Exhibit 1.1
BMW VEHICLE OWNER TRUST 2005-A
$1,438,882,000 ASSET BACKED NOTES
BMW FS SECURITIES LLC
(DEPOSITOR)
UNDERWRITING AGREEMENT
March 14, 2005
Credit Suisse First Boston LLC,
as Representative of the
several Underwriters
Xxxxxx Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
SECTION 1. Introductory. BMW FS Securities LLC (the "Depositor")
proposes to cause BMW Vehicle Owner Trust 2005-A (the "Trust") to issue and sell
$324,000,000 principal amount of its 3.0336% Class A-1 Notes (the "Class A-1
Notes"), $457,000,000 principal amount of its 3.66% Class A-2 Notes (the "Class
A-2 Notes"), $361,000,000 principal amount of its 4.04% Class A-3 Notes (the
"Class A-3 Notes"), $264,507,000 principal amount of its 4.28% Class A-4 Notes
(the "Class A-4 Notes" and together with the Class A-1 Notes, the Class A-2
Notes and the Class A-3 Notes, the "Class A Notes") and $32,375,000 principal
amount of its 4.43% 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 Credit Suisse First Boston LLC is acting as
representative (the "Representative"). The Notes will be issued pursuant to an
Indenture, dated as of March 1, 2005 (the "Indenture"), between the Trust and
JPMorgan Chase Bank, 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 February 28, 2005 (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 March 1, 2005 (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
March 1, 2005 (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 February 10, 2005, as
amended and restated as of March 1, 2005 (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 March 1, 2005
(the "Receivables Purchase Agreement"), between the Depositor and BMW Financial
Services. BMW Financial Services will acquire the Receivables from BMW FS
Funding Corp. ("BFFC") pursuant to a Bill of Sale, dated as of March 1, 2005
(the "Bill of Sale"), between BFFC and BMW Financial Services.
Capitalized terms used but not otherwise defined herein shall have
the meanings set forth in the Sale and Servicing Agreement or the Indenture, as
the case may be. As used herein, the term "Transaction Documents" refers to the
Sale and Servicing Agreement, the Indenture, the Trust Agreement, the Bill of
Sale, the Receivables Purchase Agreement, the Owner Trust Administration
Agreement and the Note Depository Agreement.
SECTION 2. Representations and Warranties. (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. 333-122561), 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 March 9, 2005 included in
the Prospectus; the "Prospectus Supplement" means the prospectus supplement
dated the date hereof included in the Prospectus.
(ii) On the effective date of the Registration Statement, such
Registration Statement conformed in all respects to the requirements of the
Act and the rules and regulations of the Commission promulgated under the
Act (the "Rules and Regulations") and did not include any untrue statement
of a material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading, and on
the date of this Agreement the Registration Statement and the preliminary
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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 "Plan of
Distribution" 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 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).
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(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
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the offering by the Underwriters or (B) conflict with or result in a breach
or violation or acceleration of, or constitute a default under, any term or
provision of the organizational documents of the Depositor, BMW Financial
Services or BFFC, any indenture, mortgage, deed of trust, lease or other
agreement or instrument to which the Depositor, BMW Financial Services or
BFFC is a party or by which any of them or their properties is bound or
result in a violation of or contravene the terms of any statute, order or
regulation applicable to the Depositor, BMW Financial Services or BFFC of
any court, regulatory body, administrative agency, governmental body or
arbitrator having jurisdiction over the Depositor, BMW Financial Services
or BFFC, or will result in the creation of any lien upon any material
property or assets of the Depositor, BMW Financial Services or BFFC (other
than pursuant to the Transaction Documents).
(xiv) None of the Depositor, BMW Financial Services or BFFC is in
violation of any term or provision of its charter documents or by-laws, or
in breach of or in default under any statute or any judgment, decree,
order, rule or regulation of any court or other governmental authority or
any arbitrator applicable to the Depositor, BMW Financial Services or BFFC,
the consequence of which violation, breach or default would have (A) a
materially adverse effect on or constitute a materially adverse change in,
or constitute a development involving a prospective materially adverse
effect on or change in, the condition (financial or otherwise), earnings,
properties, business affairs or business prospects, net worth or results of
operations of the Depositor, BMW Financial Services or BFFC or (B) a
material and adverse effect on its ability to perform its obligations under
this Agreement or any of the Transaction Documents to which it is a party.
