Exhibit 1.1
BMW VEHICLE OWNER TRUST 2004-A
$1,489,833,000 ASSET BACKED NOTES
BMW FS SECURITIES LLC
(DEPOSITOR)
UNDERWRITING AGREEMENT
May 4, 0000
Xxxx xx Xxxxxxx Securities LLC,
as Representative of the
several Underwriters
Hearst Tower
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Dear Sirs:
SECTION 1. Introductory. BMW FS Securities LLC (the "Depositor") proposes
to cause BMW Vehicle Owner Trust 2004-A (the "Trust") to issue and sell
$313,000,000 principal amount of its 1.18% Class A-1 Notes (the "Class A-1
Notes"), $417,000,000 principal amount of its 1.88% Class A-2 Notes (the "Class
A-2 Notes"), $470,000,000 principal amount of its 2.67% Class A-3 Notes (the
"Class A-3 Notes"), $256,312,000 principal amount of its 3.32% Class A-4 Notes
(the "Class A-4 Notes" and together with the Class A-1 Notes, the Class A-2
Notes and the Class A-3 Notes, the "Class A Notes") and $33,521,000 principal
amount of its 3.52% Class B Notes (the "Class B Notes" and together with the
Class A Notes, the "Notes") to the several underwriters set forth on Schedule I
(each, an "Underwriter"), for whom Banc of America Securities LLC is acting as
representative (the "Representative"). The Notes will be issued pursuant to an
Indenture, dated as of May 1, 2004 (the "Indenture"), between the Trust and
Citibank, N.A., as indenture trustee (in such capacity, the "Indenture
Trustee"). The assets of the Trust will include, among other things, a pool of
motor vehicle retail installment sale contracts transferred to the Trust on the
Closing Date referred to in Section 3(a) hereof (the "Receivables") secured by
new and used automobiles, motorcycles, light-duty trucks and sport utility
vehicles financed thereby (the "Vehicles") and certain monies received
thereunder after the close of business on April 30, 2004 (the "Cutoff Date") and
other property and proceeds thereof to be conveyed to the Trust pursuant to a
Sale and Servicing Agreement dated as of May 1, 2004 (the "Sale and Servicing
Agreement"), among the Trust, BMW Financial Services NA, LLC ("BMW Financial
Services"), as servicer (in such capacity, the "Servicer"), seller,
administrator and custodian, the Depositor and the Indenture Trustee. Pursuant
to the Sale and Servicing Agreement, the Depositor will sell the Receivables to
the Trust and the Servicer will service the Receivables on behalf of the Trust.
In addition, pursuant to an Owner Trust Administration Agreement dated as of May
1, 2004 (the "Owner Trust Administration Agreement"), among the Trust, BMW
Financial Services and the Indenture Trustee, BMW Financial Services will agree
to perform certain administrative duties on behalf of the Trust. The Depositor
formed the Trust pursuant to a Trust Agreement dated March 30, 2004, as amended
and restated as of May 1, 2004
(the "Trust Agreement"), between the Depositor and Wilmington Trust Company, as
owner trustee (the "Owner Trustee"). The Certificates, each representing a
fractional undivided interest in the Trust, will be issued pursuant to the Trust
Agreement.
The Depositor will acquire the Receivables from BMW Financial Services
pursuant to a Receivables Purchase Agreement, dated as of May 1, 2004 (the
"Receivables Purchase Agreement"), between the Depositor and BMW Financial
Services. BMW Financial Services will acquire the Receivables from BMW FS
Funding Corp. ("BFFC") pursuant to a Xxxx of Sale, dated as of May 1, 2004 (the
"Xxxx of Sale"), between BFFC and BMW Financial Services.
Capitalized terms used but not otherwise defined herein shall have the
meanings set forth in the Sale and Servicing Agreement or the Indenture, as the
case may be. As used herein, the term "Transaction Documents" refers to the Sale
and Servicing Agreement, the Indenture, the Trust Agreement, the Xxxx of Sale,
the Receivables Purchase Agreement, the Owner Trust Administration Agreement and
the Note Depository Agreement.
SECTION 2. Representations and Warranties. (a) As a condition of the
obligation of the Underwriters to purchase the Notes, each of the Depositor and
BMW Financial Services makes the representations and warranties set forth below
to each of the Underwriters. To the extent a representation or warranty
specifically relates to the Depositor, the representation or warranty solely
with respect to the Depositor is only made by the Depositor and to the extent a
representation or warranty specifically relates to BMW Financial Services, the
representation or warranty solely with respect to BMW Financial Services is only
made by BMW Financial Services.
(i) A registration statement on Form S-3 (No. 333-103795),
including a prospectus, relating to the Notes has been filed with the
Securities and Exchange Commission (the "Commission") and has become
effective. Such registration statement, as amended as of the date of this
Agreement, together with any filings incorporated by reference into it, is
hereinafter referred to as the "Registration Statement," and the prospectus
included in such Registration Statement, as supplemented to reflect the
terms of the Notes as first filed with the Commission after the date of
this Agreement pursuant to and in accordance with Rule 424(b) ("Rule
424(b)") under the Securities Act of 1933, as amended (the "Act"),
including all material incorporated by reference therein, is hereinafter
referred to as the "Prospectus;" a "preliminary prospectus" means any form
of prospectus, including any prospectus supplement, relating to the Notes
used prior to the date of this Agreement, if any, that is subject to
completion; the "Base Prospectus" means the base prospectus dated April 17,
2003 included in the Prospectus; the "Prospectus Supplement" means the
prospectus supplement dated the date hereof included in the Prospectus.
(ii) On the effective date of the Registration Statement,
such Registration Statement conformed in all respects to the requirements
of the Act and the rules and regulations of the Commission promulgated
under the Act (the "Rules and Regulations") and did not include any untrue
statement of a material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein not
misleading, and on the date of this Agreement the Registration Statement
and the
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preliminary prospectus, if any, conform, and at the time of the filing of
the Prospectus in accordance with Rule 424(b), the Registration Statement
and the Prospectus will conform in all respects to the requirements of the
Act and the Rules and Regulations, and neither of such documents includes
or will include any untrue statement of a material fact or omits or will
omit to state any material fact required to be stated therein or necessary
to make the statements therein not misleading. The preceding sentence does
not apply to statements in or omissions from such documents based upon
written information furnished to the Depositor by the Representative
specifically for use therein (the "Underwriters' Information") which
information is limited to the information in the third paragraph, the
second sentence of the fifth paragraph and the seventh paragraph under the
heading "Underwriting" in each preliminary prospectus, if any, and the
Prospectus Supplement.
(iii) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus there has not been
any material adverse change, or any development involving a prospective
material adverse change, in or affecting the condition, financial or
otherwise, earnings, business or operations of the Depositor or BMW
Financial Services, and their respective subsidiaries, taken as a whole,
except as disclosed to the Representative in writing prior to the date
hereof.
(iv) The Notes are "asset backed securities" within the
meaning of, and satisfy the requirements for use of, Form S-3 under the
Act.
(v) The documents incorporated by reference in the
Registration Statement and Prospectus, at the time they were or hereafter
are filed with the Commission, complied and will comply in all material
respects with the requirements of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and the rules and regulations of the
Commission thereunder.
(vi) The Trust Agreement need not be qualified under the
Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), and
the Trust is not required to register under the Investment Company Act of
1940, as amended (the "Investment Company Act").
(vii) The Indenture has been qualified under the Trust
Indenture Act.
(viii) The Depositor (A) has filed the preliminary prospectus
supplement relating to the Notes pursuant to and in accordance with Rule
424(b) or (B) has filed or will cause to be filed, as an exhibit to a
report on Form 8-K, with the Commission, within the time frame set forth in
Section 5(b) hereof, all Computational Materials (as defined in Section
5(b) hereof) made available to prospective investors.
(ix) The issuance and sale of the Notes have been duly
authorized by all necessary corporate action of the Depositor and, when
executed, authenticated and delivered to and paid for by the Underwriters
in accordance with the terms of this Agreement and the Indenture, the Notes
will be valid and binding obligations of the Trust, entitled to the
benefits of the Indenture and enforceable in accordance with their
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terms, except as the enforceability thereof may be limited by bankruptcy,
insolvency, reorganization or similar laws now or hereafter in effect
relating to or affecting creditors' rights generally and to general
principles of equity (whether applied in a proceeding at law or in equity).
(x) Each of the Depositor, BMW Financial Services and BFFC
has been duly incorporated and is validly existing as a corporation or
limited liability company, as the case may be, in good standing under the
law of its jurisdiction of formation or incorporation, as the case may be,
with full power and authority to own, lease and operate its properties and
assets and conduct its business as described in the Prospectus, is duly
qualified to transact business and is in good standing in each jurisdiction
in which its ownership, leasing or operation of its properties or assets or
the conduct of its business requires such qualification, and has full power
and authority to execute and perform its obligations under this Agreement,
the Transaction Documents and the Notes.
(xi) The execution and delivery of this Agreement has been
duly authorized by all necessary corporate action of the Depositor and BMW
Financial Services, and this Agreement has been duly executed and delivered
by the Depositor and BMW Financial Services and when duly executed and
delivered by the other parties hereto will be the valid and binding
agreement of the Depositor and BMW Financial Services, enforceable against
the Depositor and BMW Financial Services in accordance with its terms
except as the enforceability thereof may be limited by bankruptcy,
insolvency, reorganization or similar laws now or hereafter in effect
relating to or affecting creditors' rights generally and to general
principles of equity (whether applied in a proceeding at law or in equity).
(xii) The execution and delivery of the Transaction Documents
have been duly authorized by all necessary corporate action of the
Depositor, BFFC and BMW Financial Services and, when duly executed and
delivered by the Depositor, BMW Financial Services, BFFC and the other
parties thereto, will be valid and binding agreements of the Depositor, BMW
Financial Services and BFFC, enforceable against the Depositor, BMW
Financial Services and BFFC in accordance with their terms except as the
enforceability thereof may be limited by bankruptcy, insolvency,
reorganization or similar laws now or hereafter in effect relating to or
affecting creditors' rights generally and to general principles of equity
(whether applied in a proceeding at law or in equity).
