EXHIBIT 1.1
BMW VEHICLE OWNER TRUST 2006-A
$1,108,996,000 ASSET BACKED NOTES
BMW FS SECURITIES LLC
(DEPOSITOR)
UNDERWRITING AGREEMENT
September 13, 2006
Barclays Capital Inc.
As Representative of the Several Underwriters
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Dear Sirs:
SECTION 1. Introductory. BMW FS Securities LLC (the "Depositor")
proposes to cause BMW Vehicle Owner Trust 2006-A (the "Trust") to issue and sell
$323,000,000 principal amount of its 5.36344% Class A-1 Notes (the "Class A-1
Notes"), $308,000,000 principal amount of its 5.30% Class A-2 Notes (the "Class
A-2 Notes"), $280,000,000 principal amount of its 5.13% Class A-3 Notes (the
"Class A-3 Notes"), $173,044,000 principal amount of its 5.07% 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 $24,952,000 principal
amount of its 5.19% 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 Barclays Capital Inc. is acting as
representative (the "Representative"). The Notes will be issued pursuant to an
Indenture, dated as of September 1, 2006 (the "Indenture"), between the Trust
and Deutsche Bank Trust Company Americas, as indenture trustee (in such
capacity, the "Indenture Trustee"). The assets of the Trust will include, among
other things, a pool of motor vehicle retail installment sale contracts
transferred to the Trust on the Closing Date referred to in Section 3(a) hereof
(the "Receivables") secured by new and used automobiles, motorcycles, light-duty
trucks and sport utility vehicles financed thereby (the "Vehicles") and certain
monies received thereunder after the close of business on August 31, 2006 (the
"Cutoff Date") and other property and proceeds thereof to be conveyed to the
Trust pursuant to a Sale and Servicing Agreement dated as of September 1, 2006
(the "Sale and Servicing Agreement"), among the Trust, BMW Financial Services
NA, LLC ("BMW Financial Services"), as servicer (in such capacity, the
"Servicer"), seller, sponsor, administrator and custodian, the Depositor and the
Indenture Trustee. Pursuant to the Sale and Servicing Agreement, the Depositor
will sell the Receivables to the Trust and the Servicer will service the
Receivables on behalf of the Trust. In addition, pursuant to an Owner Trust
Administration Agreement dated as of September 1, 2006 (the "Owner Trust
Administration Agreement"), among the Trust, BMW Financial Services and the
Indenture Trustee, BMW Financial Services will agree to perform certain
administrative duties on behalf of the Trust. The Depositor formed the Trust
pursuant to a Trust Agreement dated August 14, 2006, as amended and restated as
of September 1, 2006 (the "Trust Agreement"), between the Depositor and
Wilmington Trust Company, as owner trustee (the "Owner Trustee"). The
Certificates, each representing a fractional undivided interest in the Trust,
will be issued pursuant to the Trust Agreement.
The Depositor will acquire the Receivables from BMW Financial Services
pursuant to a Receivables Purchase Agreement, dated as of September 1, 2006 (the
"Receivables Purchase Agreement"), between the Depositor and BMW Financial
Services. BMW Financial Services will acquire the Receivables from BMW FS
Funding Corp. ("BFFC") pursuant to a Bill of Sale, dated as of September 1, 2006
(the "Bill of Sale"), between BFFC and BMW Financial Services.
Capitalized terms used but not otherwise defined herein shall have the
meanings set forth in the Sale and Servicing Agreement or the Indenture, as the
case may be. As used herein, the term "Transaction Documents" refers to the Sale
and Servicing Agreement, the Indenture, the Trust Agreement, the Bill of Sale,
the Receivables Purchase Agreement, the Owner Trust Administration Agreement and
the Note Depository Agreement.
