EXHIBIT 1.1
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BMW VEHICLE OWNER TRUST 2001-A
$__________ NOTES
BMW FS SECURITIES LLC
(DEPOSITOR)
UNDERWRITING AGREEMENT
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____ __, 2001
JPMorgan, a division of Chase Securities Inc.
As Representative of the
Several Underwriters
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
SECTION 1. Introductory. BMW FS Securities LLC (the "Depositor")
proposes to cause BMW Vehicle Owner Trust 2001-A (the "Trust") to issue and sell
$___________ principal amount of its _____% Class A-1 Notes (the "Class A-1
Notes"), $___________ principal amount of its _____% Class A-2 Notes (the "Class
A-2 Notes"), $___________ principal amount of its _____% Class A-3 Notes (the
"Class A-3 Notes"), $___________ principal amount of its _____% 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 $________ principal
amount of its ______% Class B Notes (the "Class B Notes" and together with the
Class A Notes, the "Notes") to the several underwriters set forth on Schedule I
(each, an "Underwriter"), for whom you are acting as representative (the
"Representative"). The Notes will be issued pursuant to an Indenture, dated as
of _____ __, 2001 (the "Indenture"), between the Trust and The Chase Manhattan
Bank, as indenture trustee (in such capacity, the "Indenture Trustee"). The
assets of the Trust will include, among other things, a pool of motor vehicle
retail installment sale contracts transferred to the Trust on the Closing Date
(the "Initial Receivables") secured by new and used automobiles, motorcycles,
light-duty trucks and sport utility vehicles financed thereby (the "Initial
Vehicles") and certain monies received thereunder after ________, 2001 (the
"Initial Cutoff Date"), motor vehicle retail installment sale contracts
transferred to the Trust after the Closing Date and prior to __________, 2001
(the "Subsequent Receivables" and together with the Initial Receivables, the
"Receivables") secured by new and used automobiles, motorcycles, light-duty
trucks and sport utility vehicles financed thereby (the "Subsequent Vehicles"
and together with the Initial Vehicles, the "Vehicles") and certain monies
received thereunder after the related subsequent cutoff date, and the other
property and the proceeds thereof to be conveyed to the Trust pursuant to the
Sale and Servicing Agreement to be dated as of _______, 2001 (the "Sale and
Servicing Agreement") among the Trust, BMW FS Financial Services NA, LLC ("BMW
FS"), as servicer (in such capacity, the "Servicer"), the Depositor and the
Indenture Trustee. Pursuant to the Sale and Servicing Agreement, the Depositor
will sell the Receivables to the Trust and the Servicer will service the
Receivables on behalf of the Trust. In addition, pursuant to the Owner Trust
Administration Agreement to be dated as of _______, 2001 (the "Owner Trust
Administration Agreement") among the Trust, BMW FS and the Indenture Trustee,
BMW FS will agree to perform certain administrative tasks on behalf of the
Trust. The Depositor will form the Trust pursuant to a Trust Agreement (as
amended and supplemented from time to time, the "Trust Agreement") to be dated
as of _______, 2001 between the Depositor and Wilmington Trust Company, as owner
trustee (the "Owner Trustee"). The Certificates, each representing a fractional
undivided interest in the Trust, will be issued pursuant to the Trust Agreement.
The Depositor will acquire the Receivables from BMW FS pursuant to the
terms of the Receivables Purchase Agreement (the "Second Tier Receivables
Purchase Agreement") dated as of ______, 2001 between the Depositor and BMW FS.
BMW FS will acquire the Receivables from BMW FS Funding Corp. ("BFFC") pursuant
to the terms of the Receivables Purchase Agreement (the "First Tier Receivables
Purchase Agreement") dated as of ______, 2001 between BFFC and BMW FS.
Capitalized terms used but not otherwise defined herein shall have the
meanings set forth in the Sale and Servicing Agreement. As used herein, the term
"Transaction Documents" refers to the Sale and Servicing Agreement, Indenture,
Trust Agreement, First Tier Receivables Purchase Agreement, Second Tier
Receivables Purchase Agreement, Owner Trust Administration Agreement and Note
Depository Agreement.
SECTION 2. Representations and Warranties. (a) As a condition of the
obligation of the Underwriters to purchase the Notes, each of the Depositor and
BMW FS 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 FS, the representation or warranty solely
with respect to BMW FS is only made by BMW FS.
(i) A registration statement on Form S-3 (No. 333-56802),
including a prospectus, relating to the Notes has been filed with the
Securities and Exchange Commission (the "Commission") and has become
effective. Such registration statement, as amended as of the date of
this Agreement, together with any filings incorporated by reference
into it, is hereinafter referred to as the "Registration Statement,"
and the prospectus included in such Registration Statement, as
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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 date of this
Agreement that is subject to completion; the "Base Prospectus" means
the base prospectus dated _______, 2001 included in the Prospectus; the
"Prospectus Supplement" means the prospectus supplement dated the date
hereof included in the Prospectus.
(ii) On the effective date of the registration statement
relating to the Notes, such registration statement conformed in all
respects to the requirements of the Act and the rules and regulations
of the Commission promulgated under the Act (the "Rules and
Regulations") and did not include any untrue statement of a material
fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading, and on the
date of this Agreement the Registration Statement and the preliminary
prospectus conform, and at the time of the filing of the Prospectus in
accordance with Rule 424(b), the Registration Statement and the
Prospectus will conform in all respects to the requirements of the Act
and the Rules and Regulations, and neither of such documents includes
or will include any untrue statement of a material fact or omits or
will omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading. The preceding
sentence does not apply to statements in or omissions from such
documents based upon written information furnished to the Depositor by
the Representative specifically for use therein (the "Underwriters'
Information") which information is limited to the information in the
___ paragraph under the heading "Underwriting" in each preliminary
prospectus and the Prospectus.
(iii) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus there has not
been any material adverse change, or any development involving a
prospective material adverse change, in or affecting the condition,
financial or otherwise, earnings, business or operations of the
Depositor or BMW FS, and their respective subsidiaries, taken as a
whole, except as disclosed to you in writing prior to the date hereof.
(iv) The Notes are "asset backed securities" within the
meaning of, and satisfy the requirements for use of, Form S-3 under the
Act.
(v) The documents incorporated by reference in the
Registration Statement and Prospectus, at the time they were or
hereafter are filed with the Commission, complied and will comply in
all material respects with the requirements of the Securities Exchange
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Act of 1934, as amended (the "Exchange Act"), and the rules and
regulations of the Commission thereunder.
(vi) The Trust Agreement need not be qualified under the Trust
Indenture Act of 1939, as amended and the Trust is not required to
register under the Investment Company Act of 1940, as amended.
(vii) The Indenture has been qualified under the Trust
Indenture Act of 1939, as amended.
(viii) The Depositor has filed the preliminary prospectus
supplement relating to the Notes pursuant to and in accordance with
Rule 424(b).
(ix) The issuance and sale of the Notes have been duly
authorized by all necessary corporate action of the Depositor and, when
executed, authenticated and delivered to and paid for by the
Underwriters in accordance with the terms of this Agreement and the
Indenture, the Notes will be valid and binding obligations of the
Trust, enforceable in accordance with their terms, and entitled to the
benefits of the Indenture.
(x) Each of the Depositor, BMW FS, BFFC and BMW has been duly
incorporated and is validly existing as a corporation or limited
liability company in good standing under the law of its jurisdiction of
incorporation with full power and authority to own, lease and operate
its properties and assets and conduct its business as described in the
Prospectus, is duly qualified to transact business and is in good
standing in each jurisdiction in which its ownership, leasing or
operation of its properties or assets or the conduct of its business
requires such qualification, and has full power and authority to
execute and perform its obligations under this Agreement, the
Transaction Documents and the Notes.
(xi) The execution and delivery of this Agreement have been
duly authorized by all necessary corporate action of the Depositor and
BMW FS, and this Agreement has been duly executed and delivered by the
Depositor and BMW FS and when duly executed and delivered by the other
parties hereto will be the valid and binding agreement of the Depositor
and BMW FS, enforceable against the Depositor and BMW FS in accordance
with its terms.