(xiii) The execution and delivery by the Depositor, BFFC and
BMW Financial Services of, and the performance by the Depositor and BMW
Financial Services of its obligations under, this Agreement, the
Transaction Documents and the Notes, the issuance and sale of the Notes to
the Underwriters by the Depositor pursuant to this Agreement, the
compliance by the Depositor and BMW Financial Services with the other
provisions of this Agreement and the consummation of the other transactions
herein contemplated do not (A) require the consent, approval,
authorization, registration or qualification of or with any governmental
authority, except such as have been obtained or made or such as may be
required by the state securities or Blue Sky laws of the various states of
the United States of America or other U.S. jurisdictions in connection with
the
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offering by the Underwriters or (B) conflict with or result in a breach or
violation or acceleration of, or constitute a default under, any term or
provision of the organizational documents of the Depositor, BMW Financial
Services or BFFC, any indenture, mortgage, deed of trust, lease or other
agreement or instrument to which the Depositor, BMW Financial Services or
BFFC is a party or by which any of them or their properties is bound or
result in a violation of or contravene the terms of any statute, order or
regulation applicable to the Depositor, BMW Financial Services or BFFC of
any court, regulatory body, administrative agency, governmental body or
arbitrator having jurisdiction over the Depositor, BMW Financial Services
or BFFC, or will result in the creation of any lien upon any material
property or assets of the Depositor, BMW Financial Services or BFFC (other
than pursuant to the Transaction Documents).
(xiv) None of the Depositor, BMW Financial Services or BFFC
is in violation of any term or provision of its charter documents or
by-laws, or in breach of or in default under any statute or any judgment,
decree, order, rule or regulation of any court or other governmental
authority or any arbitrator applicable to the Depositor, BMW Financial
Services or BFFC, the consequence of which violation, breach or default
would have (A) a materially adverse effect on or constitute a materially
adverse change in, or constitute a development involving a prospective
materially adverse effect on or change in, the condition (financial or
otherwise), earnings, properties, business affairs or business prospects,
net worth or results of operations of the Depositor, BMW Financial Services
or BFFC or (B) a material and adverse effect on its ability to perform its
obligations under this Agreement or any of the Transaction Documents to
which it is a party.
(xv) Neither the Depositor nor BMW Financial Services nor
anyone acting on their behalf has taken any action that would require
registration of the Depositor or the Trust under the Investment Company
Act; nor will the Depositor or BMW Financial Services act, nor has either
of them authorized nor will either of them authorize any person to act, in
such manner.
(xvi) The Depositor, BFFC and BMW Financial Services each
possess all consents, licenses, certificates, authorizations and permits
issued by the appropriate federal, state or foreign regulatory authorities
necessary to conduct their respective businesses, and none of the
Depositor, BFFC or BMW Financial Services has received any notice of
proceedings relating to the revocation or modification of any such
certificate, authorization or permit which, singly or in the aggregate, if
the subject of an unfavorable decision, ruling or finding, would have a
material adverse effect on or constitute a material adverse change in, or
constitute a development involving a prospective material adverse effect on
or change in, the condition (financial or otherwise), earnings, properties,
business affairs or business prospects, net worth or results of operations
of the Depositor, BFFC or BMW Financial Services, except as described in or
contemplated by the Prospectus.
(xvii) No legal or governmental proceedings are pending or
threatened to which the Depositor or BMW Financial Services is a party or
to which the property of the Depositor or BMW Financial Services is subject
except for such proceedings that would not, if the subject of any
unfavorable decision, ruling or finding, singly or in the
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aggregate, have a material adverse effect on the condition (financial or
otherwise), earnings, properties, business affairs or business prospects,
net worth or results of operations of the Depositor or BMW Financial
Services or the Depositor's or BMW Financial Services' ability to perform
its obligations under this Agreement, the Transaction Documents to which it
is a party or the Notes.
(xviii) No default exists, and no event has occurred which,
with notice or lapse of time or both, would constitute a default in the due
performance and observance of any term, covenant or condition of any
indenture, mortgage, deed of trust, lease or other agreement or instrument
to which the Depositor or any of its affiliates is a party or by which the
Depositor or any of its affiliates or any of their respective properties is
bound.
(xix) The Notes and the Transaction Documents conform in all
material respects to the descriptions thereof contained in the Prospectus.
(xx) As of the Closing Date, each of the Depositor's, BFFC's
and BMW Financial Services' representations and warranties in the
Transaction Documents, will be true and correct and such representations
and warranties are incorporated herein by reference.
(xxi) Other than as contemplated by this Agreement or as
disclosed in the Prospectus, there is no broker, finder or other party that
is entitled to receive from the Depositor or any of its affiliates or the
Underwriters, any brokerage or finder's fee or other fee or commission as a
result of any of the transactions contemplated by this Agreement.
(xxii) Neither the Depositor nor any of its affiliates has
entered into, nor will it enter into, any contractual arrangement with
respect to the distribution of the Notes except for this Agreement.
(xxiii) BFFC's sale and assignment of a portion of the
Receivables to BMW Financial Services pursuant to the Xxxx of Sale will
vest in BMW Financial Services all of BFFC's right, title and interest to
the Receivables.
(xxiv) BMW Financial Services' sale and assignment of the
Receivables to the Depositor pursuant to the Receivables Purchase Agreement
will vest in the Depositor all of BMW Financial Services' right, title and
interest to the Receivables.
(xxv) The Depositor's sale and assignment of the Receivables
to the Trust pursuant to the Sale and Servicing Agreement will vest in the
Trust all of the Depositor's right, title and interest to the Receivables,
including all of the Depositor's rights under the Receivables Purchase
Agreement.
(xxvi) The Trust's assignment of the Collateral to the
Indenture Trustee pursuant to the Indenture will vest in the Indenture
Trustee, for the benefit of the Noteholders, a first priority perfected
security interest therein, subject to no other outstanding Lien.
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(xxvii) The Notes, when duly and validly executed by the
Indenture Trustee, authenticated and delivered in accordance with the
Indenture, and delivered and paid for pursuant hereto will be validly
issued and outstanding and will constitute legal, valid and binding
obligations of the Trust, entitled to the benefits of the Indenture and
enforceable in accordance with their terms.
(xxviii) The Certificates, when duly and validly executed by the
Owner Trustee, authenticated and delivered in accordance with the Trust
Agreement, will be validly issued and outstanding and entitled to the
benefits of the Trust Agreement.
(xxix) Any taxes, fees and other governmental charges due on
or prior to the Closing Date (including, without limitation, sales taxes)
in connection with the execution, delivery and issuance of this Agreement,
the Transaction Documents and the Notes have been or will have been paid at
or prior to the Closing Date.
(xxx) The Receivables are "tangible chattel paper" or
"promissory notes" as defined in the Uniform Commercial Code ("UCC") as in
effect in the State of New York, the State of Delaware and the State of
Ohio.
(xxxi) Under generally accepted accounting principles, BFFC
will report its transfer of the Receivables as a sale, BMW Financial
Services will report its transfer of the Receivables as a sale, and the
Depositor will report its transfer of the Receivables to the Trust as a
sale of the Receivables.
(xxxii) Immediately prior to the transfer thereof to BMW
Financial Services pursuant to the Xxxx of Sale, BFFC is the sole owner of
all right, title and interest in, and has good and marketable title to the
Receivables and the other property to be transferred to BMW Financial
Services. BFFC, pursuant to the Xxxx of Sale, is transferring to BMW
Financial Services ownership of the Receivables, the security interest in
the Vehicles securing the Receivables and the proceeds of each of the
foregoing, and, immediately prior to the transfer thereof to the Depositor,
BMW Financial Services will be the sole owner of all right, title and
interest in, and will have good and marketable title to, the Receivables
and the other property to be transferred by it to the Depositor. BMW
Financial Services, pursuant to the Receivables Purchase Agreement, is
transferring to the Depositor ownership of the Receivables, the security
interest in the Vehicles securing the Receivables and the proceeds of each
of the foregoing, and, immediately prior to the transfer thereof to the
Trust, the Depositor will be the sole owner of all right, title and
interest in, and will have good and marketable title to, the Receivables
and the other property to be transferred by it to the Trust. The assignment
of the Receivables, all documents and instruments relating thereto and all
proceeds thereof to the Trust, pursuant to the Xxxx of Sale, the
Receivables Purchase Agreement and the Sale and Servicing Agreement, vests
in the Trust all interests which are purported to be conveyed thereby, free
and clear of any liens, security interests or encumbrances (other than
those permitted by the Transaction Documents).
(xxxiii) Immediately prior to the sale of the Receivables from
BFFC to BMW Financial Services, BFFC will file UCC-3 termination statements
(the "BFFC
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Financing Statements"), in the offices specified in Schedule III hereto and
there shall be no unreleased statements affecting the Receivables filed in
such offices or in the offices of the Secretary of State of the State of
New Jersey (the "New Jersey Secretary of State") and the Secretary of State
of the State of Delaware (the "Delaware Secretary of State" and, together
with the New Jersey Secretary of State, the "Transition Filing Offices").
No other filing or other action is necessary to perfect and maintain the
interest of BMW Financial Services in the Receivables and the proceeds
thereof against third parties.
(xxxiv) Immediately prior to the transfer of the Receivables to
the Depositor, the Depositor's interest in the Receivables and the proceeds
thereof shall be perfected upon the filing of UCC-1 financing statements
(the "BMW Financial Services Financing Statements") in the offices
specified in Schedule III hereto and there shall be no unreleased
statements affecting the Receivables filed in such offices or in the
Transition Filing Offices other than the BMW Financial Services Financing
Statements. If a court concludes that the transfer of the Receivables from
BMW Financial Services to the Depositor is a sale, the interest of the
Depositor in the Receivables and the proceeds thereof will be perfected
upon the filing of the BMW Financial Services Financing Statements in the
offices set forth in Schedule III hereto. If a court concludes that such
transfer is not a sale, the Receivables Purchase Agreement and the
transactions contemplated thereby constitute a grant by BMW Financial
Services to the Depositor of a valid security interest in the Receivables
and the proceeds thereof, which security interest will be perfected upon
the filing of the BMW Financial Services Financing Statements in the
offices specified in Schedule III hereto. No other filing or other action
is necessary to perfect and maintain the interest or the security interest
of the Depositor in the Receivables and the proceeds thereof against third
parties.