At or prior to the time when sales (including any contracts of sale) of
the Notes were first made to investors by the Underwriters, which shall be
deemed to be 11:08 a.m. on September 13, 2006 (the "Time of Sale"), the
Depositor had prepared the following information (together, as a whole, the
"Time of Sale Information"): (i) the preliminary prospectus supplement dated
September 11, 2006 and the Prospectus dated August 11, 2006 (together, along
with any information referred to under the caption "Static Pool Information
About Certain Previously Securitized Pools" therein, regardless of whether it is
deemed a part of the Registration Statement or Prospectus under Rule 1105(d) of
Regulation AB, the "Preliminary Prospectus"), and (ii) each "free writing
prospectus" (as defined pursuant to Rule 405 of the Securities Act of 1933, as
amended (the "Act")) listed on Schedule IV hereto (as it may be amended with the
approval in writing of the parties hereto). If, subsequent to the Time of Sale
and prior to the Closing Date, it is determined by the parties that such
information included an untrue statement of material fact or omitted to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading, then the investors
may terminate their old "contracts of sale" (within the meaning of Rule 159
under the Act). If, following any such termination, the Underwriters, with prior
written notice to the Depositor and BMW Financial Services, enter into new
contracts of sale with investors for the Notes, then "Time of Sale Information"
will refer to the documents agreed upon in writing by the Depositor and the
Representative that correct such material misstatements or omissions (a
"Corrected Prospectus") and "Time of Sale" will refer to the time and date
agreed upon by the Depositor and the Representative.
SECTION 2. Representations and Warranties. (a) As a condition of the
obligation of the Underwriters to purchase the Notes, each of the Depositor and
BMW Financial Services makes the representations and warranties set forth below
to each of the Underwriters. To the extent a representation or warranty
specifically relates to the Depositor, the representation or warranty solely
with respect to the Depositor is only made by the Depositor and to the extent a
representation or warranty specifically relates to BMW Financial Services, the
representation or warranty solely with respect to BMW Financial Services is only
made by BMW Financial Services.
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(i) A registration statement on Form S-3 (No. 333-133845),
including a prospectus, relating to the Notes (x) has been filed with
the Securities and Exchange Commission (the "Commission") and has
become effective and is still effective as of the date hereof and (y)
was declared effective by the Commission within three years prior to
the Closing Date. Such registration statement, as amended as of the
date of this Agreement, together with any filings incorporated by
reference into it, is hereinafter referred to as the "Registration
Statement," and the prospectus included in such Registration
Statement, as supplemented to reflect the terms of the Notes as first
filed with the Commission after the date of this Agreement pursuant
to and in accordance with Rule 424(b) ("Rule 424(b)") under the Act,
including all material incorporated by reference therein (including
information referred to under the caption "Static Pools" therein,
regardless of whether it is a part of the Registration Statement or
Prospectus under Rule 1105(d) of Regulation AB), is hereinafter
referred to as the "Prospectus;" a "preliminary prospectus" means any
form of prospectus, including any prospectus supplement, relating to
the Notes that is subject to completion; the "Base Prospectus" means
the base prospectus dated August 11, 2006 included in the Prospectus;
the "Prospectus Supplement" means the prospectus supplement dated the
date hereof included in the Prospectus. The Depositor has filed the
Preliminary Prospectus on September 12, 2006, within the applicable
period of time required under the Act and the Rules and Regulations.
(ii) As of the applicable effective date as to each part
of the Registration Statement pursuant to Rule 430B(f)(2), and any
amendment thereto under the Act, 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, if any,
conform, and at the time of the filing of the Prospectus in
accordance with Rule 424(b), the Registration Statement and the
Prospectus will conform in all respects to the requirements of the
Act and the Rules and Regulations, and neither of such documents
includes or will include any untrue statement of a material fact or
omits or will omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading.
The preceding sentence does not apply to statements in or omissions
from such documents based upon written information furnished to the
Depositor by the Representative specifically for use therein which
information is limited to the information in the third paragraph, the
second sentence of the fifth paragraph and the seventh paragraph
under the heading "Plan of Distribution" in each preliminary
prospectus, if any, and the Prospectus Supplement (the "Underwriters'
Information").
(iii) Since the respective dates as of which information
is given in the Registration Statement and the Prospectus there has
not been any material adverse change, or any development involving a
prospective material adverse change, in or affecting the condition,
financial or otherwise, earnings, business or operations of the
Depositor or BMW Financial Services, and their respective
subsidiaries, taken as a whole, except as disclosed to the
Representative in writing prior to the date hereof.