(xv) Neither the Depositor nor BMW Financial Services nor anyone
acting on their behalf has taken any action that would require registration
of the Depositor or the Trust under the Investment Company Act; nor will
the Depositor or BMW Financial Services act, nor has either of them
authorized nor will either of them authorize any person to act, in such
manner.
(xvi) The Depositor, BFFC and BMW Financial Services each possess all
consents, licenses, certificates, authorizations and permits issued by the
appropriate federal, state or foreign regulatory authorities necessary to
conduct their respective businesses, and none of the Depositor, BFFC or BMW
Financial Services has received any notice of proceedings relating to the
revocation or modification of any such certificate, authorization or permit
which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would have a material adverse effect on or
constitute a material adverse change in, or constitute a development
involving a prospective material adverse effect on or change in, the
condition (financial or otherwise), earnings, properties, business affairs
or business prospects, net worth or results of operations of the Depositor,
BFFC or BMW Financial Services, except as described in or contemplated by
the Prospectus.
(xvii) No legal or governmental proceedings are pending or threatened
to which the Depositor or BMW Financial Services is a party or to which the
property of the Depositor or BMW Financial Services is subject except for
such proceedings that would not, if the subject of any unfavorable
decision, ruling or finding, singly or in the aggregate, have a material
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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 Bill of Sale will vest in BMW
Financial Services all of BFFC's right, title and interest to the
Receivables.
(xxiv) BMW Financial Services' sale and assignment of the Receivables
to the Depositor pursuant to the Receivables Purchase Agreement will vest
in the Depositor all of BMW Financial Services' right, title and interest
to the Receivables.
(xxv) The Depositor's sale and assignment of the Receivables to the
Trust pursuant to the Sale and Servicing Agreement will vest in the Trust
all of the Depositor's right, title and interest to the Receivables,
including all of the Depositor's rights under the Receivables Purchase
Agreement.
(xxvi) The Trust's assignment of the Collateral to the Indenture
Trustee pursuant to the Indenture will vest in the Indenture Trustee, for
the benefit of the Noteholders, a first priority perfected security
interest therein, subject to no other outstanding Lien.
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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 Bill of Sale, BFFC is the sole owner of all right,
title and interest in, and has good and marketable title to the Receivables
and the other property to be transferred to BMW Financial Services. BFFC,
pursuant to the Bill of Sale, is transferring to BMW Financial Services
ownership of the Receivables, the security interest in the Vehicles
securing the Receivables and the proceeds of each of the foregoing, and,
immediately prior to the transfer thereof to the Depositor, BMW Financial
Services will be the sole owner of all right, title and interest in, and
will have good and marketable title to, the Receivables and the other
property to be transferred by it to the Depositor. BMW Financial Services,
pursuant to the Receivables Purchase Agreement, is transferring to the
Depositor ownership of the Receivables, the security interest in the
Vehicles securing the Receivables and the proceeds of each of the
foregoing, and, immediately prior to the transfer thereof to the Trust, the
Depositor will be the sole owner of all right, title and interest in, and
will have good and marketable title to, the Receivables and the other
property to be transferred by it to the Trust. The assignment of the
Receivables, all documents and instruments relating thereto and all
proceeds thereof to the Trust, pursuant to the Bill of Sale, the
Receivables Purchase Agreement and the Sale and Servicing Agreement, vests
in the Trust all interests which are purported to be conveyed thereby, free
and clear of any liens, security interests or encumbrances (other than
those permitted by the Transaction Documents).
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(xxxiii) Immediately prior to the sale of the Receivables from BFFC to
BMW Financial Services, BFFC will file UCC-3 termination statements (the
"BFFC Financing Statements"), in the offices specified in Schedule III
hereto and there shall be no unreleased statements affecting the
Receivables filed in such offices or in the office of the Secretary of
State of the State of Delaware (the "Transition Filing Office"). 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 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.
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(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 March 23, 2005. Delivery of and
payment for the Notes shall be made at the offices of Weil, Gotshal & Xxxxxx
LLP, 000 0xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, at 10:00 a.m. (New York City
time) on March 23, 2005 (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 Credit Suisse First Boston 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 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.
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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.
(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
10
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 (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.