(xxxv) Immediately prior to the transfer of the Receivables to
the Trust, the Trust's interest in the Receivables and the proceeds thereof
shall be perfected upon the filing of UCC-1 financing statements (the
"Depositor Financing Statements") in the offices specified in Schedule III
hereto and there shall be no unreleased statements affecting the
Receivables filed in such offices other than the Depositor Financing
Statements. If a court concludes that the transfer of the Receivables from
Depositor to the Trust is a sale, the interest of the Trust in the
Receivables and the proceeds thereof will be perfected upon the filing of
the Depositor Financing Statements in the offices set forth in Schedule III
hereto. If a court concludes that such transfer is not a sale, the Sale and
Servicing Agreement and the transactions contemplated thereby constitute a
grant by Depositor to the Trust of a valid security interest in the
Receivables and the proceeds thereof, which security interest will be
perfected upon the filing of the Depositor Financing Statements in the
offices specified in Schedule III hereto. No other filing or other action
is necessary to perfect and maintain the interest or the security interest
of the Trust in the Receivables and the proceeds thereof against third
parties.
(xxxvi) Immediately prior to the pledge of the Receivables to
the Indenture Trustee, the Indenture Trustee's interest in the Receivables
and the proceeds thereof shall be perfected upon the filing of UCC-1
financing statements (the "Trust Financing Statements") in the offices
specified in Schedule III hereto. No other filing or other action
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is necessary to perfect and maintain the interest or the security interest
of the Indenture Trustee in the Receivables and the proceeds thereof
against third parties.
(b) The above representations and warranties shall be deemed to be
repeated at the Closing Date.
SECTION 3. Purchase, Sale and Delivery of Notes. (a) On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Depositor agrees to cause the Trust
to sell to each Underwriter, and each Underwriter agrees, severally and not
jointly, to purchase from the Trust the respective principal amount of the Notes
set forth opposite the name of such Underwriter on Schedule I hereto, at a
purchase price (the "Purchase Price") equal to "Price $" as specified on
Schedule II hereto, plus accrued interest from May 12, 2004. Delivery of and
payment for the Notes shall be made at the offices of Weil, Gotshal & Xxxxxx
LLP, 000 0/xx/ Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, at 10:00 a.m. (New York City
time) on May 12, 2004 (or at such other place and time on the same or other date
as shall be agreed to in writing by the Representative and the Depositor, the
"Closing Date"). Delivery of one or more global notes representing the Notes
shall be made against payment of the aggregate purchase price in immediately
available funds drawn to the order of the Depositor. The global notes to be so
delivered shall be registered in the name of Cede & Co., as nominee of The
Depository Trust Company ("DTC"). The interests of beneficial owners of the
Notes will be represented by book entries on the records of DTC and
participating members thereof. Definitive Notes representing the Notes will be
available only under those limited circumstances set forth in the Indenture.
(b) The Depositor hereby acknowledges that the payment of monies pursuant
to Section 3(a) hereof (a "Payment") by or on behalf of the Underwriters of the
aggregate Purchase Price for the Notes does not constitute closing of a purchase
and sale of the Notes. Only execution and delivery, by facsimile or otherwise,
of a receipt for Notes by the Representative indicates completion of the closing
of a purchase of the Notes from the Depositor. Furthermore, in the event that
the Underwriters make a Payment to the Depositor prior to the completion of the
closing of a purchase of Notes, the Depositor hereby acknowledges that until the
Representative executes and delivers such receipt for the Notes the Depositor
will not be entitled to the Payment and shall return the Payment to the
Underwriters as soon as practicable (by wire transfer of same-day funds) upon
demand. In the event that the closing of a purchase of Notes is not completed
and the Payment is not returned by the Depositor to the Underwriters on the same
day the Payment was received by the Depositor, the Depositor agrees to pay to
the Underwriters in respect of each day the Payment is not returned by it, in
same-day funds, interest on the amount of such Payment in an amount representing
the Underwriters' cost of financing as reasonably determined by the
Representative.
(c) It is understood that Banc of America Securities LLC, individually,
may (but shall not be obligated to) make Payment on behalf of any Underwriter or
Underwriters for any of the Notes to be purchased by such Underwriter or
Underwriters. No such Payment shall relieve such Underwriter or Underwriters
from any of its or their obligations hereunder.
SECTION 4. Offering by Underwriters. It is understood that the
Underwriters propose to offer the Notes for sale to the public (which may
include selected dealers) on the terms set
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forth in the Prospectus. It is further understood that the Underwriters shall
not deliver any Computational Materials (as defined herein) to any potential
investors unless such Computational Materials have been approved in writing by
the Depositor.
SECTION 5. Covenants of the Depositor and BMW Financial Services. The
Depositor and BMW Financial Services, as applicable, each covenant and agree
with the Underwriters as set forth below. For purposes of this Section, the
Depositor and BMW Financial Services shall jointly make each of the covenants
set forth below in clauses (a), (b), (c), (e), (g), (h), (i), (k), (l) and (m)
and the entity specified in the covenant below shall make the covenants set
forth in all of the other clauses below.
(a) The Depositor will furnish to the Underwriters and counsel to the
Underwriters, without charge, as many copies of the preliminary prospectus, if
any, the Computational Materials, if any, the Prospectus, the Registration
Statement and all amendments and supplements to such documents, in each case as
soon as available and in such quantities as the Underwriters reasonably request.
(b) The Depositor will file the Prospectus, properly completed, with the
Commission pursuant to and in accordance with subparagraph (2) (or, if
applicable and if consented to by the Representative, subparagraph (5)) of Rule
424(b) no later than the second business day following the date it is first
used. The Depositor and BMW Financial Services will advise the Representative
promptly of any such filing pursuant to Rule 424(b). The Depositor shall file
with the Commission a current report on Form 8-K (the "Current Report")
including any "computational materials," "structural terms sheets" or
"collateral term sheets" (together, the "Computational Materials"), if any, (i)
no later than the date that the Prospectus Supplement is filed with respect to
"computational materials" and "structural terms sheets" (as such terms are
interpreted in the No-Action letters addressed to Xxxxxx, Xxxxxxx Acceptance
Corporation I, et al. and the Public Securities Association dated May 20, 1994
and February 17, 1995, respectively (collectively, the "PSA Letters")) or (ii)
no later than two days following their date of first use with respect to
"collateral term sheets" (as such term is interpreted in the PSA Letters).
(c) During the time that the Underwriters are required to deliver a
prospectus to investors, the Depositor and BMW Financial Services will advise
the Representative promptly of any proposal to amend or supplement the
Registration Statement or the Prospectus and will not effect or file any such
amendment or supplement without the consent of the Representative, which consent
shall not be unreasonably withheld. The Depositor and BMW Financial Services
will advise the Representative promptly of any amendment or supplement of the
Registration Statement or the Prospectus and of the institution by the
Commission of any stop order proceedings in respect of the Registration
Statement. Each of the Depositor and BMW Financial Services will use its best
efforts to prevent the issuance of any such stop order and to obtain as soon as
possible its lifting, if issued. The Depositor and BMW Financial Services will
comply with the Act, the Exchange Act, the Trust Indenture Act and the rules and
regulations contemplated thereunder so as to permit the completion of the
distribution of the Notes as contemplated in this Agreement and in the
Prospectus. The Depositor will file with the Commission all documents required
to be filed pursuant to the Exchange Act within the time periods specified in
the Exchange Act or the rules and regulations promulgated thereunder.
10
(d) The Depositor will arrange for the qualification of the Notes for
offering and sale in each jurisdiction as the Representative shall designate
including, but not limited to, pursuant to applicable state securities Blue Sky
laws of certain states of the United States of America or other U.S.
jurisdictions so designated, and the Depositor shall maintain such
qualifications in effect for so long as may be necessary in order to complete
the placement of the Notes; provided, however, that the Depositor shall not be
obligated to file any general consent to service of process or to qualify as a
foreign limited liability company or as a securities dealer in any jurisdiction
or to subject itself to taxation in respect of doing business in any
jurisdiction in which it is not otherwise so subject. The Depositor will
promptly advise the Representative of the receipt by the Depositor of any
notification with respect to the suspension of the qualification of the Notes
for sale in any jurisdiction or the initiation or threatening of any proceeding
for such purpose.
(e) If, at any time when a prospectus relating to the Notes is required to
be delivered by an Underwriter or dealer either (i) any event occurs as a result
of which the Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading, or (ii) for any other reason it shall be
necessary to amend or supplement the Prospectus to comply with the Act, the
Depositor and BMW Financial Services promptly will notify the Representative of
such event and promptly will prepare, at their own expense, an amendment or
supplement which will correct such statement or omission. Neither the
Underwriters' consent to, nor the Underwriters' distribution of, any amendment
or supplement to the Prospectus shall constitute a waiver of any of the
conditions set forth in Section 7 hereof.
(f) The Depositor will cooperate with the Representative and use its best
efforts to permit the Notes to be eligible for clearance and settlement through
DTC.
(g) BMW Financial Services and the Depositor shall (i) furnish or make
available to the Underwriters or their counsel such additional documents and
information regarding BMW Financial Services, the Depositor and their respective
affairs as the Underwriters may from time to time reasonably request prior to
the Closing Date, including any and all documentation reasonably requested in
connection with its due diligence efforts regarding information in the
Prospectus and in order to evidence the accuracy or completeness of any of the
conditions contained in this Agreement and (ii) provide the Underwriters or
their advisors, or both, prior to acceptance of its subscription, the
opportunity to ask questions of, and receive answers with respect to such
matters.
(h) Until the retirement of the Notes, or until none of the Underwriters
maintains a secondary market in the Notes, whichever occurs first, the Depositor
shall deliver to each of the Underwriters, through the Representative, the
annual statement of compliance and any annual independent certified public
accountants' report furnished to the Indenture Trustee pursuant to the Sale and
Servicing Agreement, as soon as such statements and reports are furnished to the
Indenture Trustee.
(i) So long as any of the Notes are outstanding, the Depositor shall
deliver to each of the Underwriters, through the Representative: (i) all
documents distributed to Noteholders and
11
(ii) from time to time, any other information concerning BMW Financial Services,
the Depositor or the Trust as the Underwriters may reasonably request only
insofar as such information reasonably relates to the Prospectus or the
transactions contemplated by the Transaction Documents.
(j) On or before the Closing Date, the Depositor, BFFC and BMW Financial
Services shall cause their computer records relating to the Receivables to be
marked to show the Trust's absolute ownership of the Receivables, and from and
after the Closing Date none of the Depositor, BFFC or BMW Financial Services
shall take any action inconsistent with the Trust's ownership of such
Receivables, other than as permitted by the Indenture or Sale and Servicing
Agreement.