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(iv) The Time of Sale Information, at the Time of Sale,
did not, and at the Closing Date will not, contain any untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading;
provided that the Depositor makes no representation and warranty with
respect to any statements or omissions made in reliance upon and in
conformity with the Underwriters' Information.
(v) The Notes are "asset backed securities" within the
meaning of, and satisfy the requirements for use of, Form S-3 under
the Act.
(vi) The documents incorporated by reference in the
Registration Statement, the Prospectus and the Time of Sale
Information, at the time they were or hereafter are filed with the
Commission, complied and will comply in all material respects with
the requirements of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), and the rules and regulations of the Commission
thereunder.
(vii) The Trust Agreement need not be qualified under the
Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"),
and the Trust is not required to register under the Investment
Company Act of 1940, as amended (the "Investment Company Act").
(viii) The Indenture has been qualified under the Trust
Indenture Act.
(ix) As of the Time of Sale, the Depositor was not and as
of the Closing Date, is not, an "ineligible issuer" as defined in
Rule 405 under the Act.
(x) The Depositor has filed or will file the Preliminary
Prospectus, each Free Writing Prospectus listed on Schedule IV or
approved in writing by the Depositor and any "issuer information" as
defined under Rule 433(h) under the Act included in any Free Writing
Prospectus permitted by this Agreement that is required to have been
filed under the Act and the Rules and Regulations and it has done or
will do so within the applicable periods of time required under the
Act and the Rules and Regulations.
(xi) The issuance and sale of the Notes have been duly
authorized by all necessary corporate action of the Depositor and,
when executed, authenticated and delivered to and paid for by the
Underwriters in accordance with the terms of this Agreement and the
Indenture, the Notes will be valid and binding obligations of the
Trust, entitled to the benefits of the Indenture and enforceable in
accordance with their terms, except as the enforceability thereof may
be limited by bankruptcy, insolvency, reorganization or similar laws
now or hereafter in effect relating to or affecting creditors' rights
generally and to general principles of equity (whether applied in a
proceeding at law or in equity).
(xii) Each of the Depositor, BMW Financial Services and
BFFC has been duly incorporated and is validly existing as a
corporation or limited liability company, as the case may be, in good
standing under the law of its jurisdiction of formation or
incorporation, as the case may be, with full power and authority to
own, lease and operate its properties and assets and conduct its
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business as described in the Prospectus and in the Time of Sale
Information, 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.
(xiii) The execution and delivery of this Agreement has
been duly authorized by all necessary corporate action of the
Depositor and BMW Financial Services, and this Agreement has been
duly executed and delivered by the Depositor and BMW Financial
Services and when duly executed and delivered by the other parties
hereto will be the valid and binding agreement of the Depositor and
BMW Financial Services, enforceable against the Depositor and BMW
Financial Services in accordance with its terms except as the
enforceability thereof may be limited by bankruptcy, insolvency,
reorganization or similar laws now or hereafter in effect relating to
or affecting creditors' rights generally and to general principles of
equity (whether applied in a proceeding at law or in equity).
(xiv) The execution and delivery of the Transaction
Documents have been duly authorized by all necessary corporate action
of the Depositor, BFFC and BMW Financial Services and, when duly
executed and delivered by the Depositor, BMW Financial Services, BFFC
and the other parties thereto, will be valid and binding agreements
of the Depositor, BMW Financial Services and BFFC, enforceable
against the Depositor, BMW Financial Services and BFFC in accordance
with their terms except as the enforceability thereof may be limited
by bankruptcy, insolvency, reorganization or similar laws now or
hereafter in effect relating to or affecting creditors' rights
generally and to general principles of equity (whether applied in a
proceeding at law or in equity).