(xii) The execution and delivery of the Transaction Documents
have been duly authorized by all necessary corporate action of the
Depositor, BFFC BMW FS [and BMW North America] and, when duly executed
and delivered by the Depositor, BMW FS, BFFC and [BMW North America]
and the other parties thereto, will be valid and binding agreements of
the Depositor, BMW FS, BFFC and [BMW North America], enforceable
against the Depositor, BMW FS, BFFC and [BMW North America] in
accordance with their terms.
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(xiii) The execution and delivery by the Depositor, BFFC and
BMW FS of, and the performance by the Depositor and BMW FS 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 FS with the other provisions of this Agreement and the
consummation of the other transactions herein contemplated do not (x)
require the consent, approval, authorization, registration or
qualification of or with any governmental authority, except such as
have been obtained or made or such as may be required by the state
securities or Blue Sky laws of the various states of the United States
of America or other U.S. jurisdictions in connection with the Offering
by the Underwriters, or (y) conflict with or result in a breach or
violation or acceleration of, or constitute a default under, any term
or provision of the organizational documents of the Depositor, BMW FS,
BFFC [or BMW], any indenture mortgage, deed of trust, lease or other
agreement or instrument to which the Depositor, BMW FS, BFFC [or BMW]
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 FS, BFFC [or BMW] of any
court, regulatory body, administrative agency, governmental body or
arbitrator having jurisdiction over the Depositor, BMW FS, BFFC [or
BMW], or will result in the creation of any lien upon any material
property or assets of the Depositor, BMW FS, BFFC [or BMW] (other than
pursuant to the Transaction Documents).
(xiv) None of the Depositor, BMW FS, BFFC [or BMW] 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 FS, BFFC
[or BMW], 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 FS,
BFFC [or BMW] or (b) a material and adverse effect on its ability to
perform its obligations under this Agreement or any of the Transaction
Documents, in each case, to which it is a party.
(xv) Neither the Depositor nor BMW FS nor anyone acting on
their behalf has taken any action that would require registration of
the Depositor or the Trust under the Investment Company Act of 1940, as
amended (the "Investment Company Act"); nor will the Depositor nor BMW
FS act, nor has either of them authorized nor will either of them
authorize any person to act, in such manner.
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(xvi) The Depositor, BFFC and BMW FS 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 FS has received any notice of proceedings
relating to the revocation or modification of any such certificate,
authorization or permit which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would have a
materially adverse effect on or constitute a materially adverse change
in, or constitute a development involving a prospective materially
adverse effect on or change in, the condition (financial or otherwise),
earnings, properties, business affairs or business prospects, net worth
or results of operations of the Depositor, BFFC or BMW FS, except as
described in or contemplated by the Prospectus.
(xvii) No legal or governmental proceedings are pending or
threatened to which the Depositor, BMW FS or BMW is a party or to which
the property of the Depositor, BMW FS or BMW is subject except for such
proceedings that would not, if the subject of any unfavorable decision,
ruling or finding, singly or in the aggregate, have a material adverse
effect on the condition (financial or otherwise), earnings, properties,
business affairs or business prospects, net worth or results of
operations of the Depositor, BMW FS or BMW, or the Depositor's or BMW
FS' ability to perform its obligations under this Agreement, the
Transaction Documents or the Notes.
(xviii) No default exists, and no event has occurred which,
with notice or lapse of time or both, would constitute a default in the
due performance and observance of any term, covenant or condition of
any indenture, mortgage, deed of trust, lease or other agreement or
instrument to which the Depositor or any of its affiliates is a party
or by which the Depositor or any of its affiliates or any of their
respective properties is bound.
(xix) The Notes and the Transaction Documents conform in all
material respects to the descriptions thereof contained in the
Prospectus.
(xx) As of the Closing Date, each of the Depositor's, BFFC's
and BMW FS' representations and warranties in the Transaction
Documents, will be true and correct and such representations and
warranties are incorporated herein by reference.
(xxi) Other than as contemplated by this Agreement or as
disclosed in the Prospectus, there is no broker, finder or other party
that is entitled to receive from the Depositor or any of its affiliate
or the Underwriters, any brokerage or finder's fee or other fee or
commission as a result of any of the transactions contemplated by this
Agreement.
(xxii) Neither the Depositor nor any of its affiliates has
entered into, nor will it enter into, any contractual arrangement with
respect to the distribution of the Notes except for this Agreement.
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(xxiii) BFFC's assignment of the Receivables to BMW FS
pursuant to the First Tier Receivables Purchase Agreement will vest in
BMW FS all of BFFC's right, title and interest to the Receivables.
(xxiv) BMW FS's assignment of the Receivables to the Depositor
pursuant to the Second Tier Receivables Purchase Agreement will vest in
the Depositor all of BMW FS's right, title and interest to the
Receivables.
(xxv) The Depositor's assignment of the Receivables to the
Trust pursuant to the Sale and Servicing Agreement will vest in the
Trust all of the Depositor's right, title and interest to the
Receivables.
(xxvi) The Trust's assignment of the Collateral to the Trustee
pursuant to the Indenture will vest in the Indenture Trustee, for the
benefit of the Noteholders, a first priority perfected security
interest therein, subject to no other outstanding Lien.
(xxvii) The Notes, when duly and validly executed by the
Indenture Trustee, authenticated and delivered in accordance with the
Indenture, and delivered and paid for pursuant hereto will be validly
issued and outstanding and entitled to the benefits of the Indenture.
(xxviii) The Certificates, when duly and validly executed by
the Owner Trustee, authenticated and delivered in accordance with the
Trust Agreement, will be validly issued and outstanding and entitled to
the benefits of the Trust Agreement.
(xxix) Any taxes, fees and other governmental charges due on
or prior to the Closing Date (including, without limitation, sales
taxes) in connection with the execution, delivery and issuance of this
Agreement, the Transaction Documents and the Notes have been or will
have been paid at or prior to the Closing Date.
(xxx) The Receivables are chattel paper as defined in the
Uniform Commercial Code as in effect in the State of New Jersey.
(xxxi) Under generally accepted accounting principles, BFFC
will report its transfer of the Receivables as a sale, BMW FS 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 FS
pursuant to the First Tier Receivables Purchase Agreement, 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 FS. BFFC, pursuant to the First Tier Receivables
Purchase Agreement, is transferring to BMW FS ownership of the
Receivables, the security interest in the Vehicles securing the
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Receivables and the proceeds of each of the foregoing, and, immediately
prior to the transfer thereof to the Depositor, BMW FS 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 FS, pursuant to the Second Tier
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 First Tier Receivables
Purchase Agreement, the Second Tier Receivables Purchase Agreement and
the Sale and Servicing Agreement, vests in the Trust all interests
which are purported to be conveyed thereby, free and clear of any
liens, security interests or encumbrances.
(xxxiii) Immediately prior to the transfer of the Receivables
to BMW FS, BMW FS' interest in the Receivables and the proceeds thereof
shall be perfected upon the filing of UCC-1 financing statements (the
"Financing Statements") in the offices specified in Schedule III and
there shall be no unreleased statements affecting the Receivables filed
in such offices other than the Financing Statements. If a court
concludes that the transfer of the Receivables from BFFC to BMW FS is a
sale, the interest of BMW FS in the Receivables and the proceeds
thereof will be perfected upon the filing of the Financing Statements
in the offices set forth in Schedule III hereto. If a court concludes
that such transfer is not a sale, the First Tier Receivables Purchase
Agreement and the transactions contemplated thereby constitute a grant
by BFFC to BMW FS of a valid security interest in the Receivables and
the proceeds thereof, which security interest will be perfected upon
the filing of the Financing Statements in the offices specified in
Schedule III. No other filing or other action is necessary to perfect
and maintain the interest or the security interest of BMW FS in the
Receivables and the proceeds thereof against third parties.
(xxxiv) Immediately prior to the transfer of the Receivables
to the Depositor, the Depositor' interest in the Receivables and the
proceeds thereof shall be perfected upon the filing of UCC-1 financing
statements (the "Financing Statements") in the offices specified in
Schedule III and there shall be no unreleased statements affecting the
Receivables filed in such offices other than the Financing Statements.