(k) To the extent, if any, that any of the ratings assigned to the Notes
by any of the rating agencies that initially rate the Notes are conditional upon
the furnishing of documents or the taking of any other actions by the Depositor
or BMW Financial Services, as the case may be, the relevant party shall furnish,
or cause to be furnished, such documents and take any such other actions as
promptly as possible.
(l) As soon as practicable, but no later than 16 months after the date
hereof, the Depositor and BMW Financial Services will cause the Trust to make
generally available to the Noteholders an earnings statement covering a period
of at least 12 consecutive months beginning after the later of (i) the effective
date of the Registration Statement relating to the Notes and (ii) the effective
date of the most recent post-effective amendment to the Registration Statement
to become effective prior to the date of this Agreement and, in each case,
satisfying the provisions of Section 11(a) of the Act (including Rule 158
promulgated thereunder).
(m) From the date hereof until the Closing Date, none of the Depositor,
BMW Financial Services 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 Notes.
SECTION 6. Payment of Expenses. The Depositor shall pay all expenses
(including legal fees and disbursements) incident to the transactions
contemplated by this Agreement, whether or not the transactions contemplated
herein are consummated or this Agreement is terminated pursuant to Section 8
hereof, including: (a) the preparation, printing and distribution of each
preliminary prospectus, if any, all Computational Materials, if any, and the
Prospectus and each amendment or supplement thereto and delivery of copies
thereof to the Underwriters, (b) the preparation of this Agreement, (c) the
preparation, issuance and delivery of the Notes to the Underwriters (or any
appointed clearing organizations), (d) the fees and disbursements of BMW
Financial Services' and the Depositor's counsel and accountants, (e) the
qualification of the Notes under state securities laws in accordance with
Section 5(d) hereof including filing fees and the fees and disbursements of
counsel in connection therewith and in connection with the preparation of any
blue sky survey (including the printing and delivery thereof to the
Underwriters), (f) any fees charged by rating agencies for the rating (or
consideration of the rating) of the Notes, (g) the fees and expenses incurred
with respect to any filing with, and review by, DTC or any similar
organizations, (h) the fees and disbursements of the Indenture
12
Trustee and its counsel, if any, (i) the fees and disbursements of the Owner
Trustee and its counsel, if any, and (j) the fees and expenses of Xxxxxxxx,
Xxxxxx & Finger, P.A.
SECTION 7. Conditions of the Obligations of the Underwriters. The
obligations of the Underwriters to purchase and pay for the Notes will be
subject to the accuracy of the representations and warranties made herein, to
the accuracy of the statements of officers of the Depositor, BFFC and BMW
Financial Services made pursuant hereto, to the performance by the Depositor and
BMW Financial Services of their obligations hereunder, and to the following
additional conditions precedent:
(a) On the Closing Date, each of the Transaction Documents, the Notes and
the Certificates shall have been duly authorized, executed and delivered by the
parties thereto, shall be in full force and effect and no default shall exist
thereunder, and the Owner Trustee and the Indenture Trustee shall have received
a fully executed copy thereof or, with respect to the Notes and Certificates, a
conformed copy thereof. The Transaction Documents, the Notes and the
Certificates shall be substantially in the forms heretofore provided to the
Representative.
(b) Both at or before the date hereof, and on or before the Closing Date,
the Representative shall have received letters, dated as of the date hereof and
as of the Closing Date, respectively, of KPMG Peat Marwick LLP, independent
certified public accountants, substantially in the form of the drafts to which
the Representative have agreed previously and otherwise substantially in form
and substance reasonably satisfactory to the Representative and counsel to the
Underwriters.
(c) The Prospectus and the Computational Materials, if any, shall have
been filed with the Commission in accordance with the Rules and Regulations and
Section 5(b) hereof on or prior to the Closing Date, no stop order suspending
the effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted or, to the knowledge of
the Depositor or BMW Financial Services shall be contemplated by the Commission.
(d) The Representative shall have received an opinion of in-house counsel
to the Depositor, BFFC and BMW Financial Services, addressed to the
Representative, dated the Closing Date and satisfactory in form and substance to
the Representative and counsel to the Underwriters, to the effect that:
(i) Each of BMW Financial Services, BFFC and the Depositor
has been duly formed and is validly existing as a limited liability company
or corporation in good standing under the laws of the jurisdiction of its
formation, and has the power and authority to own its properties and to
conduct its business as presently conducted, and to enter into and perform
its obligations under this Agreement and the Transaction Documents, and had
at all relevant times, and now has, the power and authority to acquire,
own, sell and service the Receivables and the related Collateral.
(ii) Each of this Agreement and each Transaction Document
has been duly authorized, executed and delivered by the Depositor, BFFC and
BMW Financial Services, as applicable.
13
(iii) Each of the Depositor, BFFC and BMW Financial Services
is duly qualified to do business and is in good standing, and has obtained
all necessary licenses, in each jurisdiction in which failure to so qualify
or obtain such licenses would have a material adverse affect upon its
business or the ownership of its property.
(iv) Neither: (A) the transfer of the Receivables from BFFC
to BMW Financial Services pursuant to the Xxxx of Sale, (B) the transfer of
the Receivables from BMW Financial Services to the Depositor pursuant to
the Receivables Purchase Agreement, (C) the transfer of the Receivables
from the Depositor to the Trust pursuant to the Sale and Servicing
Agreement, (D) the assignment of the Collateral from BFFC to BMW Financial
Services, from BMW Financial Services to the Depositor and thereafter to
the Trust, (E) the assignment of its rights under the Receivables Purchase
Agreement by the Depositor to the Trust, (F) the grant of the security
interest in the Receivables and the Collateral by the Trust to the
Indenture Trustee pursuant to the Indenture, (G) the execution and delivery
of this Agreement and the Transaction Documents by BMW Financial Services,
(H) the execution and delivery of this Agreement, the Transaction Documents
and the Notes by the Depositor, (I) the execution and delivery of the Xxxx
of Sale by BFFC, (J) the consummation of any transactions contemplated in
this Agreement or the Transaction Documents, nor (K) the fulfillment of the
terms of this Agreement, the Transaction Documents or the Notes by BMW
Financial Services, BFFC or the Depositor, as the case may be, will
conflict with, or result in a breach, violation or acceleration of, or
constitute a default under, any term or provision of the certificate of
formation and limited liability company agreement of BMW Financial Services
or the Depositor or articles of incorporation or by-laws of BFFC or of any
indenture or other material agreement or instrument to which either of them
is a party or by which any of them or their respective properties is bound,
or result in a violation, or contravene the terms, of any statute, order or
regulation applicable to either of them of any court, regulatory body,
administrative agency or governmental body having jurisdiction over such
person.
(v) There are no actions, proceedings or suits pending or,
to the best of such counsel's knowledge after due inquiry, threatened
before any court, administrative agency or other tribunal: (A) that might
materially and adversely affect the performance by the Depositor of its
obligations under this Agreement or the Transaction Documents, (B) that
might materially and adversely affect the performance by BMW Financial
Services of its obligations under this Agreement or the Transaction
Documents or (C) that might materially and adversely affect the performance
by BFFC of its obligations under the Transaction Documents.
(vi) Such counsel is familiar with BMW Financial Services'
standard operating procedures relating to its acquisition of a perfected
first priority security interest in the vehicles financed by it pursuant to
retail installment sale contracts in the ordinary course of its business.
Assuming that its standard procedures are followed with respect to the
perfection of security interests in the Vehicles (and such counsel has no
reason to believe that BMW Financial Services has not followed its standard
procedures in all material respects in connection with the perfection of
security interests in the Vehicles), BMW Financial Services has acquired or
will acquire a perfected first priority
14
security interest in the Vehicles. Neither such security interest nor the
perfection of such security interest shall be adversely affected by the
transfer of the Receivables to the Depositor, the Trust or the pledge
thereof to the Indenture Trustee.
(vii) To such counsel's knowledge, no consent, approval,
authorization or order of any court or governmental agency or body is
required for the consummation of the transactions contemplated in this
Agreement and the Transaction Documents.
(e) The Representative shall have received an opinion of Weil, Gotshal &
Xxxxxx LLP, counsel to the Depositor, BFFC, BMW Financial Services and the
Trust, addressed to the Representative, dated the Closing Date and satisfactory
in form and substance to the Representative and counsel to the Underwriters, to
the effect that:
(i) Each of this Agreement and the Transaction Documents is
the legal, valid and binding obligation of BMW Financial Services, BFFC and
the Depositor, as the case may be, enforceable against them in accordance
with its terms: (A) subject to applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium or other similar laws
affecting creditors' rights and remedies generally, and (B) subject, as to
enforceability, to general principles of equity, including principles of
commercial reasonableness, good faith and fair dealing (regardless of
whether enforcement is sought in a proceeding at law or in equity).
(ii) The Notes, when duly executed and delivered by the
Owner Trustee on behalf of the Trust, authenticated by the Indenture
Trustee and delivered and paid for pursuant to this Agreement, will be
entitled to the benefits of the Indenture and will be valid and binding
obligations of the Trust, enforceable in accordance with their terms,
subject to: (A) applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or other similar laws affecting creditors'
rights and remedies generally, and (B) to general principles of equity,
including principles of commercial reasonableness, good faith and fair
dealing (regardless of whether enforcement is sought in a proceeding at law
or in equity).
(iii) The statements contained in the Prospectus and any
supplement thereto under the headings "Summary of Terms," "The Notes" and
"Payments on the Notes," insofar as such statements constitute a summary of
the Notes and the Transaction Documents, constitute a fair summary of such
documents and the statements in the Prospectus under the heading "Certain
Legal Aspects of the Receivables," to the extent they constitute statements
of matters of law or legal conclusions, are correct in all material
respects.
(iv) Neither the Trust nor the Depositor is, or as a result
of the offering and sale of the Notes will be, required to be registered
under the Investment Company Act.
(v) The Indenture has been duly qualified under the Trust
Indenture Act.
15
(vi) The Trust Agreement need not be qualified under the
Trust Indenture Act.
(vii) The Receivables Purchase Agreement constitutes a grant
by BMW Financial Services to the Depositor of a valid security interest in
the Receivables and other property granted to the Depositor pursuant
thereto and the proceeds of the foregoing.