(xv) The execution and delivery by the Depositor, BFFC and
BMW Financial Services of, and the performance by the Depositor and
BMW Financial Services of its obligations under, this Agreement, the
Transaction Documents and the Notes, the issuance and sale of the
Notes to the Underwriters by the Depositor pursuant to this
Agreement, the compliance by the Depositor and BMW Financial Services
with the other provisions of this Agreement and the consummation of
the other transactions herein contemplated do not (A) require the
consent, approval, authorization, registration or qualification of or
with any governmental authority, except such as have been obtained or
made or such as may be required by the state securities or Blue Sky
laws of the various states of the United States of America or other
U.S. jurisdictions in connection with the offering by the
Underwriters or (B) conflict with or result in a breach or violation
or acceleration of, or constitute a default under, any term or
provision of the organizational documents of the Depositor, BMW
Financial Services or BFFC, any indenture, mortgage, deed of trust,
lease or other agreement or instrument to which the Depositor, BMW
Financial Services or BFFC is a party or by which any of them or
their properties is bound or result in a violation of or contravene
the terms of any statute, order or regulation applicable to the
Depositor, BMW Financial Services or BFFC of any court, regulatory
body, administrative agency, governmental body or arbitrator having
jurisdiction over the Depositor, BMW Financial Services or BFFC, or
will result in the creation of any lien upon any material property or
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assets of the Depositor, BMW Financial Services or BFFC (other than
pursuant to the Transaction Documents).
(xvi) None of the Depositor, BMW Financial Services or
BFFC is in violation of any term or provision of its charter
documents or by-laws, or in breach of or in default under any statute
or any judgment, decree, order, rule or regulation of any court or
other governmental authority or any arbitrator applicable to the
Depositor, BMW Financial Services or BFFC, the consequence of which
violation, breach or default would have (A) a materially adverse
effect on or constitute a materially adverse change in, or constitute
a development involving a prospective materially adverse effect on or
change in, the condition (financial or otherwise), earnings,
properties, business affairs or business prospects, net worth or
results of operations of the Depositor, BMW Financial Services or
BFFC or (B) a material and adverse effect on its ability to perform
its obligations under this Agreement or any of the Transaction
Documents to which it is a party.
(xvii) Neither the Depositor nor BMW Financial Services
nor anyone acting on their behalf has taken any action that would
require registration of the Depositor or the Trust under the
Investment Company Act; nor will the Depositor or BMW Financial
Services act, nor has either of them authorized nor will either of
them authorize any person to act, in such manner.
(xviii) The Depositor, BFFC and BMW Financial Services
each possess all consents, licenses, certificates, authorizations and
permits issued by the appropriate federal, state or foreign
regulatory authorities necessary to conduct their respective
businesses, and none of the Depositor, BFFC or BMW Financial Services
has received any notice of proceedings relating to the revocation or
modification of any such certificate, authorization or permit which,
singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would have a material adverse effect on
or constitute a material adverse change in, or constitute a
development involving a prospective material adverse effect on or
change in, the condition (financial or otherwise), earnings,
properties, business affairs or business prospects, net worth or
results of operations of the Depositor, BFFC or BMW Financial
Services, except as described in or contemplated by the Prospectus.
(xix) No legal or governmental proceedings are pending or
threatened to which the Depositor or BMW Financial Services is a
party or to which the property of the Depositor or BMW Financial
Services is subject except for such proceedings that would not, if
the subject of any unfavorable decision, ruling or finding, singly or
in the aggregate, have a material adverse effect on the condition
(financial or otherwise), earnings, properties, business affairs or
business prospects, net worth or results of operations of the
Depositor or BMW Financial Services or the Depositor's or BMW
Financial Services' ability to perform its obligations under this
Agreement, the Transaction Documents to which it is a party or the
Notes.
(xx) 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
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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.
(xxi) The Notes and the Transaction Documents conform in
all material respects to the descriptions thereof contained in the
Prospectus.
(xxii) As of the Closing Date, each of the Depositor's,
BFFC's and BMW Financial Services' representations and warranties in
the Transaction Documents, will be true and correct and such
representations and warranties are incorporated herein by reference.
(xxiii) Other than as contemplated by this Agreement or as
disclosed in the Prospectus, there is no broker, finder or other
party that is entitled to receive from the Depositor or any of its
affiliates or the Underwriters, any brokerage or finder's fee or
other fee or commission as a result of any of the transactions
contemplated by this Agreement.
(xxiv) 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.
(xxv) BFFC's sale and assignment of a portion of the
Receivables to BMW Financial Services pursuant to the Bill of Sale
will vest in BMW Financial Services all of BFFC's right, title and
interest to the Receivables.