If a court concludes that the transfer of the Receivables from BMW FS
to the Depositor is a sale, the interest of the Depositor in the
Receivables and the proceeds thereof will be perfected upon the filing
of the Financing Statements in the offices set forth in Schedule III
hereto. If a court concludes that such transfer is not a sale, the
Second Tier Receivables Purchase Agreement and the transactions
contemplated thereby constitute a grant by BMW FS to the Depositor of a
valid security interest in the Receivables and the proceeds thereof,
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which security interest will be perfected upon the filing of the
Financing Statements in the offices specified in Schedule III. No other
filing or other action is necessary to perfect and maintain the
interest or the security interest of the Depositor in the Receivables
and the proceeds thereof against third parties.
(xxxv) Immediately prior to the transfer of the Receivables to
the Trust, the Trust' interest in the Receivables and the proceeds
thereof shall be perfected upon the filing of UCC-1 financing
statements (the "Financing Statements") in the offices specified in
Schedule III and there shall be no unreleased statements affecting the
Receivables filed in such offices other than the Financing Statements.
If a court concludes that the transfer of the Receivables from
Depositor to the Trust is a sale, the interest of the Trust in the
Receivables and the proceeds thereof will be perfected upon the filing
of the Financing Statements in the offices set forth in Schedule III
hereto. If a court concludes that such transfer is not a sale, the Sale
and Servicing Agreement and the transactions contemplated thereby
constitute a grant by Depositor to the Trust of a valid security
interest in the Receivables and the proceeds thereof, which security
interest will be perfected upon the filing of the Financing Statements
in the offices specified in Schedule III. No other filing or other
action is necessary to perfect and maintain the interest or the
security interest of the Trust in the Receivables and the proceeds
thereof against third parties.
(b) The above representations and warranties shall be deemed to be
repeated at the Closing Date.
SECTION 3. Purchase, Sale and Delivery of Notes. (a) On the basis of
the representations, warranties and agreements herein contained, but subject to
the terms and conditions herein set forth, the Depositor agrees to cause the
Trust to sell to each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Trust the respective principal amount of the
Notes set forth opposite the name of such Underwriter on Schedule I, at a
purchase price (the "Purchase Price") equal to "Price $" as specified on
Schedule II hereto, plus accrued interest from _____ ___, 2001. Delivery of and
payment for the Notes shall be made at the offices of Weil, Gotshal & Xxxxxx
LLP, at 10:00 a.m. (New York City time) on ____ __, 2001 (or at such other place
and time on the same or other date as shall be agreed to in writing by the
Representative and the Depositor, the "Closing Date"). Delivery of one or more
global notes representing the Notes shall be made against payment of the
aggregate purchase price in immediately available funds drawn to the order of
the Depositor. The global notes to be so delivered shall be registered in the
name of Cede & Co., as nominee of The Depository Trust Company ("DTC"). The
interests of beneficial owners of the Notes will be represented by book entries
on the records of DTC and participating members thereof. Definitive Notes
representing the Notes will be available only under limited circumstances.
(b) The Depositor hereby acknowledges that the payment of monies
pursuant to Section 3(a) hereof (a "Payment") by or on behalf of the
Underwriters of the aggregate Purchase Price for the Notes does not constitute
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closing of a purchase and sale of the Notes. Only execution and delivery, by
facsimile or otherwise, of a receipt for Notes by the Representative indicates
completion of the closing of a purchase of the Notes from the Depositor.
Furthermore, in the event that the Underwriters make a Payment to the Depositor
prior to the completion of the closing of a purchase of Notes, the Depositor
hereby acknowledges that until the Representative executes and delivers such
receipt for the Notes the Depositor will not be entitled to the Payment and
shall return the Payment to the Underwriters as soon as practicable (by wire
transfer of same-day funds) upon demand. In the event that the closing of a
purchase of Notes is not completed and the Payment is not returned by the
Depositor to the Underwriters on the same day the Payment was received by the
Company, the Company agrees to pay to the Underwriters in respect of each day
the Payment is not returned by it, in same-day funds, interest on the amount of
such Payment in an amount representing the Underwriters' cost of financing as
reasonably determined by the Representative.
(c) It is understood that any of you, individually, may (but shall not
be obligated to) make Payment on behalf of any Underwriter or Underwriters for
any of the Notes to be purchased by such Underwriter or Underwriters. No such
Payment shall relieve such Underwriter or Underwriters from any of its or their
obligations hereunder.
SECTION 4. Offering by Underwriters. It is understood that the
Underwriters propose to offer the Notes for sale to the public (which may
include selected dealers) on the terms set forth in the Prospectus. It is
further understood that the Underwriters shall not deliver any Computational
Materials to any potential investors unless such Computational Materials have
been approved of by the Depositor.
SECTION 5. Covenants of the Depositor and BMW FS. The Depositor and BMW
FS, as applicable, each covenant and agree with the Underwriters as set forth
below. For purposes of this Section, the Depositor and BMW FS shall jointly make
each of the covenants set forth below in clauses (a), (b), (c), (e), (g), (h),
(i), (k), (l) and (m) and the entity specified in the covenant below shall make
the covenants set forth in all of the other clauses below.
(a) The Depositor will furnish to the Underwriters and counsel
for the Underwriters, without charge, as many copies of any preliminary
prospectus, the Prospectus, the Registration Statement and all
amendments and supplements to such documents, in each case as soon as
available and in such quantities as the Underwriters reasonably
request.
(b) The Depositor will file the Prospectus, properly
completed, with the Commission pursuant to and in accordance with
subparagraph (2) (or, if applicable and if consented to by the
Representative, subparagraph (5)) of Rule 424(b) no later than the
second business day following the date it is first used. The Depositor
and BMW FS will advise the Representative promptly of any such filing
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pursuant to Rule 424(b). The Depositor shall file with the Commission a
current report on Form 8-K (the "Current Report") including any
"computational materials," "structural terms sheets" or "collateral
term sheets" (together "Computational Materials") (i) no later than the
date that the Prospectus Supplement is filed with respect to
"computational materials" and "structural terms sheets" (as such terms
are interpreted in the No-Action letters addressed to 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) The Depositor and BMW FS 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
FS will advise the Representative promptly of any amendment or
supplement of the Registration Statement or the Prospectus and of the
institution by the Commission of any stop order proceedings in respect
of the Registration Statement. The Depositor and BMW FS 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 FS will comply with the Act, the Exchange Act, the Trust Indenture
Act of 1939, as amended and the rules and regulations contemplated
thereunder so as to permit the completion of the distribution of the
Notes as contemplated in this Agreement and in the Prospectus. The
Depositor will file with the Commission all documents required to be
filed pursuant to the Exchange Act within the time periods specified in
the Exchange Act or the rules and regulations promulgated thereunder.
(d) The Depositor will arrange for the qualification of the
Notes for offering and sale in each jurisdiction as the Representative
shall designate including, but not limited to, pursuant to applicable
state securities ("Blue Sky") laws of certain states of the United
States of America or other U.S. jurisdictions, and the Depositor shall
maintain such qualifications in effect for so long as may be necessary
in order to complete the placement of the Notes; provided, however,
that the Depositor shall not be obliged to file any general consent to
service of process or to qualify as a foreign corporation or as a
securities dealer in any jurisdiction or to subject itself to taxation
in respect of doing business in any jurisdiction in which it is not
otherwise so subject. The Depositor will promptly advise the
Representative of the receipt by the Depositor of any notification with
respect to the suspension of the qualification of the Notes for sale in
any jurisdiction or the initiation or threatening of any proceeding for
such purpose.
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(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 FS 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 6
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 FS and the Depositor shall (i) furnish or make
available to the Underwriters or their counsel such additional
documents and information regarding BMW FS, 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, (ii) provide the Underwriters or their advisors, or both,
prior to acceptance of its subscription, the opportunity to ask
questions of, and receive answers with respect to such matters.
(h) Until the retirement of the Notes, or until none of the
Underwriters maintains a secondary market in the Notes, whichever
occurs first, the Depositor will deliver to each of the Underwriters,
through the Representative, the annual statement of compliance and any
annual independent certified public accountants' report furnished to
the Indenture Trustee pursuant to the Sale and Servicing Agreement, as
soon as such statements and reports are furnished to the Indenture
Trustee.