11
(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 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 & Xxxxxx,
P.A.
SECTION 7. Conditions of the Obligations of the Underwriters. The
obligations of the Underwriters to purchase and pay for the Notes will be
subject to the accuracy of the representations and warranties made herein, to
the accuracy of the statements of officers of the Depositor, BFFC and BMW
Financial Services made pursuant hereto, to the performance by the Depositor and
BMW Financial Services of their obligations hereunder, and to the following
additional conditions precedent:
12
(a) On the Closing Date, each of the Transaction Documents, the Notes
and the Certificates shall have been duly authorized, executed and delivered by
the parties thereto, shall be in full force and effect and no default shall
exist thereunder, and the Owner Trustee and the Indenture Trustee shall have
received a fully executed copy thereof or, with respect to the Notes and
Certificates, a conformed copy thereof. The Transaction Documents, the Notes and
the Certificates shall be substantially in the forms heretofore provided to the
Representative.
(b) Both at or before the date hereof, and on or before the Closing
Date, the Representative shall have received letters, dated as of the date
hereof and as of the Closing Date, respectively, of KPMG 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.
(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.
13
(iv) Neither: (A) the transfer of the Receivables from BFFC to BMW
Financial Services pursuant to the Bill of Sale, (B) the transfer of the
Receivables from BMW Financial Services to the Depositor pursuant to the
Receivables Purchase Agreement, (C) the transfer of the Receivables from
the Depositor to the Trust pursuant to the Sale and Servicing Agreement,
(D) the assignment of the Collateral from BFFC to BMW Financial Services,
from BMW Financial Services to the Depositor and thereafter to the Trust,
(E) the assignment of its rights under the Receivables Purchase Agreement
by the Depositor to the Trust, (F) the grant of the security interest in
the Receivables and the Collateral by the Trust to the Indenture Trustee
pursuant to the Indenture, (G) the execution and delivery of this Agreement
and the Transaction Documents by BMW Financial Services, (H) the execution
and delivery of this Agreement, the Transaction Documents and the Notes by
the Depositor, (I) the execution and delivery of the Bill of Sale by BFFC,
(J) the consummation of any transactions contemplated in this Agreement or
the Transaction Documents, nor (K) the fulfillment of the terms of this
Agreement, the Transaction Documents or the Notes by BMW Financial
Services, BFFC or the Depositor, as the case may be, will conflict with, or
result in a breach, violation or acceleration of, or constitute a default
under, any term or provision of the certificate of formation and limited
liability company agreement of BMW Financial Services or the Depositor or
articles of incorporation or by-laws of BFFC or of any indenture or other
material agreement or instrument to which either of them is a party or by
which any of them or their respective properties is bound, or result in a
violation, or contravene the terms, of any statute, order or regulation
applicable to either of them of any court, regulatory body, administrative
agency or governmental body having jurisdiction over such person.
(v) There are no actions, proceedings or suits pending or, to the best
of such counsel's knowledge after due inquiry, threatened before any court,
administrative agency or other tribunal: (A) that might materially and
adversely affect the performance by the Depositor of its obligations under
this Agreement or the Transaction Documents, (B) that might materially and
adversely affect the performance by BMW Financial Services of its
obligations under this Agreement or the Transaction Documents or (C) that
might materially and adversely affect the performance by BFFC of its
obligations under the Transaction Documents.
(vi) Such counsel is familiar with BMW Financial Services' standard
operating procedures relating to its acquisition of a perfected first
priority security interest in the vehicles financed by it pursuant to
retail installment sale contracts in the ordinary course of its business.
Assuming that its standard procedures are followed with respect to the
perfection of security interests in the Vehicles (and such counsel has no
reason to believe that BMW Financial Services has not followed its standard
procedures in all material respects in connection with the perfection of
security interests in the Vehicles), BMW Financial Services has acquired or
will acquire a perfected first priority security interest in the Vehicles.
Neither such security interest nor the perfection of such security interest
shall be adversely affected by the transfer of the Receivables to the
Depositor, the Trust or the pledge thereof to the Indenture Trustee.
14
(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 Xxxx,
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.
(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.
15
(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 March
9, 2005 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 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.
16
(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) Xxxx, 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 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.
17
(h) Xxxx, 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 Xxxxxxx,
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 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.