(viii) The Sale and Servicing Agreement constitutes a grant by
the Depositor to the Trust of a valid security interest in the Receivables
and other property granted to the Trust pursuant thereto and the proceeds
of the foregoing.
(ix) The Indenture is effective to create a valid security
interest in favor of the Indenture Trustee in the Trust's interest in the
Trust Estate and in the Collateral, as such term is defined in the
Indenture (including the property held in the Reserve Account) and the
proceeds of each of the foregoing, which security interest in the Money,
Instruments, Clearing Corporation Securities, Certificated Securities (as
such terms are defined in the UCC as in effect in the State of New York)
and federal book-entry securities on deposit in the Reserve Account
constitutes a perfected security interest therein. No other security
interest of any other creditor will be equal or prior to the security
interest of the Indenture Trustee.
(x) The Registration Statement became effective under the
Act on April 17, 2003 and, to the best of such counsel's knowledge, no stop
order suspending the effectiveness of the Registration Statement or any
part thereof or any amendment thereto has been issued under the Act and no
proceeding for that purpose has been instituted or threatened by the
Commission.
(xi) The Registration Statement relating to the Notes as of
its effective date and the Prospectus as of the date of this Agreement, and
any amendment or supplement thereto, as of its date, complied as to form in
all material respects with the requirements of the Act and the applicable
Rules and Regulations. Such counsel need express no opinion with respect to
the financial statements, the exhibits, annexes and other financial,
statistical, accounting, numerical or portfolio data, economic conditions
or financial condition of the portfolio information included in or
incorporated by reference into the Registration Statement relating to the
Notes, the Prospectus and the Trustee's statement of eligibility on Form
T-1, or any amendment or supplement thereto.
(xii) Such counsel shall state that they have participated in
the preparation of the Registration Statement and the Prospectus, and that
no facts have come to their attention which cause them to believe that the
Registration Statement relating to the Notes as of its effective date, and
the Prospectus, as of its date, and any amendment or supplement thereto, as
of its date when it became effective, contained any untrue statement of a
material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading or that
the Prospectus on its date contained or on the Closing Date contains, any
untrue statement of a material fact necessary in order to make the
statements therein, in the light of the circumstances under
16
which they were made, not misleading; provided that such counsel need not
express any view with respect to the financial, statistical accounting or
computational material included in or incorporated by reference into the
Registration Statement relating to the Notes, the Prospectus or any
amendment or supplement thereto or any Underwriters' Information.
(xiii) Assuming due authorization, the Indenture, when duly
authorized, executed and delivered by the Trust and the Indenture Trustee,
will constitute a valid and binding obligation of the Trust, enforceable
against the Trust in accordance with its terms, subject to applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium
and similar laws affecting creditors' rights and remedies generally, and
subject, as to enforceability, to general principles of equity, including
principles of commercial reasonableness, good faith and fair dealing
(regardless of whether enforcement is sought in a proceeding at law or in
equity) and certain remedial provisions of the Indenture are or may be
unenforceable in whole or in part under the laws of the State of New York,
but the inclusion of such provisions does not affect the validity of the
Indenture, and the Indenture contains adequate provisions for the practical
realization of the rights and benefits afforded thereby.
Such opinion may contain such assumptions, qualifications and limitations
as are customary in opinions of this type and are reasonably acceptable to
counsel to the Underwriters. In rendering such opinion, such counsel may state
that they express no opinion as to the laws of any jurisdiction other than the
federal law of the United States and the laws of the State of New York.
(f) Xxxxxxxx Xxxx LLP, in its capacity as counsel to BMW Financial
Services, the Depositor and the Trust, shall have delivered an opinion addressed
to the Representative, dated the Closing Date and satisfactory in form and
substance to the Representative and counsel to the Underwriters, to the effect
that so long as BMW Financial Services has and continuously retains possession
in the State of Ohio of all promissory notes and tangible chattel paper
comprised in the Receivables:
(i) The Receivables are "tangible chattel paper" or
"promissory notes" as defined in the UCC as in effect in the State of New
York and the State of Ohio.
(ii) At and after the time of the transfer thereof from the
Trust to the Indenture Trustee, the security interest of the Indenture
Trustee in such promissory notes and tangible chattel paper arising under
the Indenture will constitute a perfected security interest in such
promissory notes and tangible chattel paper, subject to no prior or equal
liens which may be perfected by the filing of a financing statement or by
taking possession of such promissory notes and/or chattel paper.
(g) Weil, Gotshal & Xxxxxx LLP, in its capacity as federal tax and ERISA
counsel to the Depositor and the Trust, shall have delivered an opinion
satisfactory in form and substance to the Representative and counsel to the
Underwriters, dated the Closing Date and addressed to the Representative, to the
effect that the statements in the Prospectus Supplement under the headings
"Summary of Terms--Tax Status" and "Material Income Tax Consequences" and in the
Base
17
Prospectus under the headings "Summary of Terms--Tax Status" and "Material
Income Tax Consequences" to the extent they constitute matters of law or legal
conclusions are correct in all material respects, and the statements in the
Prospectus Supplement under the headings "Summary of Terms--ERISA Considerations
and "ERISA Considerations" and in the Base Prospectus under the headings
"Summary of Terms--ERISA Considerations" and "ERISA Considerations" have been
prepared or reviewed by such counsel and, to the extent they constitute matters
of law or legal conclusions, provide a fair summary all material respects with
respect to such conclusions.
(h) Weil, Gotshal & Xxxxxx LLP, in its capacity as counsel to the
Depositor and the Trust, shall have delivered an opinion satisfactory in form
and substance to the Representative and counsel to the Underwriters, dated the
Closing Date and addressed to the Representative, with respect to (i) the
consolidation of the assets and liabilities of the Depositor with those of BMW
Financial Services under the doctrine of substantive consolidation, (ii) the
characterization as a "true sale" of the sale of the Receivables from BMW
Financial Services to the Depositor and (iii) the validity of the Notes and such
other related matters as the Underwriter shall reasonably require and the
Depositor shall have furnished or caused to be furnished to such counsel such
documents as they may reasonably request for the purpose of enabling them to
pass upon such matters. Such opinions shall be limited to the laws of the State
of New York and United States federal law.
(i) The Representative shall have received an opinion of Thacher, Xxxxxxxx
& Xxxx LLP, counsel to the Indenture Trustee, addressed to the Representative,
dated the Closing Date and satisfactory in form and substance to the
Representative and counsel to the Underwriters, to the effect that:
(i) The Indenture Trustee has been legally organized under
the laws of the United States and, based upon a certificate of good
standing issued by the Comptroller of the Currency, is validly existing as
a banking association in good standing under the laws of the United States,
and has the requisite entity power and authority to execute and deliver
each Transaction Document to which it is a party and to perform its
obligations thereunder.
(ii) Each of the Transaction Documents to which the
Indenture Trustee is a party (to the extent that the laws of the State of
New York are designated therein as the governing law thereof), assuming the
necessary authorization, execution and delivery thereof by the parties
thereto (other than any party as to which such counsel opine to that effect
herein) and the enforceability thereof against the other parties thereto,
is a valid and legally binding agreement under the laws of the State of New
York, enforceable thereunder in accordance with its terms against the
Indenture Trustee.
(iii) With respect to the Indenture Trustee, the performance
of its obligations under each of the Transaction Documents to which it is a
party and the consummation of the transactions contemplated thereby do not
require any consent, approval, authorization or order of, filing with or
notice to any United States federal or State of New York court, agency or
other governmental body under any United States federal or State of New
York statute or regulation that in such counsel's experience is
18
normally applicable to transactions of the type contemplated by the
Transaction Documents, except such as may be required under the securities
laws of any State of the United States or such as have been obtained,
effected or given.
(iv) The Notes have been duly authenticated and delivered by
the Indenture Trustee in accordance with the Indenture.
(v) With respect to the Indenture Trustee, the performance
of its obligations under each of the Transaction Documents to which it is a
party and the consummation of the transactions contemplated thereby will
not result in any breach or violation of its certificate of incorporation
or bylaws
(vi) With respect to the Indenture Trustee, the performance
of its obligations under each of the Agreements to which it is a party and
the consummation of the transactions contemplated thereby will not result
in any breach or violation of any United States federal or State of New
York statute or regulation that in such counsel's experience is normally
applicable to transactions of the type contemplated by the Transaction
Documents.
(vii) With respect to the Indenture Trustee, to such
counsel's knowledge, there is no legal action, suit, proceeding or
investigation before any court, agency or other governmental body pending
or threatened (by written communication to it of a present intention to
initiate such action, suit or proceeding) against it, which, either in one
instance or in the aggregate, draws into question the validity of, seeks to
prevent the consummation of any of the transactions contemplated by or
would impair materially its ability to perform its obligations under any of
the Transaction Documents to which it is a party.
(j) The Representative shall have received an opinion of Xxxxxxxx,
Xxxxxx & Finger, P.A., counsel to the Owner Trustee, addressed to the
Representative, dated the Closing Date and satisfactory in form and substance to
the Representative and counsel to the Underwriters, to the effect that:
(i) The Owner Trustee is duly incorporated and validly
existing as a banking corporation in good standing under the laws of the
State of Delaware.
(ii) The Owner Trustee has the power and authority to
execute, deliver and perform the Trust Agreement and to consummate the
transactions contemplated thereby.
(iii) The Trust Agreement has been duly authorized, executed
and delivered by the Owner Trustee and constitutes a legal, valid and
binding obligation of the Owner Trustee, enforceable against the Owner
Trustee, in accordance with its terms.
(iv) Neither the execution, delivery and performance by the
Owner Trustee of the Trust Agreement, nor the consummation by the Owner
Trustee of the transactions contemplated thereby, nor compliance with the
terms thereof conflict with or result in a breach of, or constitute a
default under the provisions of, the Owner Trustee's
19
certificate of incorporation or bylaws or any law, rule or regulation of
the State of Delaware or the United States governing the trust powers of
the Owner Trustee or, to such counsel's knowledge without independent
investigation, any judgment or order applicable to the Owner Trustee or its
properties or, to such counsel's knowledge without independent
investigation, any indenture, mortgage, contract or other agreement or
instrument to which the Owner Trustee is a party or by which it is bound.
(v) No consent, approval or other authorization of, or
registration, declaration or filing with, any court or governmental agency
or commission of the State of Delaware is required by or with respect to
the Owner Trustee for the valid execution and delivery of the Trust
Agreement, or for the validity or enforceability thereof, other than the
filing of the certificate of trust.