(i) So long as any of the Notes are outstanding, the Depositor
will deliver to each of the Underwriters, through the Representative:
(i) all documents distributed to Noteholders and (ii) from time to
time, any other information concerning BMW FS, the Depositor or the
Trust as the Underwriters may reasonably request only insofar as such
information reasonably relates to the Offering Memorandum or the
transactions contemplated by the Transaction Documents.
(j) On or before the Closing Date, the Depositor, BFFC and BMW
FS 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 FS
12
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 FS, as the case may be, the
relevant party shall furnish, or cause to be furnished, such documents
and take any such other actions as promptly as possible.
(l) As soon as practicable, but no later than sixteen months
after the date hereof, the Depositor and BMW FS 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) For a period of 45 days from the date hereof, none of the
Depositor, BMW FS or any of their respective affiliates will, without
the prior written consent of the Representative, directly or
indirectly, offer, sell or contract to sell or announce the offering
of, in a public or private transaction, any other collateralized
securities similar to the Notes.
SECTION 6. Payment of Expenses. The Depositor will pay all expenses
(including legal fees and disbursements) incident to the transactions
contemplated by this Agreement, whether or not the transactions contemplated
herein are consummated or this Agreement is terminated pursuant to Section 8
hereof, including: (a) the preparation, printing and distribution of each
preliminary prospectus and the Prospectus and each amendment or supplement
thereto and delivery of copies thereof to the Underwriters, (b) the preparation
of this Agreement, (c) the preparation, issuance and delivery of the Notes to
the Underwriters (or any appointed clearing organizations), (d) the fees and
disbursements of BMW FS's and the Depositor's counsel and accountants, (e) the
qualification of the Notes under state securities laws in accordance with
Section 5(c) including filing fees and the fees and disbursements of counsel in
connection therewith and in connection with the preparation of any blue sky
survey (including the printing and delivery thereof to the Underwriters), (f)
any fees charged by rating agencies for the rating (or consideration of the
rating) of the Notes, (g) the fees and expenses incurred with respect to any
filing with, and review by, DTC or any similar organizations, (h) the fees and
disbursements of the Indenture Trustee and its counsel, if any, (i) the fees and
disbursements of the Owner Trustee and its counsel, if any, and (j) the fees and
expenses of Xxxxxxxx, Xxxxxx & Finger.
13
SECTION 7. Conditions of the Obligations of the Underwriters. The
obligations of the Underwriters to purchase and pay for the Notes will be
subject to the accuracy of the representations and warranties made herein, to
the accuracy of the statements of officers made pursuant hereto, to the
performance by the Depositor and BMW FS of their obligations hereunder, and to
the following additional conditions precedent:
(a) On the Closing Date, each of the Transaction Documents, the Notes
and the Certificates shall have been duly authorized, executed and delivered by
the parties thereto, shall be in full force and effect and no default shall
exist thereunder, and the Owner Trustee and the Indenture Trustee shall have
received a fully executed copy thereof or, with respect to the Notes and
Certificates, a conformed copy thereof. The Transaction Documents, the Notes and
the Certificates shall be substantially in the forms heretofore provided to the
Representative.
(b) Both at or before the date hereof, and on or before the Closing
Date, you shall have received letters, dated as of the date hereof and as of the
Closing Date, respectively, of KPMG Peat Marwick, independent certified public
accountants, substantially in the form of the drafts to which you have agreed
previously and otherwise substantially in form and substance reasonably
satisfactory to you and counsel to the Underwriters.
(c) The Prospectus and the Computational Materials shall have been
filed with the Commission in accordance with the Rules and Regulations and
Section 5(a) hereof on or prior to the Closing Date, no stop order suspending
the effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted or, to the knowledge of
the Depositor or BMW FS shall be contemplated by the Commission.
(d) The Representative shall have received an opinion of in-house
counsel to the Depositor, BFFC and BMW FS, addressed to the Underwriters, dated
the Closing Date and satisfactory in form and substance to you and counsel to
the Underwriters, to the effect that:
(i) Each of BMW FS, 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 FS, as applicable.
14
(iii) Each of the Depositor, BFFC and BMW FS is duly qualified
to do business and is in good standing, and has obtained all necessary
licenses, in each jurisdiction in which failure to so qualify or obtain
such licenses would (a) render any Receivable unenforceable by the
Depositor or the Indenture Trustee on behalf of any Noteholder or (b)
have a material adverse affect upon its business or the ownership of
its property.
(iv) Neither: (A) the transfer of the Receivables from BFFC to
BMS FS pursuant to the First Tier Receivables Purchase Agreement, (B)
the transfer of the Receivables from BMW FS to the Depositor pursuant
to the Second Tier 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 FS, from BMW FS to the Depositor and thereafter to the Trust,
(E) the assignment of the First Tier Receivables Purchase Agreement
from BMW FS to the Depositor and the assignment of the First Tier
Receivables Purchase Agreement and the Second Tier 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 FS, (H)
the execution and delivery of this Agreement, the Transaction Documents
and the Notes by the Depositor, (I) the execution and delivery of the
Transaction Documents 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 FS, 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 FS or the Depositor or articles of incorporation or by-laws of
BFFC or of any indenture or other material agreement or instrument to
which either of them is a party or by which any of them or their
respective property is bound, or result in a violation, or contravene
the terms, of any statute, order or regulation applicable to either of
them of any court, regulatory body, administrative agency or
governmental body having jurisdiction over such person.
(v) There are no actions, proceedings or investigations
pending or, to the best of such counsel's knowledge after due inquiry,
threatened before any court, administrative agency or other tribunal:
(A) asserting the invalidity or unenforceability of this Agreement or
the Transaction Documents, (B) seeking to prevent the consummation of
any of the transactions contemplated by this Agreement or the
Transaction Documents, or the execution and delivery thereof, (C) that
might materially and adversely affect the performance by the Depositor
of its obligations under this Agreement or the Transaction Documents,
(D) that might materially and adversely affect the performance by BMW
FS of its obligations under this Agreement or the Transaction
15
Documents, or (E) that might materially and adversely affect the
performance by BFFC of its obligations under the Transaction Documents.
(vi) BFFC has a valid and unencumbered ownership interest in
each Receivable in existence as of the date of the First Tier
Receivables Purchase Agreement.
(vii) Such counsel is familiar with BMW FS's standard
operating procedures relating to its acquisition of a perfected first
priority security interest in the vehicles financed by it pursuant to
retail installment sale contracts in the ordinary course of its
business. Assuming that its standard procedures are followed with
respect to the perfection of security interests in the Vehicles (and
such counsel has no reason to believe that BMW FS has not followed its
standard procedures in all material respects in connection with the
perfection of security interests in the Vehicles), BMW FS 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.
(viii) The direction by the Trust to the Indenture Trustee to
authenticate the Notes has been duly authorized by BMW FS, acting as
the administrator of the Trust under the Owner Trust Administration
Agreement.
(e) The Representative shall have received an opinion of Weil, Gotshal
& Xxxxxx LLP, counsel to the Depositor, BFFC, BMW FS and the Trust, addressed to
the Representative, dated the Closing Date and satisfactory in form and
substance to the Representative and their counsel, to the effect that:
(i) Each of this Agreement and the Transaction Documents is
the legal, valid and binding obligation of BMW FS, BFFC and the
Depositor, as the case may be, enforceable against them in accordance
with its terms: (A) subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to creditors'
rights generally, and (B) except that the remedy of specific
performance and injunctive and other forms of equitable relief may be
subject to equitable defenses and to the discretion of the court before
which any proceeding therefor may be brought.
(ii) The Notes, when duly executed and delivered by BMW FS, as
Administrator, authenticated by the Indenture Trustee and delivered and
paid for pursuant to this Agreement, will be valid and binding
obligations of the Trust, enforceable in accordance with their terms,
subject to: (A) applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting creditors' rights generally,
(B) general principles of equity (regardless of whether the enforcement
16
of such remedies is considered in a proceeding in equity or at law),
and (C) the further qualification that certain of the remedial
provisions in the Indenture may be limited or rendered unenforceable
under the laws of New York (but such laws do not, in such counsel's
opinion, make the remedies provided by the Indenture unsatisfactory for
the realization of the benefits provided thereby).