18
(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 & Xxxxxx, 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 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.
19
(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:
(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. ss. 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.
20
(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.
(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.
21
(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.
(m) Xxxxxx Cook, LLP, in its capacity as special counsel to BMW
Financial Services and the Depositor, shall have delivered an opinion
satisfactory in form and substance to the Representative and counsel to the
Underwriters, dated the Closing Date and addressed to the Representative, to the
effect that, (i) with respect to the security interest of BMW Financial Services
in the 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
Bill of Sale, (ii) the transfer of the interest of BMW Financial Services in the
22
Bill of Sale and the Receivables, and the proceeds thereof to the Depositor
pursuant to the Receivables Purchase Agreement, (iii) the transfer of the
interest of the Depositor in the Bill of Sale and the Receivables Purchase
Agreement, the Receivables, and the proceeds thereof to the Trust pursuant to
the Sale and Servicing Agreement, and (iv) the grant by the Trust to the
Indenture Trustee under the Indenture of a security interest in the interest of
the Trust in the Bill of Sale, the Receivables Purchase Agreement, the
Receivables, the Collateral and the proceeds thereof.
(q) The Class A-1 Notes shall have been rated "Prime-1" by Xxxxx'x
Investors Service, Inc. ("Moody's") and "A-1+" by Standard and Poor's, a
division of The XxXxxx-Xxxx Companies, Inc. ("Standard & Poor's"). 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. The Class B Notes shall have been rated
"A" by Standard & Poor's.
(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
23
that any such organization has under surveillance or review its rating of any
such debt securities (other than an announcement with positive implications of a
possible upgrading, and no implication of a possible downgrading, of such
rating) shall have occurred. Termination of this Agreement pursuant to this
Section 8 shall be without liability of any party to any other party except for
the liability of the Depositor in relation to expenses as provided in Section 6
hereof, the indemnity provided in Section 9 hereof and any liability arising
before or in relation to such termination.
SECTION 9. Indemnification and Contribution.
(a) The Depositor and BMW Financial Services will, jointly and
severally, indemnify and hold harmless each Underwriter, the directors,
officers, employees and agents of each Underwriter and each person, if any, who
controls any Underwriter within the meaning of Section 15 of the Act or Section
20 of the Exchange Act against any and all losses, claims, damages or
liabilities, joint or several, to which such Underwriter or such controlling
person may become subject under the Act, the Exchange Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon:
(i) any untrue statement or alleged untrue statement made by the
Depositor or BMW Financial Services in Section 2 hereof,
(ii) any untrue statement or alleged untrue statement of any material
fact contained or incorporated in the Registration Statement, the
preliminary prospectus, if any, the Computational Materials, if any, or the
Prospectus or any amendment or supplement thereto or
(iii) the omission or alleged omission to state in the Registration
Statement, the preliminary prospectus, if any, the Computational Materials,
if any, or the Prospectus or any amendment or supplement thereto a material
fact required to be stated therein or necessary to make the statements
therein, not misleading,
and will reimburse, as incurred, each such indemnified party for any legal or
other costs or expenses reasonably incurred by it in connection with
investigating, defending against or appearing as a third-party witness in
connection with any such loss, claim, damage, liability or action; provided,
however, that the Depositor and BMW Financial Services will not be liable in any
such case to the extent that any such loss, claim, damage or liability arises
out of or is based upon any untrue statement or alleged untrue statement or
omission or alleged omission 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
24
for in this Section 9 shall be in addition to any liability which the Depositor
and BMW Financial Services may otherwise have. The Depositor and BMW Financial
Services will not, without the prior written consent of the Representative,
settle or compromise or consent to the entry of any judgment in any pending or
threatened claim, action, suit or proceeding in respect of which indemnification
may be sought hereunder (whether or not the Representative or any person who
controls the Representative is a party to such claim, action, suit or
proceeding), unless such settlement, compromise or consent (i) includes an
unconditional release of all of the Underwriters and such controlling persons
from all liability arising out of such claim, action, suit or proceeding and
(ii) does not include a statement as to or admission of, fault, culpability or a
failure to act by or on behalf of any Underwriter or controlling person.