(xxvi) BMW Financial Services' sale and assignment of the
Receivables to the Depositor pursuant to the Receivables Purchase
Agreement will vest in the Depositor all of BMW Financial Services'
right, title and interest to the Receivables.
(xxvii) The Depositor's sale and assignment of the
Receivables to the Trust pursuant to the Sale and Servicing Agreement
will vest in the Trust all of the Depositor's right, title and
interest to the Receivables, including all of the Depositor's rights
under the Receivables Purchase Agreement.
(xxviii) The Trust's assignment of the Collateral to the
Indenture Trustee pursuant to the Indenture will vest in the
Indenture Trustee, for the benefit of the Noteholders, a first
priority perfected security interest therein, subject to no other
outstanding Lien.
(xxix) The Notes, when duly and validly executed by the
Indenture Trustee, authenticated and delivered in accordance with the
Indenture, and delivered and paid for pursuant hereto will be validly
issued and outstanding and will constitute legal, valid and binding
obligations of the Trust, entitled to the benefits of the Indenture
and enforceable in accordance with their terms.
(xxx) 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.
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(xxxi) 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.
(xxxii) The Receivables are "tangible chattel paper" or
"promissory notes" as defined in the Uniform Commercial Code ("UCC")
as in effect in the State of New York, the State of Delaware and the
State of Ohio.
(xxxiii) Under generally accepted accounting principles,
BFFC will report its transfer of the Receivables as a sale, BMW
Financial Services will report its transfer of the Receivables as a
sale, and the Depositor will report its transfer of the Receivables
to the Trust as a sale of the Receivables.
(xxxiv) Immediately prior to the transfer thereof to BMW
Financial Services pursuant to the Bill of Sale, BFFC is the sole
owner of all right, title and interest in, and has good and
marketable title to the Receivables and the other property to be
transferred to BMW Financial Services. BFFC, pursuant to the Bill of
Sale, is transferring to BMW Financial Services ownership of the
Receivables, the security interest in the Vehicles securing the
Receivables and the proceeds of each of the foregoing, and,
immediately prior to the transfer thereof to the Depositor, BMW
Financial Services will be the sole owner of all right, title and
interest in, and will have good and marketable title to, the
Receivables and the other property to be transferred by it to the
Depositor. BMW Financial Services, pursuant to the Receivables
Purchase Agreement, is transferring to the Depositor ownership of the
Receivables, the security interest in the Vehicles securing the
Receivables and the proceeds of each of the foregoing, and,
immediately prior to the transfer thereof to the Trust, the Depositor
will be the sole owner of all right, title and interest in, and will
have good and marketable title to, the Receivables and the other
property to be transferred by it to the Trust. The assignment of the
Receivables, all documents and instruments relating thereto and all
proceeds thereof to the Trust, pursuant to the Bill of Sale, the
Receivables Purchase Agreement and the Sale and Servicing Agreement,
vests in the Trust all interests which are purported to be conveyed
thereby, free and clear of any liens, security interests or
encumbrances (other than those permitted by the Transaction
Documents).
(xxxv) Immediately prior to the sale of the Receivables
from BFFC to BMW Financial Services, BFFC will file UCC-3 termination
statements (the "BFFC Financing Statements"), in the offices
specified in Schedule III hereto and there shall be no unreleased
statements affecting the Receivables filed in such offices or in the
office of the Secretary of State of the State of Delaware (the
"Transition Filing Office"). No other filing or other action is
necessary to perfect and maintain the interest of BMW Financial
Services in the Receivables and the proceeds thereof against third
parties.