(iii) The Transaction Documents conform in all material
respects with the description thereof contained in the Prospectus and
any amendment or supplement thereto.
(iv) The statements contained in the Prospectus and any
supplement thereto under the captions "The Notes" and "Payments on the
Notes," insofar as such statements constitute a summary of the Notes
and the Transaction Documents, constitute a fair summary of such
documents.
(v) Neither the Trust nor the Depositor is, or as a result of
the offering and sale of the Notes will be, required to be registered
under the Investment Company Act.
(vi) The Indenture has been duly qualified under the Trust
Indenture Act.
(vii) The Trust Agreement need not be qualified under the
Trust Indenture Act.
(viii) The First Tier Receivables Purchase Agreement
constitutes a grant by BFFC to BMW FS of a valid security interest in
the Receivables and other property granted to the Depositor pursuant
thereto and the proceeds of the foregoing.
(ix) The Second Tier Receivables Purchase Agreement
constitutes a grant by BMW FS 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.
(x) 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.
(xi) The Indenture constitutes a grant by the Trust to the
Indenture Trustee of a valid security interest in the Collateral, as
such term is defined in the Indenture (including the property held in
the Reserve Account) and the proceeds of each of the foregoing, which
security interest in the Reserve Account constitutes a perfected first
priority security interest therein.
17
(xii) The Class A-1 Notes are "eligible securities" as defined
in Rule 2a-7(a)(10) promulgated under the 1940 Act.
(xiii) To such counsel's knowledge, no consent, approval,
authorization or order of any court or governmental agency or body is
required for the consummation of the transactions contemplated in this
Agreement and the Transaction Documents, except such filings with
respect to the transfer of the Receivables to BMW FS pursuant to the
First Tier Receivables Purchase Agreement, the transfer of the
Receivables to the Depositor pursuant to the Second Tier Receivables
Purchase Agreement, and the transfer of the Receivables to the Trust
pursuant to the Sale and Servicing Agreement, as have been made and
such other approvals as have been obtained.
(xiv) To the best of such counsel's knowledge, there are no
contracts or documents of the Registrants which are required to be
filed as exhibits to the Registration Statement pursuant to the Act or
the Rules or Regulations which have not been so filed.
(xv) The Registration Statement became effective under the Act
on ________ 2001 and, to the best of such counsel's knowledge, no stop
order suspending the effectiveness of the Registration Statement or any
part thereof or any amendment thereto has been issued under the Act and
no proceeding for that purpose has been instituted or threatened by the
Commission.
(xvi) The Registration Statement relating to the Notes as of
its effective date and the Prospectus as of the date of this Agreement,
and any amendment or supplement thereto, as of its date, complied as to
form in all material respects with the requirements of the Act and the
applicable Rules and Regulations. Such counsel need express no opinion
with respect to the financial statements, the exhibits, annexes and
other financial, statistical, numerical or portfolio data, economic
conditions or financial condition of the portfolio information included
in or incorporated by reference into the Registration Statement
relating to the Notes, the Prospectus or any amendment or supplement
thereto.
(xvii) 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 the date of this Agreement,
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
18
with respect to the financial, statistical or computational material
included in or incorporated by reference into the Registration
Statement relating to the Notes, the Prospectus or any amendment or
supplement thereto.
Such opinion may contain such assumptions, qualifications and
limitations as are customary in opinions of this type and are reasonably
acceptable to counsel to the Underwriter. In rendering such opinion, such
counsel may state that they express no opinion as to the laws of any
jurisdiction other than the federal law of the United States of America and the
laws of the State of New York.
(f) You shall have received an opinion of Sills, Cummis, counsel to the
Depositor, BMW FS and the Trust, addressed to the Underwriters, dated the
Closing Date and satisfactory in form and substance to you and counsel to the
Underwriters, to the effect that:
(i) If a court concludes that the transfer of the Receivables
from BFFC to BMW FS is a sale, the ownership interest of BMW FS in the
Receivables and the proceeds thereof will have been perfected by the
filing of a UCC financing statement with all applicable governmental
offices and will constitute a perfected first priority interest
therein. If a court concludes that such transfer is not a sale, the
Second Tier Receivables Purchase Agreement constitutes a grant by BFFC
to BMW FS of a valid security interest in the Receivables and the
proceeds of each of the foregoing, which security interest will have
been perfected upon the filing of a UCC financing statement with all
applicable governmental offices and will constitute a perfected first
priority security interest therein. No filing or other action, other
than the filing of the UCC financing statements referred to above and
any required continuation statements thereto, was or will be necessary
to perfect and maintain the interest of BMW FS in the Receivables and
the proceeds of each of the foregoing against third parties.
(ii) If a court concludes that the transfer of the Receivables
from BMW FS to the Depositor is a sale, the ownership interest of the
Depositor in the Receivables and the proceeds thereof will have been
perfected by the filing of a UCC financing statement with all
applicable governmental offices and will constitute a perfected first
priority interest therein. If a court concludes that such transfer is
not a sale, the Second Tier Receivables Purchase Agreement constitutes
a grant by BMW FS to the Depositor of a valid security interest in the
Receivables and the proceeds of each of the foregoing, which security
interest will have been perfected upon the filing of a UCC financing
statement with all applicable governmental offices and will constitute
a perfected first priority security interest therein. No filing or
other action, other than the filing of the UCC financing statements
referred to above and any required continuation statements thereto, was
or will be necessary to perfect and maintain the interest of the
Depositor in the Receivables and the proceeds of each of the foregoing
against third parties.
19
(iii) Immediately before the transfer of the Receivables to
the Trust pursuant to the Sale and Servicing Agreement, the Depositor's
interest in the Receivables and the proceeds of each of the foregoing
was perfected upon the filing of a UCC financing statement with all
applicable governmental offices and constituted a perfected first
priority interest therein. If a court concludes that the transfer of
the Receivables from the Depositor to the Trust is a sale, the
ownership interest of the Trust in the Receivables and the proceeds of
each of the foregoing will have been perfected by the filing of a UCC
financing statement with all applicable governmental offices and will
constitute a perfected first priority interest therein. If a court
concludes that such transfer is not a sale, the Sale and Servicing
Agreement constitutes a grant by the Depositor to the Trust of a valid
security interest in the Receivables and the proceeds of each of the
foregoing, which security interest will have been perfected upon the
filing of a UCC financing statement with all applicable governmental
offices and will constitute a perfected first priority security
interest therein. No filing or other action, other than the filing of
the UCC financing statements referred to above and any required
continuation statements thereto, was or will be necessary to perfect
and maintain the interest of the Trust in the Receivables and the
proceeds of each of the foregoing against third parties.
(iv) The Receivables are chattel paper or general intangibles
as defined in the Uniform Commercial Code as in effect in New Jersey.
(g) Weil, Gotshal & Xxxxxx LLP, in its capacity as Federal tax and
ERISA counsel for the Depositor and the Trust, shall have delivered an opinion
satisfactory in form and substance to the Representative and counsel to the
Underwriters, dated the Closing Date and addressed to you, to the effect that
the statements in the Prospectus Supplement under the heading "Summary of Terms
- Tax Status" and "Material Income Tax Consequences," and in the Base Prospectus
under the heading ["Summary of Terms - Tax Status"] and "Material Federal Income
Tax Consequences" to the extent they constitute matters of law or legal
conclusions, accurately describe the material Federal income tax consequences to
the Noteholders, and the statements in the Prospectus Supplement under the
heading "Summary of Terms - ERISA Considerations" and "ERISA Considerations" and
in the Base Prospectus under the heading ["Summary of Terms - ERISA
Considerations"] and "ERISA Considerations" have been prepared or reviewed by
such counsel and, to the extent they constitute matters of law or legal
conclusions, accurately describe the material consequences to the Noteholders
under ERISA.