(b) Each Underwriter, severally and not jointly, will indemnify and
hold harmless each of the Depositor and BMW Financial Services, each of its
directors and officers and each person, if any, who controls the Depositor or
BMW Financial Services within the meaning of Section 15 of the Act or Section 20
of the Exchange Act against any losses, claims, damages or liabilities to which
the Depositor, BMW Financial Services or any such director, officer or
controlling person may become subject under the Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon (i) any untrue statement or alleged untrue
statement of any material fact contained in the Registration Statement (or any
amendment thereto) or the preliminary prospectus, if any, the Computational
Materials, if any, or the Prospectus (or any amendment or supplement thereto) or
(ii) the omission or the alleged omission to state in the Registration Statement
(or any amendment thereto) or the preliminary prospectus, if any, the
Computational Materials, if any, or the Prospectus (or any amendment or
supplement thereto) a material fact required to be stated therein or necessary
to make the statements therein not misleading, in each case to the extent, but
only to the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in conformity with
the Underwriters' Information, and, subject to the limitation set forth
immediately preceding this clause, will reimburse, as incurred, any legal or
other expenses reasonably incurred by the Depositor, BMW Financial Services or
any such director, officer or controlling person in connection with
investigating, defending against or appearing as a third-party witness in
connection with any such loss, claim, damage, liability or any action in respect
thereof. The remedies provided for in this Section 9 are not exclusive and shall
not limit any rights or remedies which may otherwise be available to any
indemnified party at law or in equity.
(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
25
party similarly notified, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party (which may be counsel to such
indemnifying party if otherwise reasonably acceptable to the indemnified party);
provided, however, that if the defendants in any such action include both the
indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be one or more legal defenses available
to it and/or other indemnified parties which are different from or additional to
those available to the indemnifying party, the indemnifying party shall not have
the right to direct the defense of such action on behalf of such indemnified
party or parties and such indemnified party or parties shall have the right to
select separate counsel to defend such action on behalf of such indemnified
party or parties. After notice from the indemnifying party to such indemnified
party of its election so to assume the defense of any such action and approval
by such indemnified party of counsel appointed to defend such action, the
indemnifying party will not be liable to such indemnified party under this
Section 9 for any legal or other expenses, other than reasonable costs of
investigation, subsequently incurred by such indemnified party in connection
with the defense thereof, unless (i) the indemnified party shall have employed
separate counsel in accordance with the proviso to the next preceding sentence
(it being understood, however, that in connection with such action the
indemnifying party shall not be liable for the expenses of more than one
separate counsel (in addition to local counsel in each applicable local
jurisdiction) in any one action or separate but substantially similar actions
arising out of the same general allegations or circumstances, designated in
writing by the Representative in the case of paragraph (a) of this Section 9,
representing the indemnified parties under such paragraph (a) who are parties to
such action or actions), or (ii) the indemnifying party does not promptly retain
counsel satisfactory to the indemnified party, or (iii) the indemnifying party
has authorized the employment of counsel for the indemnified party at the
expense of the indemnifying party. All fees and expenses reimbursed pursuant to
this paragraph (c) shall be reimbursed as they are incurred. After such notice
from the indemnifying party to such indemnified party, the indemnifying party
will not be liable for the costs and expenses of any settlement of such action
effected by such indemnified party without the consent of the indemnifying
party.
(d) In circumstances in which the indemnity agreement provided for in
the preceding paragraphs of this Section 9 is unavailable or insufficient, for
any reason, to hold harmless an indemnified party in respect of any losses,
claims, damages or liabilities (or actions in respect thereof), each
indemnifying party, in order to provide for just and equitable contribution,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (or actions in respect
thereof) in such proportion as is appropriate to reflect (i) the relative
benefits received by the indemnifying party or parties on the one hand and the
indemnified party on the other from the offering of 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
26
each case as set forth in the Prospectus Supplement. The relative fault of the
parties shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Depositor, BMW Financial Services or the Underwriters, the parties' relative
intents, knowledge, access to information and opportunity to correct or prevent
such statement or omission, and any other equitable considerations appropriate
in the circumstances. The Depositor, BMW Financial Services and the Underwriters
agree that it would not be equitable if the amount of such contribution were
determined by pro rata or per capita allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of allocation
that does not take into account the equitable considerations referred to above
in this paragraph (d). Notwithstanding any other provision of this paragraph
(d), no Underwriter shall be obligated to make contributions hereunder that in
the aggregate exceed the amount by which the Spread received by it in the
initial offering of such Notes, less the aggregate amount of any damages that
such Underwriter has otherwise been required to pay in respect of the same or
any substantially similar claim, and no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute hereunder are
several in proportion to their respective principal amount of Securities they
have purchased hereunder, and not joint. For purposes of this paragraph (d),
each person, if any, who controls an Underwriter within the meaning of Section
15 of the Act or Section 20 of the Exchange Act, and each director, officer,
employee and agent of an Underwriter shall have the same rights to contribution
as such Underwriter, and each director of the Depositor and BMW Financial
Services, each officer of the Depositor and BMW Financial Services and each
person, if any, who controls the Depositor and BMW Financial Services within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, shall have
the same rights to contribution as the Depositor and BMW Financial Services.
