the aggregate
principal amount of Senior Notes set forth opposite the names of all the
remaining Underwriters) the Senior Notes which the defaulting Underwriter or
Underwriters agreed but failed to purchase; provided, however, that in the event
that the aggregate principal amount of Senior Notes which the defaulting
Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of
the aggregate principal amount of Senior Notes set forth in Schedule I hereto,
the remaining Underwriters shall have the right to purchase all, but shall not
be under any obligation to purchase any, of the Senior Notes, and if such
nondefaulting Underwriters do not purchase all the Senior Notes, this Agreement
will terminate without liability to any nondefaulting Underwriter, the
Transferor or BMW FS. In the event of a default by any Underwriter as set forth
in this Section, the Closing Date shall be postponed for such period, not
exceeding five Business Days, as the Representative shall determine in order
that the required changes in the Registration Statement and the Prospectus or in
any other documents or arrangements may be effected. Nothing contained in this
Agreement shall relieve any defaulting Underwriter of its liability, if any, to
the Transferor and any nondefaulting Underwriter for damages occasioned by its
default hereunder.
Section 10. Termination of Agreement. This Agreement shall be subject to
------------------------
termination, in the absolute discretion of the Representative, by notice given
to the Transferor and BMW FS prior to delivery of and payment for the Senior
Notes, if at any time prior to such time (i) if there has been, since the
Execution Time or since the respective dates as of which information is given in
the Prospectus, any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Transferor, BMW FS, the UTI Beneficiary or the Vehicle Trust, whether or not
arising in the ordinary course of business which, in the
30
judgment of the Representative, materially impairs the investment quality of the
Senior Notes or makes it impractical or inadvisable to market the Senior Notes,
(ii) a banking moratorium shall have been declared either by Federal or New York
State authorities or (iii) there shall have occurred any outbreak or escalation
of hostilities, declaration by the United States of a national emergency or war,
or other calamity or crisis the effect of which on financial markets is such as
to make it, in the sole judgment of the Representative, impractical or
inadvisable to proceed with the offering or delivery of the Senior Notes as
contemplated by the Prospectus (exclusive of any supplement thereto).
Section 11. Representations and Indemnities to Survive. The respective
------------------------------------------
agreements, representations, warranties, indemnities and other statements of the
Transferor, BMW FS or their respective officers and of the Underwriters set
forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation made by or on behalf of any Underwriter
or the Transferor or any of the officers, directors, employees, agents or
controlling persons referred to in Section 8, and will survive delivery of and
payment for the Senior Notes. The provisions of Sections 7 and 8 shall survive
the termination or cancellation of this Agreement.
Section 12. Notices. All communications hereunder will be in writing and
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effective only on receipt, and, if sent to the Representative, will be mailed,
delivered or telefaxed to the ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. General Counsel (fax
no.: (▇▇▇) ▇▇▇-▇▇▇▇), and confirmed to the General Counsel, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Inc., at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, Attention: General
Counsel; notices to the Transferor or BMW FS, will be mailed, delivered or
telefaxed to it at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: General Counsel.
Section 13. Successors. This Agreement shall inure to the benefit of and be
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binding upon the parties and the officers, directors, employees, agents and
controlling persons referred to in Section 8, and no other person will have any
right or obligation hereunder.
Section 14. Applicable Law. This agreement shall be governed by and
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construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed within the State of New York.
Section 15. Counterparts. This Agreement may be signed in one or more
------------
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
Section 16. Headings. The section and paragraph headings herein are for
--------
convenience only and shall not effect the construction hereof.
Section 17. Definitions. The terms which follow shall have the meanings
-----------
indicated:
"Act" means the Securities Act of 1933, as amended, and the rules and
regulations of the Commission promulgated thereunder.
"Affiliate" has the meaning of the term "affiliate" as such term is
defined in Rule 501(b) under the Act.
31
"Business Day" means any day other than a Saturday, a Sunday or a
legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law to close in New York City.
"Commission" means the Securities and Exchange Commission.
"▇▇▇▇▇" means the Electronic Data Gathering and Retrieval system of
the Commission.
"Effective Date" means each date and time that the Registration
Statement, any post-effective amendment or amendments thereto became or
become effective.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the Commission promulgated thereunder.
"Execution Time" means the date and time that this agreement is
executed and delivered by the parties hereto.
"Material Adverse Effect" means, with respect to any entity, a
material adverse effect on the condition, financial or otherwise, earnings,
business affairs or business prospects, whether or not arising out of the
ordinary course of business, of such entity, or the ability of such entity
to perform its obligations under this Agreement and each Basic Document to
which it is a party or by which it is bound.
"Preliminary Prospectus" means any preliminary prospectus referred to
in Section 1(a) and any preliminary prospectus included in the Registration
Statement at the Effective Date that omits the Rule 430A Information.
"Prospectus" means the prospectus relating to the Senior Notes that is
first filed with the Commission pursuant to Rule 424(b) after the Execution
Time or, if no filing pursuant to Rule 424(b) is required, means the form
of final prospectus relating to the Senior Notes included in the
Registration Statement at the Effective Date, including the Rule 430A
information.
"Registration Statement" means the registration statement referred to
in Section 1(a)(i), including exhibits and financial statements, as amended
at the Execution Time (or, if not effective at the Execution Time, in the
form in which it shall become effective) and, in the event any post-
effective amendment thereto becomes effective prior to the Closing Date,
shall also mean such registration statement as so amended, as the case may
be. Such term shall include any Rule 430A Information deemed to be included
therein at the Effective Date as provided by Rule 430A.
"Rule 430A Information" means information with respect to the Senior
Notes and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A.
"Rule 424" and "Rule 430A" refer to such rules under the Act.
32
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
33
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us the enclosed duplicate hereof, whereupon it will
become a binding agreement among the Underwriters, the Transferor and BMW FS in
accordance with its terms.
Very truly yours,
BMW AUTO LEASING LLC,
a Delaware limited liability company
By: BMW FINANCIAL SERVICES NA, LLC,
a Delaware limited liability company
By:_______________________________________
Name:
Title:
BMW FINANCIAL SERVICES NA, LLC,
a Delaware limited liability company
By:_______________________________________
Name:
Title:
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, INC.
for itself and as Representative of the
Underwriters named in Schedule I hereto
By:__________________________________
Name:
Title:
SCHEDULE I
Principal Amount of Principal Amount of Principal Amount of
Class A-1 Senior Class A-2 Senior Class A-3 Senior
Name of Underwriter Notes Notes Notes
------------------- ------------------- ------------------- -------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc...................... $ $ $
Banc One Capital Markets, Inc.................
Banc of America Securities LLC................
----------------- ----------------- -----------------
Chase Securities Inc..........................
----------------- ----------------- -----------------
Total.................................... $ $ $
================= ================= =================
Principal Amount of
Class A-4 Senior
Name of Underwriter Notes
------------------- -------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc...................... $
Banc One Capital Markets, Inc.................
Banc of America Securities LLC................
Chase Securities Inc..........................
-----------------
Total.................................... $
=================
SA-1