(k) The Representative shall have received an opinion of Xxxxxxxx,
Xxxxxx & Finger, P.A., special Delaware counsel to the Trust, addressed to the
Representative, dated the Closing Date and satisfactory in form and substance to
the Representative and counsel to the Underwriters, to the effect that:
20
(i) The Trust has been duly formed and is validly existing
and in good standing as a statutory trust under the Delaware Statutory
Trust Act, 12 Del. C. Section 3801, et seq. (the "Statutory Trust Act"),
and has the power and authority under the Trust Agreement and the Act to
execute, deliver and perform its obligations under the Transaction
Documents.
(ii) The Transaction Documents and the Notes have been duly
authorized, executed and delivered by the Trust.
(iii) The Trust Agreement is a legal, valid and binding
obligation of the Depositor and the Owner Trustee, enforceable against the
Depositor and the Owner Trustee, in accordance with its terms.
(iv) Neither the execution, delivery and performance by the
Trust of the Transaction Documents, nor the consummation by the Trust of
any of the transactions contemplated thereby, requires the consent or
approval of, the withholding of objection on the part of, the giving of
notice to, the filing, registration or qualification with, or the taking of
any other action in respect of, any governmental authority or agency of the
State of Delaware, other than the filing of the certificate of trust with
the Secretary of State.
(v) Neither the execution, delivery and performance by the
Trust of the Transaction Documents, nor the consummation by the Trust of
the transactions contemplated thereby, is in violation of the Trust
Agreement or of any law, rule or regulation of the State of Delaware
applicable to the Trust.
(vi) Under Section 3805(b) of the Statutory Trust Act, no
creditor of any Certificateholder shall have any right to obtain possession
of, or otherwise exercise legal or equitable remedies with respect to, the
property of the Trust except in accordance with the terms of the Trust
Agreement.
(vii) Under the Statutory Trust Act, the Trust is a separate
legal entity and, assuming that the Sale and Servicing Agreement conveys
good title to the Trust property to the Trust as a true sale and not as a
security arrangement, the Trust rather than the holders of the Certificates
will hold whatever title to the Trust property as may be conveyed to it
from time to time pursuant to the Sale and Servicing Agreement, except to
the extent that the Trust has taken action to dispose of or otherwise
transfer or encumber any part of the Trust property.
(viii) Under Section 3805(c) of the Statutory Trust Act,
except to the extent otherwise provided in the Trust Agreement, a holder of
a Certificate (including the Depositor in its capacity as such) has no
interest in specific Trust property.
(ix) The Certificate has been duly authorized and executed
by the Trust, authenticated by the Owner Trustee and, when delivered in
accordance with the terms of the Trust Agreement, the Certificate will be
validly issued and entitled to the benefits of the Trust Agreement.
21
(x) The Financing Statements are in appropriate forms for
filing in the State of Delaware.
(xi) Insofar as Article 9 of the Uniform Commercial Code as
in effect in the State of Delaware on the date hereof (the "Delaware UCC")
is applicable (without regard to conflict of laws principles), upon the
filing of the BMW Financial Services Financing Statement with the Secretary
of State of Delaware (the "Division"), the Depositor will have a perfected
security interest in BMW Financial Services' rights in that portion of the
Receivables (as defined in the Receivables Purchase Agreement) described in
the BMW Financial Services Financing Statement that may be perfected by the
filing of a UCC financing statement with the Division (the "BMW Financial
Filing Collateral") and the proceeds (as defined in Section 9-102(a)(64) of
the Delaware UCC) thereof. Such counsel note that the Depositor has
assigned such security interest to the Indenture Trustee.
(xii) Insofar as Article 9 of the Delaware UCC is applicable
(without regard to conflict of laws principles), upon the filing of the BMW
Securities Financing Statement with the Division, the Trust will have a
perfected security interest in the Depositor's rights in that portion of
the Receivables (as defined in the Sale and Servicing Agreement) described
in the BMW Securities Financing Statement that may be perfected by the
filing of a UCC financing statement with the Division (the "BMW Securities
Filing Collateral") and the proceeds (as defined in Section 9-102(a)(64) of
the Delaware UCC) thereof. Such counsel note that the Trust has assigned
such security interest to the Indenture Trustee.
(xiii) Insofar as Article 9 of the Delaware UCC is applicable
(without regard to conflict of laws principles), upon the filing of the
Trust Financing Statement with the Division, the Indenture Trustee will
have a perfected security interest in the Trust's rights in that portion of
the Receivables (as defined in the Indenture) described in the Trust
Financing Statement that may be perfected by the filing of a UCC financing
statement with the Division (the "Trust Filing Collateral", and together
with the BMW Financial Filing Collateral and the BMW Securities Filing
Collateral, the "Filing Collateral") and the proceeds (as defined in
Section 9-102(a)(64) of the Delaware UCC) thereof; and such security
interest will be prior to any other security interest in the Receivables
(as defined in the Indenture) granted by the Trust that is perfected solely
by the filing of the financing statements with the Division under the
Delaware UCC. Such counsel note that under Section 9-301(3)(c) of the
Delaware UCC, the local law of the jurisdiction where tangible "chattel
paper" is located governs the effect of perfection or nonperfection and the
priority of a nonpossessory security interest in such collateral.
(l) XxXxx Xxxxxx LLP, counsel to the Underwriters, shall have furnished to
the Representative such opinion or opinions, dated the Closing Date, with
respect to certain securities law issues and other related matters as the
Representative may reasonably request, and such counsel shall have received such
papers and information as they may reasonably request to enable them to be based
upon such matters.
22
(m) Xxxxxx Xxxx, LLP, in its capacity as special counsel to BMW Financial
Services and the Depositor, shall have delivered an opinion satisfactory in form
and substance to the Representative and counsel to the Underwriters, dated the
Closing Date and addressed to the Representative, to the effect that, (i) with
respect to the security interest of BMW Financial Services in the Financed
Vehicles created by a Receivable that originated in the State of California
(each, a "California Receivable"), no filing or other action is necessary to
perfect or continue the perfected status of such security interest as against
creditors of or transferees from the Obligor under such California Receivable
and (ii) as more fully described under the heading "Consumer Protection Laws" in
the Base Prospectus, in the opinion of such counsel, each California Receivable
is enforceable under the laws of the State of California and all applicable
federal laws. Such opinion may contain such assumptions, qualifications and
limitations as are customary in opinions of this type and are reasonably
acceptable to counsel to the Underwriters.
(n) The Representative shall have received copies of each opinion of
counsel delivered to any rating agency, together with a letter addressed to the
Representative, dated the Closing Date, to the effect that the Underwriters may
rely on each such opinion to the same extent as though such opinion was
addressed to each as of its date.
(o) The Representative shall have received certificates dated the Closing
Date of any two of the President, Chief Financial Officer, any Vice President,
the Controller or the Treasurer of the Depositor and BMW Financial Services in
which such officers shall state that: (i) the representations and warranties
made by such entity contained in the Transaction Documents and this Agreement
are true and correct, that such party has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied under such
agreements on or before the Closing Date, (ii) since the date of this Agreement
there has not occurred any material adverse change, or any development involving
a prospective material adverse change, in or affecting the condition, financial
or otherwise, or in the earnings, business or operations of the Trust, the
Depositor or BMW Financial Services except as disclosed to the Representative in
writing and (iii) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or are contemplated by the Commission.
(p) The Representative shall have received evidence satisfactory to the
Representative that, on or before the Closing Date, UCC-1 financing statements,
or in the case of the sale from BFFC to BMW Financial Services UCC-3 financing
statements, have been or are being filed in all applicable governmental offices
reflecting (i) the transfer of the interest of BFFC in the Receivables and the
proceeds thereof to BMW Financial Services pursuant to the Xxxx of Sale, (ii)
the transfer of the interest of BMW Financial Services in the Xxxx of Sale and
the Receivables, and the proceeds thereof to the Depositor pursuant to the
Receivables Purchase Agreement, (iii) the transfer of the interest of the
Depositor in the Xxxx of Sale and the Receivables Purchase Agreement, the
Receivables, and the proceeds thereof to the Trust pursuant to the Sale and
Servicing Agreement, and (iv) the grant by the Trust to the Indenture Trustee
under the Indenture of a security interest in the interest of the Trust in the
Xxxx of Sale, the Receivables Purchase Agreement, the Receivables, the
Collateral and the proceeds thereof.
(q) The Class A-1 Notes shall have been rated "Prime-1" by Xxxxx'x
Investors Service, Inc. ("Moody's") and "A-1+" by Standard and Poor's, a
division of The XxXxxx-Xxxx
23
Companies, Inc. ("Standard & Poor's") and Fitch Ratings ("Fitch"). The Class A-2
Notes, Class A-3 Notes and Class A-4 Notes shall each have been rated "Aaa" by
Moody's and "AAA" by Standard & Poor's and Fitch. The Class B Notes shall have
been rated "A" by Standard & Poor's and Fitch.
(r) The Representative shall have received, from each of BMW Financial
Services and the Depositor, a certificate executed by a secretary or assistant
secretary thereof to which shall be attached certified copies of the: (i)
certificate of formation, (ii) limited liability company agreement, (iii)
applicable resolutions authorizing the transactions contemplated hereby and in
the Transaction Documents and (iv) designation of incumbency of each such
entity.
The Depositor shall provide or cause to be provided to the Representative
conformed copies of such opinions, certificates, letters and documents as the
Representative or counsel to the Underwriters may reasonably request.