SECTION 10. Defaults by an Underwriter. If any one or more
Underwriter(s) fail(s) to purchase and pay for any of the Notes agreed to be
purchased by such Underwriter(s) hereunder, and such failure constitutes a
default in the performance of its or their obligations under this Agreement, the
remaining Underwriter(s) shall be obligated severally to take up and pay for (in
the respective proportions that the amount of Notes set forth opposite their
names in Schedule I bears to the aggregate amount of Notes set forth opposite
the names of all the remaining Underwriter(s)) the Notes that the defaulting
Underwriter(s) agreed but failed to purchase; provided, however, that if the
aggregate amount of Notes that the defaulting Underwriter(s) agreed but failed
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.
27
SECTION 11. Survival of Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements set forth in or made pursuant to this Agreement or contained in
certificates of officers submitted pursuant hereto shall remain operative and in
full force and effect, regardless of any investigation or statement as to the
results thereof, and will survive delivery of and payment for the Notes. If for
any reason the purchase of the Notes by the Underwriters is not consummated,
each of the Depositor and BMW Financial Services shall remain responsible for
the expenses to be paid or reimbursed pursuant to Section 6 hereof and the
obligations pursuant to Section 9 hereof shall remain in effect. If for any
reason the purchase of the Notes by the Underwriters is not consummated, the
Depositor and BMW Financial Services will reimburse the Underwriters severally,
upon demand, for all out-of-pocket expenses (including fees and disbursements of
counsel) incurred by any Underwriter in connection with the offering of the
Notes.
SECTION 12. Notices. In all dealings hereunder, 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:
Credit Suisse First Boston LLC
Xxxxxx Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxx XxXxxxxxxx
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.
28
SECTION 13. Successors. This Agreement will inure to the benefit of
and be binding upon the parties hereto, their respective successors and agents,
and the directors, officers and control persons referred to in Section 9 hereof,
and no other person will have any rights or obligations hereunder.
SECTION 14. Miscellaneous.
(a) Time shall be of the essence of this Agreement.
(b) The headings herein are inserted for convenience of reference
only and are not intended to be part of, or to affect, the meaning or
interpretation of this Agreement.
(c) For purposes of this Agreement, (a) "business day" means any day
on which the New York Stock Exchange is open for trading, and (b) "subsidiary"
has the meaning set forth in Rule 405 under the Act.
(d) This Agreement may be executed in any number of counterparts, all
of which, taken together, shall constitute one and the same Agreement and any
party may enter into this Agreement by executing a counterpart.
(e) This Agreement shall inure to the benefit of and shall be binding
upon the several Underwriters, the Depositor, BMW Financial Services and their
respective successors and legal representatives, and nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any other
person any legal or equitable right, remedy or claim under or in respect of this
Agreement, or any provisions herein contained, this Agreement and all conditions
and provisions hereof being intended to be and being for the sole and exclusive
benefit of such persons and for the benefit of no other person, except that (i)
the indemnities of the Depositor and BMW Financial Services contained in Section
9 hereof shall also be for the benefit of any person or persons who control any
Underwriter within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act and (ii) the indemnities of the Underwriters contained in Section 9
hereof shall also be for the benefit of the directors of the Depositor and BMW
Financial Services, the officers of the Depositor and BMW Financial Services and
any person or persons who control the Depositor or BMW Financial Services within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act. No
purchaser of Notes from any Underwriter shall be deemed a successor because of
such purchase.
(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.