(h) Weil, Gotshal & Xxxxxx LLP, in its capacity as counsel for the
Depositor and the Trust, shall have delivered an opinion satisfactory in form
and substance to the Representative and their counsel, dated the Closing Date
and addressed to the Representative, with respect to (i) the consolidation of
the assets and liabilities of the Depositor with those of BMW FS under the
doctrine of substantive consolidation, (ii) the creation of a "true sale" with
respect to the sale of the Receivables from BFFC to BMW FS and from BMW FS to
20
the Depositor and (iii) the validity of the Notes and such other related matters
as the Underwriter shall reasonably require and the Depositor shall have
furnished or caused to be furnished to such counsel such documents as they may
reasonably request for the purpose of enabling them to pass upon such matters.
Such opinions shall be limited to the laws of the State of New York and United
States federal law.
(i) You shall have received an opinion addressed to the Underwriters of
[Thacher, Xxxxxxxx & Xxxx], counsel to the Indenture Trustee, dated the Closing
Date and satisfactory in form and substance to you and counsel to the
Underwriters, to the effect that:
(i) The Indenture Trustee is a banking corporation duly
incorporated and validly existing under the laws of the State of New
York.
(ii) The Indenture Trustee has the full corporate trust power
to accept the office of trustee under Indenture and to enter into and
perform its obligations under the Indenture.
(iii) The execution and delivery of the Indenture and the
performance by the Indenture Trustee of its obligations under the
Indenture have been duly authorized by all necessary action of the
Indenture Trustee.
(iv) The Indenture constitutes a valid and binding obligation
of the Indenture Trustee enforceable against it in accordance with
their terms under the laws of New York and the Federal laws of the
United States.
(v) The execution and delivery by the Indenture Trustee of the
Indenture does not require any consent, approval or authorization of,
or any registration or filing with, any New York or United States
Federal governmental authority.
(vi) Each of the Notes has been duly executed by the Indenture
Trustee as trustee and authenticating agent.
(j) You shall have received an opinion addressed to the Underwriters,
of [Xxxxxxxx, Xxxxxx & Finger], counsel to the Owner Trustee, dated the Closing
Date and satisfactory in form and substance to you and counsel to the
Underwriters, to the effect that:
(i) The Owner Trustee is duly formed and validly existing as a
[national banking association] under the laws of the [United States of
America] with trust powers and with its principal place of business in
the State of Delaware.
21
(ii) The Owner Trustee has the full corporate trust power to
accept the office of trustee under the Trust Agreement and the Sale and
Servicing Agreement and to enter into and perform its obligations under
the Trust Agreement and the Sale and Servicing Agreement.
(iii) The execution and delivery of the Trust Agreement and
the Sale and Servicing Agreement and the performance by the Owner
Trustee of its obligations under the Trust Agreement and the Sale and
Servicing Agreement have been duly authorized by all necessary action
of the Owner Trustee.
(iv) The execution and delivery by the Owner Trustee of the
Trust Agreement and the Sale and Servicing Agreement does not require
any consent, approval or authorization of, or any registration or
filing with, any New York, Delaware or United States Federal
governmental authority.
(v) The Owner Trustee has duly authorized, executed and
delivered the Trust Agreement and the Sale and Servicing Agreement and
on behalf of the Trust, the Owner Trustee has duly executed and
delivered the Transaction Documents to which the Trust is a party.
(vi) The Notes have been duly executed and delivered by the
Owner Trustee, on behalf of the Trust.
(k) You shall have received an opinion addressed to the Underwriters,
of Xxxxxxxx, Xxxxxx & Finger, special Delaware counsel for the Trust, dated the
Closing Date and satisfactory in form and substance to you and counsel to the
Underwriters, to the effect that:
(i) The Trust Agreement constitutes the valid and binding
obligation of the Owner Trustee and the Depositor enforceable against
the Owner Trustee and the Depositor in accordance with its terms
subject to (i) applicable bankruptcy, insolvency, moratorium,
receivership, reorganization, fraudulent conveyance and similar laws
relating to and affecting the rights and remedies of creditors
generally, and (ii) principles of equity (regardless of whether
considered and applied in a proceeding in equity or at law).
(ii) The Trust has been duly formed and is validly existing as
a business trust under the Delaware Business Trust Act (the "Business
Trust Act") and has the power and authority under the Trust Agreement
and the Business Trust Act to execute, deliver and perform its
obligations under the Transaction Documents to which the Trust is a
party.
(iii) The Transaction Documents have been duly authorized,
executed and delivered by the Trust.
22
(iv) To the extent that Article 9 of the Uniform Commercial
Code as in effect in the State of Delaware (the "Delaware UCC") is
applicable (without regard to conflicts of laws principles), and
assuming that the security interest created by each of the Sale and
Servicing Agreement and the Indenture in the Receivables has been duly
created and has attached, upon the filing of UCC-1 financing statements
with the Secretary of State of the State of Delaware the Trust will
have a perfected security interest in the transfer of Receivables
pursuant to the Indenture and the proceeds thereof, and such security
interest will be prior to any other security interest that is perfected
solely by the filing of financing statements under the Delaware UCC,
excluding purchase money security interests under ss. 9-312(4) of the
UCC and temporarily perfected security interests in proceeds under ss.
9-306(3) of the Delaware UCC and the Trustee will have a perfected
security interest in such Receivables and the proceeds thereof, and
such security interest will be prior to any other security interest
that is perfected solely by the filing of financing statements under
the Delaware UCC, excluding purchase money security interests under ss.
9-312(4) of the UCC and temporarily perfected security interests in
proceeds under ss. 9-306(3) of the Delaware UCC.
(v) No re-filing or other action is necessary under the
Delaware UCC in order to maintain the perfection of such security
interests except for the filing of continuation statements at five year
intervals.
(vi) Under ss. 3805(b) of the Business Trust Act, no creditor
of any Certificateholder shall have any right to obtain possession of,
or otherwise exercise legal or equitable remedies with respect to, the
property of the Trust except in accordance with the terms of the Trust
Agreement.
(vii) Under ss. 3805(c) of the Business Trust Act, and
assuming that the Sale and Servicing Agreement conveys good title to
the Receivables to the Trust as a true sale and not as a security
arrangement, the Trust rather than the holder of the Certificates is
the owner of the Receivables.
(viii) Neither the execution, delivery and performance by the
Owner Trustee of the Trust Agreement and, on behalf of the Trust, the
Transaction Documents to which the Trust is a party, do not require any
consent, approval or authorization of, or any registration or filing
with, any governmental authority of the State of Delaware, except for
the filing of the Certificate of Trust with the Secretary of State.
(ix) Neither the consummation by the Owner Trustee of the
transactions contemplated in the Trust Agreement or, on behalf of the
Trust, the transactions contemplated in the Transaction Documents to
which the Trust is a party nor the fulfillment of the terms thereof by
23
the Owner Trustee will conflict with or result in a breach or violation
of any law of the State of Delaware.
(l) The Representative shall have received copies of each opinion of
counsel delivered to any rating agency, together with a letter addressed to the
Underwriters, dated the Closing Date, to the effect that the Underwriters may
rely on each such opinion to the same extent as though such opinion was
addressed to each as of its date.
(m) You shall have received certificates dated the Closing Date of any
two of the President, Chief Financial Officer, any Vice President, the
Controller or the Treasurer of the Depositor, BFFC and BMW FS in which such
officers shall state that: (A) the representations and warranties made by such
entity contained in the Transaction Documents and this Agreement are true and
correct, that such party has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied under such agreements on or
before the Closing Date, (B) since the date of this Agreement there has not
occurred any material adverse change, or any development involving a prospective
material adverse change, in or affecting the condition, financial or otherwise,
or in the earnings, business or operations of the Trust, the Depositor, BFFC or
BMW FS except as disclosed to you in writing and (C) no stop order suspending
the effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or are contemplated by the
Commission.
(n) You shall have received evidence satisfactory to you that, on or
before the Closing Date, UCC-1 financing statements have been or are being filed
in all applicable governmental offices reflecting (A) the transfer of the
interest of BFFC in the Receivables and the proceeds thereof to BMW FS pursuant
to the First Tier Receivables Purchase Agreement, (B) the transfer of the
interest of BMW FS in the First Tier Receivables Purchase Agreement and the
Receivables, and the proceeds thereof to the Depositor pursuant to the Second
Tier Receivables Purchase Agreement, (C) the transfer of the interest of the
Depositor in the First Tier Receivables Purchase Agreement and the Second Tier
Receivables Purchase Agreement, the Receivables, and the proceeds thereof to the
Trust pursuant to the Sale and Servicing Agreement, and (D) the grant by the
Trust to the Indenture Trustee under the Indenture of a security interest in the
interest of the Trust in the First Tier Receivables Purchase Agreement, the
Second Tier Receivables Purchase Agreement, the Receivables, the Collateral and
the proceeds thereof.