SECTION 8. Termination. This Agreement shall be subject to termination in
the sole discretion of the Representative by notice to the Depositor given on or
prior to the Closing Date in the event that the Depositor shall have failed,
refused or been unable to perform all obligations and satisfy all conditions on
its part to be performed or satisfied hereunder at or prior thereto or, if at or
prior to the Closing Date, (a) trading in securities generally on the New York
Stock Exchange shall have been suspended or materially limited or minimum or
maximum prices shall have been established by or on, as the case may be, the
Securities and Exchange Commission or the New York Stock Exchange; (b) trading
of any securities of the Depositor or any affiliate of the Depositor shall have
been suspended on any exchange or in any over-the-counter market; (c) a general
moratorium on commercial banking activities shall have been declared by either
federal, New Jersey State authorities or New York State authorities; (d) there
shall have occurred (i) an outbreak or escalation of hostilities between the
United States and any foreign power, (ii) an outbreak or escalation of any other
insurrection or armed conflict involving the United States, or (iii) any other
calamity or crisis or materially adverse change in general economic, political
or financial conditions having an effect on the U.S. financial markets that, in
the sole judgment of the Representative, makes it impractical or inadvisable to
proceed with the offering or the delivery of the Notes as contemplated by the
Prospectus, as amended as of the date hereof; (e) any change, or any development
involving a prospective change, in or affecting the Receivables or particularly
the business or properties of the Trust, the Depositor or BMW Financial Services
shall have occurred which, in the judgment of the Representative, materially
impairs the investment quality of the Notes or makes it impractical or
inadvisable to market the Notes; or (f) any downgrading in the rating of any
debt securities of the Depositor or any of its Affiliates, if any, by any
"nationally recognized statistical rating organization" (as defined for purposes
of Rule 436(g) under the Act), or any public announcement that any such
organization has under surveillance or review its rating of any such debt
securities (other than an announcement with positive implications of a possible
upgrading, and no implication of a possible downgrading, of such rating) shall
have occurred. Termination of this Agreement pursuant to this Section 8 shall be
without liability of any party to any other party except for the liability of
the Depositor in relation to expenses as provided in Section 6 hereof, the
indemnity provided in Section 9 hereof and any liability arising before or in
relation to such termination.
24
SECTION 9. Indemnification and Contribution.
(a) The Depositor and BMW Financial Services will, jointly and severally,
indemnify and hold harmless each Underwriter, the directors, officers, employees
and agents of each Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act against any and all losses, claims, damages or liabilities, joint
or several, to which such Underwriter or such controlling person may become
subject under the Act, the Exchange Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon:
(i) any untrue statement or alleged untrue statement made
by the Depositor or BMW Financial Services in Section 2 hereof,
(ii) any untrue statement or alleged untrue statement of any
material fact contained or incorporated in the Registration Statement, the
preliminary prospectus, if any, the Computational Materials, if any, or the
Prospectus or any amendment or supplement thereto or
(iii) the omission or alleged omission to state in the
Registration Statement, the preliminary prospectus, if any, the
Computational Materials, if any, or the Prospectus or any amendment or
supplement thereto a material fact required to be stated therein or
necessary to make the statements therein, not misleading,
and will reimburse, as incurred, each such indemnified party for any legal or
other costs or expenses reasonably incurred by it in connection with
investigating, defending against or appearing as a third-party witness in
connection with any such loss, claim, damage, liability or action; provided,
however, that the Depositor and BMW Financial Services will not be liable in any
such case to the extent that any such loss, claim, damage or liability arises
out of or is based upon any untrue statement or alleged untrue statement or
omission or alleged omission made in the preliminary prospectus, if any, the
Computational Materials, if any, or the Prospectus or any amendment or
supplement thereto in reliance upon and in conformity with the Underwriters'
Information; provided, further, that the Depositor and BMW Financial Services
shall not be liable to any Underwriter or any of the directors, officers,
employees and agents of an Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act with respect to any loss, claim, damage or liability that results
from the fact that the Underwriter sold Notes to a person to whom there was not
sent or given, at or prior to the written confirmation of such sale, if delivery
thereof was required, a copy of the Prospectus or of the Prospectus as then
amended or supplemented, whichever is most recent, if the Depositor has
previously furnished copies thereof to such Underwriter. The indemnity provided
for in this Section 9 shall be in addition to any liability which the Depositor
and BMW Financial Services may otherwise have. The Depositor and BMW Financial
Services will not, without the prior written consent of the Representative,
settle or compromise or consent to the entry of any judgment in any pending or
threatened claim, action, suit or proceeding in respect of which indemnification
may be sought hereunder (whether or not the Representative or any person who
controls the Representative is a party to such claim, action, suit or
proceeding), unless such settlement, compromise or consent (i) includes an
unconditional release of all of the Underwriters and such controlling persons
from all liability
25
arising out of such claim, action, suit or proceeding and (ii) does not include
a statement as to or admission of, fault, culpability or a failure to act by or
on behalf of any Underwriter or controlling person.
(b) Each Underwriter, severally and not jointly, will indemnify and hold
harmless each of the Depositor and BMW Financial Services, each of its directors
and officers and each person, if any, who controls the Depositor or BMW
Financial Services within the meaning of Section 15 of the Act or Section 20 of
the Exchange Act against any losses, claims, damages or liabilities to which the
Depositor, BMW Financial Services or any such director, officer or controlling
person may become subject under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon (i) any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement (or any amendment thereto)
or the preliminary prospectus, if any, the Computational Materials, if any, or
the Prospectus (or any amendment or supplement thereto) or (ii) the omission or
the alleged omission to state in the Registration Statement (or any amendment
thereto) or the preliminary prospectus, if any, the Computational Materials, if
any, or the Prospectus (or any amendment or supplement thereto) a material fact
required to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission was made
in reliance upon and in conformity with the Underwriters' Information, and,
subject to the limitation set forth immediately preceding this clause, will
reimburse, as incurred, any legal or other expenses reasonably incurred by the
Depositor, BMW Financial Services or any such director, officer or controlling
person in connection with investigating, defending against or appearing as a
third-party witness in connection with any such loss, claim, damage, liability
or any action in respect thereof. The remedies provided for in this Section 9
are not exclusive and shall not limit any rights or remedies which may otherwise
be available to any indemnified party at law or in equity.
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to paragraph (a) or (b) of this Section 9, such person (for
purposes of this paragraph (c), the "indemnified party") shall, promptly after
receipt by such party of notice of the commencement of such action, notify the
person against whom such indemnity may be sought (for purposes of this paragraph
(c), the "indemnifying party"), but the failure to so notify the indemnifying
party will not relieve it from any liability which it may have to any
indemnified party (i) under paragraph (a) or (b) of this Section 9 unless and to
the extent it did not otherwise learn of such action and such failure results in
the forfeiture by the indemnifying party of substantial rights and defenses or
(ii) otherwise than under this Section 9. In case any such action is brought
against any indemnified party, and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
therein and, to the extent that it may wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party (which may be counsel to such
indemnifying party if otherwise reasonably acceptable to the indemnified party);
provided, however, that if the defendants in any such action include both the
indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be one or more legal defenses available
to it and/or other indemnified parties which are different from or additional to
those available to the indemnifying party, the indemnifying party shall not
26
have the right to direct the defense of such action on behalf of such
indemnified party or parties and such indemnified party or parties shall have
the right to select separate counsel to defend such action on behalf of such
indemnified party or parties. After notice from the indemnifying party to such
indemnified party of its election so to assume the defense of any such action
and approval by such indemnified party of counsel appointed to defend such
action, the indemnifying party will not be liable to such indemnified party
under this Section 9 for any legal or other expenses, other than reasonable
costs of investigation, subsequently incurred by such indemnified party in
connection with the defense thereof, unless (i) the indemnified party shall have
employed separate counsel in accordance with the proviso to the next preceding
sentence (it being understood, however, that in connection with such action the
indemnifying party shall not be liable for the expenses of more than one
separate counsel (in addition to local counsel in each applicable local
jurisdiction) in any one action or separate but substantially similar actions
arising out of the same general allegations or circumstances, designated in
writing by the Representative in the case of paragraph (a) of this Section 9,
representing the indemnified parties under such paragraph (a) who are parties to
such action or actions), or (ii) the indemnifying party does not promptly retain
counsel satisfactory to the indemnified party, or (iii) the indemnifying party
has authorized the employment of counsel for the indemnified party at the
expense of the indemnifying party. All fees and expenses reimbursed pursuant to
this paragraph (c) shall be reimbursed as they are incurred. After such notice
from the indemnifying party to such indemnified party, the indemnifying party
will not be liable for the costs and expenses of any settlement of such action
effected by such indemnified party without the consent of the indemnifying
party.
(d) In circumstances in which the indemnity agreement provided for in the
preceding paragraphs of this Section 9 is unavailable or insufficient, for any
reason, to hold harmless an indemnified party in respect of any losses, claims,
damages or liabilities (or actions in respect thereof), each indemnifying party,
in order to provide for just and equitable contribution, shall contribute to the
amount paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect (i) the relative benefits received by
the indemnifying party or parties on the one hand and the indemnified party on
the other from the offering of the Notes or (ii) if the allocation provided by
the foregoing clause (i) is not permitted by applicable law, not only such
relative benefits but also the relative fault of the indemnifying party or
parties on the one hand and the indemnified party on the other in connection
with the statements or omissions or alleged statements or omissions that
resulted in such losses, claims, damages or liabilities (or actions in respect
thereof), as well as any other relevant equitable considerations. The relative
benefits received by the Depositor and BMW Financial Services on the one hand
and the Underwriters on the other shall be deemed to be in the same proportion
as the total proceeds from the offering of the Notes (before deducting expenses)
received by the Depositor bear to the total discounts and commissions received
by the Underwriters (the "Spread"), in each case as set forth in the Prospectus
Supplement. The relative fault of the parties shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Depositor, BMW Financial Services or the
Underwriters, the parties' relative intents, knowledge, access to information
and opportunity to correct or prevent such statement or omission, and any other
equitable considerations appropriate in the circumstances. The Depositor, BMW
Financial Services and the Underwriters agree that it would not be equitable if
the amount of such
27
contribution were determined by pro rata or per capita allocation (even if the
Underwriters were treated as one entity for such purpose) or by any other method
of allocation that does not take into account the equitable considerations
referred to above in this paragraph (d). Notwithstanding any other provision of
this paragraph (d), no Underwriter shall be obligated to make contributions
hereunder that in the aggregate exceed the amount by which the Spread received
by it in the initial offering of such Notes, less the aggregate amount of any
damages that such Underwriter has otherwise been required to pay in respect of
the same or any substantially similar claim, and no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute hereunder are
several in proportion to their respective principal amount of Securities they
have purchased hereunder, and not joint. For purposes of this paragraph (d),
each person, if any, who controls an Underwriter within the meaning of Section
15 of the Act or Section 20 of the Exchange Act, and each director, officer,
employee and agent of an Underwriter shall have the same rights to contribution
as such Underwriter, and each director of the Depositor and BMW Financial
Services, each officer of the Depositor and BMW Financial Services and each
person, if any, who controls the Depositor and BMW Financial Services within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, shall have
the same rights to contribution as the Depositor and BMW Financial Services.