(xxxvi) Immediately prior to the transfer of the
Receivables to the Depositor, the Depositor's interest in the
Receivables and the proceeds thereof shall be perfected upon the
filing of UCC-1 financing statements (the "BMW Financial Services
Financing Statements") in the offices specified in Schedule III
hereto and there shall be no unreleased statements affecting the
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Receivables filed in such offices or in the Transition Filing Offices
other than the BMW Financial Services Financing Statements. If a
court concludes that the transfer of the Receivables from BMW
Financial Services to the Depositor is a sale, the interest of the
Depositor in the Receivables and the proceeds thereof will be
perfected upon the filing of the BMW Financial Services Financing
Statements in the offices set forth in Schedule III hereto. If a
court concludes that such transfer is not a sale, the Receivables
Purchase Agreement and the transactions contemplated thereby
constitute a grant by BMW Financial Services to the Depositor of a
valid security interest in the Receivables and the proceeds thereof,
which security interest will be perfected upon the filing of the BMW
Financial Services Financing Statements in the offices specified in
Schedule III hereto. No other filing or other action is necessary to
perfect and maintain the interest or the security interest of the
Depositor in the Receivables and the proceeds thereof against third
parties.
(xxxvii) Immediately prior to the transfer of the
Receivables to the Trust, the Trust's interest in the Receivables and
the proceeds thereof shall be perfected upon the filing of UCC-1
financing statements (the "Depositor Financing Statements") in the
offices specified in Schedule III hereto and there shall be no
unreleased statements affecting the Receivables filed in such offices
other than the Depositor Financing Statements. If a court concludes
that the transfer of the Receivables from Depositor to the Trust is a
sale, the interest of the Trust in the Receivables and the proceeds
thereof will be perfected upon the filing of the Depositor Financing
Statements in the offices set forth in Schedule III hereto. If a
court concludes that such transfer is not a sale, the Sale and
Servicing Agreement and the transactions contemplated thereby
constitute a grant by Depositor to the Trust of a valid security
interest in the Receivables and the proceeds thereof, which security
interest will be perfected upon the filing of the Depositor Financing
Statements in the offices specified in Schedule III hereto. No other
filing or other action is necessary to perfect and maintain the
interest or the security interest of the Trust in the Receivables and
the proceeds thereof against third parties.
(xxxviii) Immediately prior to the pledge of the
Receivables to the Indenture Trustee, the Indenture Trustee's
interest in the Receivables and the proceeds thereof shall be
perfected upon the filing of UCC-1 financing statements (the "Trust
Financing Statements") in the offices specified in Schedule III
hereto. No other filing or other action is necessary to perfect and
maintain the interest or the security interest of the Indenture
Trustee in the Receivables and the proceeds thereof against third
parties.
(b) The above representations and warranties shall be deemed to be
repeated at the Closing Date.
SECTION 3. Purchase, Sale and Delivery of Notes. (a) On the basis of
the representations, warranties and agreements herein contained, but subject to
the terms and conditions herein set forth, the Depositor agrees to cause the
Trust to sell to each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Trust the respective principal amount of the
Notes set forth opposite the name of such Underwriter on Schedule I hereto, at a
purchase price (the "Purchase Price") equal to "Price $" as specified on
Schedule II hereto, plus accrued interest from September 22, 2006. Delivery of
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and payment for the Notes shall be made at the offices of Weil, Gotshal & Xxxxxx
LLP, 000 0xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, at 10:00 a.m. (New York City
time) on September 22, 2006 (or at such other place and time on the same or
other date as shall be agreed to in writing by the Representative and the
Depositor, the "Closing Date"). Delivery of one or more global notes
representing the Notes shall be made against payment of the aggregate purchase
price in immediately available funds drawn to the order of the Depositor. The
global notes to be so delivered shall be registered in the name of Cede & Co.,
as nominee of The Depository Trust Company ("DTC"). The interests of beneficial
owners of the Notes will be represented by book entries on the records of DTC
and participating members thereof. Definitive Notes representing the Notes will
be available only under those limited circumstances set forth in the Indenture.
(b) The Depositor hereby acknowledges that the payment of monies
pursuant to Section 3(a) hereof (a "Payment") by or on behalf of the
Underwriters of the aggregate Purchase Price for the Notes does not constitute
closing of a purchase and sale of the Notes. Only execution and delivery, by
facsimile or otherwise, of a receipt for Notes by the Representative indicates
completion of the closing of a purchase of the Notes from the Depositor.