(o) The Class A-1 Notes shall have been rated in the highest short-term
rating by both Standard and Poor's, a division of The XxXxxx- Xxxx Companies,
Inc. ("S&P") and Xxxxx'x Investors Service, Inc. ("Moody's"). The Class A notes
(other than the Class A-1 Notes) shall have been rated in the highest long-term
rating by both S&P and Moody's. The Class B Notes shall have been rated at least
in the single "A" rating category by both S&P and Moody's.
24
(p) No Early Amortization Event or other event or condition, which
event or condition with notice, the passage of time or both could result in an
Early Amortization Event, shall have occurred or shall exist with respect to any
securities issued by the Trust that are outstanding on the Closing Date.
(q) You shall have received, from each of BMW FS, BFFC and the
Depositor, a certificate executed by a secretary or assistant secretary thereof
to which shall be attached certified copies of the: (i) charter, (ii) by-laws,
(iii) applicable resolutions and (iv) designation of incumbency of each such
entity.
The Depositor will provide or cause to be provided to you conformed
copies of such opinions, certificates, letters and documents as you or your
counsel reasonably request.
SECTION 8. Termination. This Agreement shall be subject to termination
in the sole discretion of the Representative by notice to the Depositor given on
or prior to the Closing Date in the event that the Depositor shall have failed,
refused or been unable to perform all obligations and satisfy all conditions on
its part to be performed or satisfied hereunder at or prior thereto or, if at or
prior to the Closing Date, (a) trading in securities generally on the New York
Stock Exchange shall have been suspended or materially limited or minimum or
maximum prices shall have been established by or on, as the case may be, the
Securities and Exchange Commission or the New York Stock Exchange; (b) trading
of any securities of the Depositor or any affiliate of the Depositor shall have
been suspended on any exchange or in any over-the-counter market; (c) a general
moratorium on commercial banking activities shall have been declared by either
federal, New Jersey State authorities or New York State authorities; (d) there
shall have occurred (i) an outbreak or escalation of hostilities between the
United States and any foreign power, (ii) an outbreak or escalation of any other
insurrection or armed conflict involving the United States, or (iii) any other
calamity or crisis or materially adverse change in general economic, political
or financial conditions having an effect on the U.S. financial markets that, in
the sole judgment of the Representative, makes it impractical or inadvisable to
proceed with the offering or the delivery of the Notes as contemplated by the
Prospectus, as amended as of the date hereof; (e) any change, or any development
involving a prospective change, in or affecting the Receivables or particularly
the business or properties of the Trust, the Depositor or BMW FS shall have
occurred which, in the judgment of the Representative, materially impairs the
investment quality of the Notes or makes it impractical or inadvisable to market
the Notes; or (f) any downgrading in the rating of any debt securities of the
Depositor or any of its Affiliates, if any, by any "nationally recognized
statistical rating organization" (as defined for purposes of Rule 436(g) under
the Act), or any public announcement that any such organization has under
surveillance or review its rating of any such debt securities (other than an
announcement with positive implications of a possible upgrading, and no
implication of a possible downgrading, of such rating) shall have occurred.
Termination of this Agreement pursuant to this Section 8 shall be without
liability of any party to any other party except for the liability of the
Depositor in relation to expenses as provided in Sections 6 hereof, the
25
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 FS will, jointly and severally, indemnify and
hold harmless each Underwriter, the directors, officers, employees and agents of
each Underwriter and each person, if any, who controls any Underwriter within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act against any and all losses, claims, damages or liabilities, joint or
several, to which such Underwriter or such controlling person may become subject
under the Securities Act or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based upon:
(i) any untrue statement or alleged untrue statement made by
the Depositor or BMW FS in Section 2 hereof,
(ii) any untrue statement or alleged untrue statement of any
material fact contained or incorporated in the Registration Statement,
any preliminary prospectus or the Prospectus or any amendment or
supplement thereto, or
(iii) the omission or alleged omission to state in the
Registration Statement , any preliminary prospectus or the Prospectus
or any amendment or supplement thereto a material fact required to be
stated therein or necessary to make the statements therein, not
misleading,
and will reimburse, as incurred, each such indemnified party for any legal or
other costs or expenses reasonably incurred by it in connection with
investigating, defending against or appearing as a third-party witness in
connection with any such loss, claim, damage, liability or action; provided,
however, that the Depositor and BMW FS will not be liable in any such case to
the extent that any such loss, claim, damage or liability arises out of or is
based upon any untrue statement or alleged untrue statement or omission or
alleged omission made in any preliminary prospectus or the Prospectus or any
amendment or supplement thereto in reliance upon and in conformity with the
Underwriters' Information; provided, further, that the Depositor and BMW FS
shall not be liable to any Underwriter or any of the directors, officers,
employees and agents of an Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act with respect to any loss, claim, damage or liability that
results from the fact that the Underwriter sold Notes to a person to whom there
was not sent or given, at or prior to the written confirmation of such sale, if
delivery thereof was required, a copy of the Prospectus or of the Prospectus as
then amended or supplemented, whichever is most recent, if the Depositor has
previously furnished copies thereof to such Underwriter. The indemnity provided
for in this Section 9 shall be in addition to any liability which the Depositor
and BMW FS may otherwise have. The Depositor and BMW FS will not, without the
prior written consent of the Representative, settle or compromise or consent to
26
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 FS, each of its directors and
officers and each person, if any, who controls the Depositor or BMW FS within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act against any losses, claims, damages or liabilities to which the Depositor,
BMW FS or any such director, officer or controlling person may become subject
under the Securities Act or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based upon
(i) any untrue statement or alleged untrue statement of any material fact
contained in the Registration Statement (or any amendment thereto) or any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto) or (ii) the omission or the alleged omission to state in the
Registration Statement (or any amendment thereto) or any preliminary prospectus
or the Prospectus (or any amendment or supplement thereto) a material fact
required to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission was made
in reliance upon and in conformity with the Underwriters' Information, and,
subject to the limitation set forth immediately preceding this clause, will
reimburse, as incurred, any legal or other expenses reasonably incurred by the
Depositor, BMW FS or any such director, officer or controlling person in
connection with investigating, defending against or appearing as a third-party
witness in connection with any such loss, claim, damage, liability or any action
in respect thereof. The remedies provided for in this Section 9 are not
exclusive and shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to paragraph (a) or (b) of this Section 9, such person (for
purposes of this paragraph (c), the "indemnified party") shall, promptly after
receipt by such party of notice of the commencement of such action, notify the
person against whom such indemnity may be sought (for purposes of this paragraph
(c), the "indemnifying party"), but the omission so to notify the indemnifying
party will not relieve it from any liability which it may have to any
indemnified party otherwise than under this Section 9. In case any such action
is brought against any indemnified party, and it notifies the indemnifying party
of the commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel reasonably satisfactory to such indemnified party (which may be counsel
27
to such indemnifying party if otherwise reasonably acceptable to the indemnified
party); provided, however, that if the defendants in any such action include
both the indemnified party and the indemnifying party and the indemnified party
shall have reasonably concluded that there may be one or more legal defenses
available to it and/or other indemnified parties which are different from or
additional to those available to the indemnifying party, the indemnifying party
shall not have the right to direct the defense of such action on behalf of such
indemnified party or parties and such indemnified party or parties shall have
the right to select separate counsel to defend such action on behalf of such
indemnified party or parties. After notice from the indemnifying party to such
indemnified party of its election so to assume the defense of any such action
and approval by such indemnified party of counsel appointed to defend such
action, the indemnifying party will not be liable to such indemnified party
under this Section 9 for any legal or other expenses, other than reasonable
costs of investigation, subsequently incurred by such indemnified party in
connection with the defense thereof, unless (i) the indemnified party shall have
employed separate counsel in accordance with the proviso to the next preceding
sentence (it being understood, however, that in connection with such action the
indemnifying party shall not be liable for the expenses of more than one
separate counsel (in addition to local counsel in each applicable local
jurisdiction) in any one action or separate but substantially similar actions
arising out of the same general allegations or circumstances, designated in
writing by the Representative in the case of paragraph (a) of this Section 9,
representing the indemnified parties under such paragraph (a) who are parties to
such action or actions), or (ii) the indemnifying party does not promptly retain
counsel satisfactory to the indemnified party, or (iii) the indemnifying party
has authorized the employment of counsel for the indemnified party at the
expense of the indemnifying party. All fees and expenses reimbursed pursuant to
this paragraph (c) shall be reimbursed as they are incurred. After such notice
from the indemnifying party to such indemnified party, the indemnifying party
will not be liable for the costs and expenses of any settlement of such action
effected by such indemnified party without the consent of the indemnifying
party.