29
SECTION 15. Severability. It is the desire and intent of the parties
that the provisions of this Agreement be enforced to the fullest extent
permissible under the law and public policies applied in each jurisdiction in
which enforcement is sought. Accordingly, in the event that any provision of
this Agreement would be held in any jurisdiction to be invalid, prohibited or
unenforceable for any reason, such provision, as to such jurisdiction, shall be
ineffective, without invalidating the remaining provisions of this Agreement or
affecting the validity or enforceability of such provision in any other
jurisdiction.
SECTION 16. GOVERNING LAW. THE VALIDITY AND INTERPRETATION OF THIS
AGREEMENT, AND THE TERMS AND CONDITIONS SET FORTH HEREIN, SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT
GIVING EFFECT TO ANY PROVISIONS RELATING TO CONFLICTS OF LAWS (OTHER THAN
SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW).
30
If the foregoing is in accordance with your understanding, please
sign and return to us five counterparts hereof, and upon the acceptance hereof
by you, on behalf of each of the Underwriters, this letter and such acceptance
hereof shall constitute a binding agreement among each of the Underwriters and
the Depositor and BMW Financial Services.
Very truly yours,
BMW FS SECURITIES LLC
By: /s/ Xxxxxx Xxxxxx
---------------------------
Name: Xxxxxx Xxxxxx
Title: Treasurer
By: /s/ Xxxxxx X. Xxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxx
Title: President
BMW FINANCIAL SERVICES NA, LLC
By: /s/ Xxxxxx Xxxxxx
---------------------------
Name: Xxxxxx Xxxxxx
Title: Treasurer
By: /s/ Xxxxxx X. Xxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxx
Title: President
The foregoing Agreement is hereby confirmed and accepted as of the
date first above written.
CREDIT SUISSE FIRST BOSTON LLC
on behalf of itself and as Representative of the
several Underwriters
By: /s/ Xxxxxx Xxxxxxx
----------------------------
Name: Xxxxxx Xxxxxxx
Title: Managing Director
31
SCHEDULE I
Underwriter Class A-1 Notes Class A-2 Notes Class A-3 Notes Class A-4 Notes Class B Notes
----------- --------------- --------------- --------------- --------------- -------------
Credit Suisse First Boston $ 108,000,000 $ 152,333,334 $ 120,333,334 $ 88,169,000 $ 10,791,667
LLC
ABN AMRO Incorporated $ 108,000,000 $ 152,333,333 $ 120,333,333 $ 88,169,000 $ 10,791,667
Xxxxxxx Xxxxx, Xxxxxx Xxxxxx
& Xxxxx Incorporated $ 108,000,000 $ 152,333,333 $ 120,333,333 $ 88,169,000 $ 10,791,666
Total $ 324,000,000 $ 457,000,000 $ 361,000,000 $ 264,507,000 $ 32,375,000
SCHEDULE II
Original
Security Principal Balance $ Investor Price % Investor Price $ Price % Price $ Rate %
-------- ------------------- ---------------- ---------------- ------- ------- ------
Class A-1 Notes $ 324,000,000 100.00000% $ 324,000,000 0.07000% $ 226,800 3.0336%
Class A-2 Notes $ 457,000,000 99.99130% $ 456,960,241 0.10000% $ 457,000 3.66%
Class A-3 Notes $ 361,000,000 99.99460% $ 360,980,506 0.15000% $ 541,500 4.04%
Class A-4 Notes $ 264,507,000 99.97307% $ 264,435,768 0.21000% $ 555,465 4.28%
Class B Notes $ 32,375,000 99.99724% $ 32,374,106 0.28000% $ 90,650 4.43%
Total Price to Public: $ 1,438,750,622
Total Price to $ 1,436,879,207
Depositor:
Underwriting Discounts $ 1,871,415
and Commissions:
SCHEDULE III
UCC-1
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Office of
Debtor Secretary of State Secured Party
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BMW Financial Services NA, LLC Delaware BMW FS Securities LLC
BMW FS Securities LLC Delaware BMW Vehicle Owner Trust 2005-A
BMW Vehicle Owner Trust 2005-A Delaware JPMorgan Chase Bank, N.A., as
Indenture Trustee
UCC-3
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BMW Financial Services NA, LLC Delaware
BMW FS Funding Corp. Delaware