SECTION 10. Defaults by an Underwriter. If any one or more Underwriter(s)
fail(s) to purchase and pay for any of the Notes agreed to be purchased by such
Underwriter(s) hereunder, and such failure constitutes a default in the
performance of its or their obligations under this Agreement, the remaining
Underwriter(s) shall be obligated severally to take up and pay for (in the
respective proportions that the amount of Notes set forth opposite their names
in Schedule I bears to the aggregate amount of Notes set forth opposite the
names of all the remaining Underwriter(s)) the Notes that the defaulting
Underwriter(s) agreed but failed to purchase; provided, however, that if the
aggregate amount of Notes that the defaulting Underwriter(s) agreed but failed
to purchase exceeds 10% of the aggregate principal amount of Notes, the
remaining Underwriter(s) shall have the right to purchase all, but shall not be
under any obligation to purchase any, of the Notes, and if such non-defaulting
Underwriter(s) do not purchase all the Notes, this Agreement will terminate
without liability to any non-defaulting Underwriter. In the event of a default
by any Underwriter as set forth in this paragraph, the Closing Date shall be
postponed for such period, not exceeding seven days, as the remaining
Underwriter(s) shall determine in order that the required changes in the
Prospectus or in any other documents or arrangements may be effected. Nothing
contained in this Agreement shall relieve any defaulting Underwriter(s) of any
liability to the Depositor, BMW Financial Services, their respective affiliates
and any non-defaulting Underwriter(s) for damages occasioned by its default
hereunder.
SECTION 11. Survival of Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements set
forth in or made pursuant to this Agreement or contained in certificates of
officers submitted pursuant hereto shall remain operative and in full force and
effect, regardless of any investigation or statement as to the results thereof,
and will survive delivery of and payment for the Notes. If for any reason the
purchase of the Notes by the Underwriters is not consummated, each of the
Depositor and BMW Financial Services shall remain responsible for the expenses
to be paid or reimbursed pursuant to Section 6
28
hereof and the obligations pursuant to Section 9 hereof shall remain in effect.
If for any reason the purchase of the Notes by the Underwriters is not
consummated, the Depositor and BMW Financial Services will reimburse the
Underwriters severally, upon demand, for all out-of-pocket expenses (including
fees and disbursements of counsel) incurred by any Underwriter in connection
with the offering of the Notes.
SECTION 12. Notices. In all dealings hereunder, the Representative shall
act on behalf of each of the Underwriters, and the parties hereto shall be
entitled to act and rely upon any statement, request, notice or agreement on
behalf of any Underwriter made or given by the Representative. Any notice or
notification in any form to be given under this Agreement may be delivered in
person or sent by telex, facsimile or telephone (subject in the case of a
communication by telephone to confirmation by telex or facsimile) addressed to:
in the case of the Depositor:
BMW FS Securities LLC
000 Xxxxxxxx Xxxxx Xxxx
Xxxxxxxxx Xxxx, Xxx Xxxxxx 00000
Facsimile: 000-000-0000
Telex: 000-000-0000
Attention: Vice President - Finance and Risk
in the case of BMW Financial Services:
BMW Financial Services NA, LLC
0000 Xxxxxxxxxx Xxxxxx
Xxxxxx, Xxxx 00000
Facsimile: (000) 000-0000
Telex: (000) 000-0000
Attention: Xxxxxxx Xxxx
in the case of the Representative:
Banc of America Securities LLC
Hearst Tower
000 Xxxxx Xxxxx Xxxxxx, 00/xx/ Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxx Xxxxxx
Any such notice shall take effect, in the case of delivery, at the time of
delivery and, in the case of telex or facsimile, at the time of dispatch.
SECTION 13. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto, their respective successors and agents, and the
directors, officers and control persons referred to in Section 9 hereof, and no
other person will have any rights or obligations hereunder.
29
SECTION 14. Miscellaneous.
(a) Time shall be of the essence of this Agreement.
(b) The headings herein are inserted for convenience of reference only and
are not intended to be part of, or to affect, the meaning or interpretation of
this Agreement.
(c) For purposes of this Agreement, (a) "business day" means any day on
which the New York Stock Exchange is open for trading, and (b) "subsidiary" has
the meaning set forth in Rule 405 under the Act.
(d) This Agreement may be executed in any number of counterparts, all of
which, taken together, shall constitute one and the same Agreement and any party
may enter into this Agreement by executing a counterpart.
(e) This Agreement shall inure to the benefit of and shall be binding upon
the several Underwriters, the Depositor, BMW Financial Services and their
respective successors and legal representatives, and nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any other
person any legal or equitable right, remedy or claim under or in respect of this
Agreement, or any provisions herein contained, this Agreement and all conditions
and provisions hereof being intended to be and being for the sole and exclusive
benefit of such persons and for the benefit of no other person, except that (i)
the indemnities of the Depositor and BMW Financial Services contained in Section
9 hereof shall also be for the benefit of any person or persons who control any
Underwriter within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act and (ii) the indemnities of the Underwriters contained in Section 9
hereof shall also be for the benefit of the directors of the Depositor and BMW
Financial Services, the officers of the Depositor and BMW Financial Services and
any person or persons who control the Depositor or BMW Financial Services within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act. No
purchaser of Notes from any Underwriter shall be deemed a successor because of
such purchase.
(f) The respective representations, warranties, agreements, covenants,
indemnities and other statements of the Depositor and BMW Financial Services,
their respective officers and the several Underwriters set forth in this
Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement shall remain in full force and effect, regardless of (i) any
investigation made by or on behalf of the Depositor or BMW Financial Services,
any of their respective officers, directors, employees or agents, any
Underwriter or any controlling person referred to in Section 9 hereof and (ii)
delivery of and payment for the Notes. The respective agreements, covenants,
indemnities and other statements set forth in Sections 5 and 9 hereof shall
remain in full force and effect, regardless of any termination or cancellation
of this Agreement.
SECTION 15. Severability. It is the desire and intent of the parties that
the provisions of this Agreement be enforced to the fullest extent permissible
under the law and public policies applied in each jurisdiction in which
enforcement is sought. Accordingly, in the event that any provision of this
Agreement would be held in any jurisdiction to be invalid, prohibited or
unenforceable for any reason, such provision, as to such jurisdiction, shall be
ineffective, without
30
invalidating the remaining provisions of this Agreement or affecting the
validity or enforceability of such provision in any other jurisdiction.
SECTION 16. GOVERNING LAW. THE VALIDITY AND INTERPRETATION OF THIS
AGREEMENT, AND THE TERMS AND CONDITIONS SET FORTH HEREIN, SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT
GIVING EFFECT TO ANY PROVISIONS RELATING TO CONFLICTS OF LAWS (OTHER THAN
SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW).
31
If the foregoing is in accordance with your understanding, please sign and
return to us five counterparts hereof, and upon the acceptance hereof by you, on
behalf of each of the Underwriters, this letter and such acceptance hereof shall
constitute a binding agreement among each of the Underwriters and the Depositor
and BMW Financial Services.
Very truly yours,
BMW FS SECURITIES LLC
By: /s/ Xxxxxx Xxxxxx
----------------------------------
Name: Xxxxxx Xxxxxx
Title: Treasurer
By: /s/ Xxxxx Xxxxxxx
----------------------------------
Name: Xxxxx Xxxxxxx
Title: Assistant Secretary
BMW FINANCIAL SERVICES NA, LLC
By: /s/ Xxxxxx Xxxxxx
----------------------------------
Name: Xxxxxx Xxxxxx
Title: Treasurer
By: /s/ Xxxxx Xxxxxxx
-----------------------------------
Name: Xxxxx Xxxxxxx
Title: Assistant Secretary
The foregoing Agreement is hereby confirmed and accepted as of the date
first above written.
BANC OF AMERICA SECURITIES LLC
on behalf of itself and as Representative of the
several Underwriters
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Principal
32
SCHEDULE I
Underwriter Class A-1 Notes Class A-2 Notes Class A-3 Notes Class A-4 Notes Class B Notes
------------------------------ --------------- --------------- --------------- --------------- -------------
Banc of America Securities LLC $ 133,025,000 $ 177,225,000 $ 199,750,000 $ 108,932,600 $ 16,760,500
X.X. Xxxxxx Securities Inc. $ 133,025,000 $ 177,225,000 $ 199,750,000 $ 108,933,600 $ 16,760,500
Barclays Capital Inc. $ 15,650,000 $ 20,850,000 $ 23,500,000 $ 12,851,600 --
Citigroup Global Markets Inc. $ 15,650,000 $ 20,850,000 $ 23,500,000 $ 12,851,600 --
Credit Suisse First Boston LLC $ 15,650,000 $ 20,850,000 $ 23,500,000 $ 12,851,600 --
Total $ 313,000,000 $ 417,000,000 $ 470,000,000 $ 256,312,000 $ 33,521,000
SCHEDULE II
Original
Principal Investor Investor
Security Balance $ Price % Price $ Price % Price $ Rate %
------------------------- --------------- ------------ ------------- ---------- --------- ------
Class A-1 Notes $ 313,000,000 100.000000% $ 313,000,000 0.07500% $ 234,750 1.18%
Class A-2 Notes $ 417,000,000 99.999313% $ 416,987,135 0.11000% $ 458,700 1.88%
Class A-3 Notes $ 470,000,000 99.997721% $ 469,989,289 0.16000% $ 752,000 2.67%
Class A-4 Notes $ 256,312,000 99.979589% $ 256,259,684 0.21500% $ 551,071 3.32%
Class B Notes $ 33,521,000 99.978098% $ 33,513,658 0.27000% $ 90,506 3.52%
Total Price to Public: $ 1,489,759,766
Total Price to Depositor: $ 1,487,672,739
Underwriting Discounts
and Commissions: $ 2,087,027
SCHEDULE III
UCC-1
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Office of
Debtor Secretary of State Secured Party
------------------------------ ------------------ ------------------------------------
BMW Financial Services NA, LLC Delaware BMW FS Securities LLC
BMW FS Securities LLC Delaware BMW Vehicle Owner Trust 2004-A
BMW Vehicle Owner Trust 2004-A Delaware Citibank, N.A., as Indenture Trustee
UCC-3
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BMW Financial Services NA, LLC Delaware
BMW FS Funding Corp. Delaware