(d) In circumstances in which the indemnity agreement provided for in
the preceding paragraphs of this Section 9 is unavailable or insufficient, for
any reason, to hold harmless an indemnified party in respect of any losses,
claims, damages or liabilities (or actions in respect thereof), each
indemnifying party, in order to provide for just and equitable contribution,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (or actions in respect
thereof) in such proportion as is appropriate to reflect (i) the relative
benefits received by the indemnifying party or parties on the one hand and the
indemnified party on the other from the offering of Notes or (ii) if the
allocation provided by the foregoing clause (i) is not permitted by applicable
law, not only such relative benefits but also the relative fault of the
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
28
considerations. The relative benefits received by the Depositor and BMW FS on
the one hand and the Underwriters on the other shall be deemed to be in the same
proportion as the total proceeds from the offering of the Notes (before
deducting expenses) received by the Depositor bear to the total discounts and
commissions received by the Underwriters (the "Spread"), in each case as set
forth in the Prospectus Supplement. The relative fault of the parties shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Depositor, BMW FS 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 FS
and the Underwriters agree that it would not be equitable if the amount of such
contribution were determined by pro rata or per capita allocation (even if the
Underwriters were treated as one entity for such purpose) or by any other method
of allocation that does not take into account the equitable considerations
referred to above in this paragraph (d). Notwithstanding any other provision of
this paragraph (d), no Underwriter shall be obligated to make contributions
hereunder that in the aggregate exceed the amount by which the Spread received
by it in the initial offering of such Notes, less the aggregate amount of any
damages that such Underwriter has otherwise been required to pay in respect of
the same or any substantially similar claim, and no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations to contribute
hereunder are several in proportion to their respective principal amount of
Securities they have purchased hereunder, and not joint. For purposes of this
paragraph (d), each person, if any, who controls an Underwriter within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act,
and each director, officer, employee and agent of an Underwriter shall have the
same rights to contribution as such Underwriter, and each director of the
Depositor and BMW FS, each officer of the Depositor and BMW FS and each person,
if any, who controls the Depositor and BMW FS within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act, shall have the same
rights to contribution as the Depositor and BMW FS.
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
29
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 FS, their affiliates and any non-defaulting
Underwriter(s) for damages occasioned by its default hereunder.
SECTION 11. Survival of Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements set
forth in or made pursuant to this Agreement or contained in certificates of
officers submitted pursuant hereto shall remain operative and in full force and
effect, regardless of any investigation or statement as to the results thereof,
and will survive delivery of and payment for the Notes. If for any reason the
purchase of the Notes by the Underwriters is not consummated, each of the
Depositor and BMW FS shall remain responsible for the expenses to be paid or
reimbursed pursuant to Section 6 and the obligations pursuant to Section 9 shall
remain in effect. If for any reason the purchase of the Notes by the
Underwriters is not consummated, the Depositor and BMW FS will reimburse the
Underwriters severally, upon demand, for all out-of-pocket expenses (including
fees and disbursements of counsel) incurred by any Underwriter in connection
with the offering of the Notes.
SECTION 12. Notices. In all dealings hereunder, you shall act on behalf
of each of the Underwriters, and the parties hereto shall be entitled to act and
rely upon any statement, request, notice or agreement on behalf of any
Underwriter made or given by the Representative. Any notice or notification in
any form to be given under this Agreement may be delivered in person or sent by
telex, facsimile or telephone (subject in the case of a communication by
telephone to confirmation by telex or facsimile) addressed to:
in the case of the Depositor:
BMW FS Securities LLC
-------------------
---------------
Facsimile:
Telex:
Attention:
30
in the case of BMW FS:
BMW FS Financial Services NA, LLC
0000 Xxxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Facsimile:
Telex:
Attention:
in the case of the Representative:
JPMorgan a division of Chase Securities Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile:
Telex:
Attention:
Any such notice shall take effect, in the case of delivery, at the time of
delivery and, in the case of telex or facsimile, at the time of dispatch.
SECTION 13. Successors. This Agreement will inure to the benefit of and
be binding upon the parties hereto, their respective successors and agents, and
the directors, officers and control persons referred to in Section 9, and no
other person will have any rights or obligations hereunder.
SECTION 14. Miscellaneous.
-------------
(a) Time shall be of the essence of this Agreement.
(b) The headings herein are inserted for convenience of reference only
and are not intended to be part of, or to affect, the meaning or interpretation
of this Agreement.
(c) For purposes of this Agreement, (a) "business day" means any day on
which the New York Stock Exchange is open for trading, and (b) "subsidiary" has
the meaning set forth in Rule 405 under the Securities Act.
31
(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 FS 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 FS contained in Section 9 hereof shall
also be for the benefit of any person or persons who control any Underwriter
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act and (ii) the indemnities of the Underwriters contained in Section 9
hereof shall also be for the benefit of the directors of the Depositor and BMW
FS, the officers of the Depositor and BMW FS and any person or persons who
control the Depositor or BMW FS within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act. No purchaser of Notes from any
Underwriter shall be deemed a successor because of such purchase.
(f) The respective representations, warranties, agreements, covenants,
indemnities and other statements of the Depositor and BMW FS, its officers and
the several Underwriters set forth in this Agreement or made by or on behalf of
them, respectively, pursuant to this Agreement shall remain in full force and
effect, regardless of (i) any investigation made by or on behalf of the
Depositor or BMW FS, any of its officers, directors, employees or agents, any
Underwriter or any controlling person referred to in Section 9 hereof and (ii)
delivery of and payment for the Notes. The respective agreements, covenants,
indemnities and other statements set forth in Sections 5 and 9 hereof shall
remain in full force and effect, regardless of any termination or cancellation
of this Agreement.
SECTION 15. Severability. It is the desire and intent of the parties
that the provisions of this Agreement be enforced to the fullest extent
permissible under the law and public policies applied in each jurisdiction in
which enforcement is sought. Accordingly, in the event that any provision of
this Agreement would be held in any jurisdiction to be invalid, prohibited or
unenforceable for any reason, such provision, as to such jurisdiction, shall be
ineffective, without invalidating the remaining provisions of this Agreement or
affecting the validity or enforceability of such provision in any other
jurisdiction.
SECTION 16. Governing Law. The validity and interpretation of this
Agreement, and the terms and conditions set forth herein, shall be governed by
and construed in accordance with the laws of the State of New York, without
giving effect to any provisions relating to conflicts of laws.
32
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 FS.
Very truly yours,
BMW FS SECURITIES LLC
By:______________________
Name:
Title:
BMW FS FINANCIAL SERVICES NA, LLC
By:______________________
Name:
Title:
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
JPMORGAN a division of
CHASE SECURITIES INC.
on behalf of itself and as Representative of the
several Underwriters
By:___________________
Name:
Title:
33
SCHEDULE I
Principal Amount of
-------------------
Underwriter Notes Purchased
----------- ---------------
JPMorgan a division of Chase Securities Inc. $
$
Total Amount of Notes Purchased $
SCHEDULE II
Original
Principal Investor Investor
Security Balance $ Price % Price $ Price % Price $ Rate %
-------- --------- ------- ------- ------- ------- ------
Class A-1 Notes
Class A-2 Notes
Class A-3 Notes
Class A-4 Notes
Class B Notes
Total Price to Public: $
Total Price to Depositor:
Underwriting Discounts
and Commissions: $
SCHEDULE III