Furthermore, in the event that the Underwriters make a Payment to the Depositor
prior to the completion of the closing of a purchase of Notes, the Depositor
hereby acknowledges that until the Representative executes and delivers such
receipt for the Notes the Depositor will not be entitled to the Payment and
shall return the Payment to the Underwriters as soon as practicable (by wire
transfer of same-day funds) upon demand. In the event that the closing of a
purchase of Notes is not completed and the Payment is not returned by the
Depositor to the Underwriters on the same day the Payment was received by the
Depositor, the Depositor agrees to pay to the Underwriters in respect of each
day the Payment is not returned by it, in same-day funds, interest on the amount
of such Payment in an amount representing the Underwriters' cost of financing as
reasonably determined by the Representative.
(c) It is understood that Barclays Capital Inc., 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, in the Time
of Sale Information and any Preliminary Prospectus.
SECTION 5. Covenants of the Depositor and BMW Financial Services. The
Depositor and BMW Financial Services, as applicable, each covenant and agree
with the Underwriters as set forth below. For purposes of this Section, the
Depositor and BMW Financial Services shall jointly make each of the covenants
set forth below in clauses (a), (b), (c), (e), (g), (h), (i), (k), (l) and (m)
and the entity specified in the covenant below shall make the covenants set
forth in all of the other clauses below.
(a) The Depositor will furnish to the Underwriters and counsel to the
Underwriters, without charge, as many copies of the Preliminary Prospectus, if
any, the 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.
10
(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 will file with the Commission each Free Writing Prospectus
listed on Schedule IV or approved in writing by the Depositor and any "issuer
information" (as defined above) included in any Free Writing Prospectus
permitted by this Agreement that the Depositor is required to file under the Act
and the Rules and Regulations, and in each case will do so within the applicable
period of time required under the Act and the Rules and Regulations. The
Depositor and BMW Financial Services will advise the Representative promptly of
any such filings.
(c) During the time that the Underwriters are required to deliver a
prospectus to investors, the Depositor and BMW Financial Services will advise
the Representative promptly of any proposal to amend or supplement the
Registration Statement, the Prospectus or the Time of Sale Information and will
not effect or file any such amendment or supplement without the consent of the
Representative, which consent shall not be unreasonably withheld. The Depositor
and BMW Financial Services will advise the Representative promptly of any
amendment or supplement of the Registration Statement or the Prospectus and of
the institution by the Commission of any order or action suspending the right to
use the Registration Statement, the Prospectus or the Time of Sale Information.
Each of the Depositor and BMW Financial Services will use its best efforts to
prevent the issuance of any such stop order and to obtain as soon as possible
its lifting, if issued. The Depositor and BMW Financial Services will comply
with the Act, the Exchange Act, the Trust Indenture Act and the rules and
regulations contemplated thereunder so as to permit the completion of the
distribution of the Notes as contemplated in this Agreement and in the
Prospectus. The Depositor will file with the Commission all documents required
to be filed pursuant to the Exchange Act within the time periods specified in
the Exchange Act or the rules and regulations promulgated thereunder.
(d) The Depositor will arrange for the qualification of the Notes for
offering and sale in each jurisdiction as the Representative shall designate
including, but not limited to, pursuant to applicable state securities Blue Sky
laws of certain states of the United States of America or other U.S.
jurisdictions so designated, and the Depositor shall maintain such
qualifications in effect for so long as may be necessary in order to complete
the placement of the Notes; provided, however, that the Depositor shall not be
obligated to file any general consent to service of process or to qualify as a
foreign limited liability company or as a securities dealer in any jurisdiction
or to subject itself to taxation in respect of doing business in any
jurisdiction in which it is not otherwise so subject. The Depositor will
promptly advise the Representative of the receipt by the Depositor of any
notification with respect to the suspension of the qualification of the Notes
for sale in any jurisdiction or the initiation or threatening of any proceeding
for such purpose.
(e) If, at any time when a prospectus relating to the Notes is
required to be delivered by an Underwriter or dealer either (i) any event occurs
as a result of which the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or (ii) for any other
reason it shall be necessary to amend or supplement the Prospectus or the Time
of Sale Information to comply with the Act, the Depositor and BMW Financial
11
Services promptly will notify the Representative of such event and promptly will
prepare, at their own expense, an amendment or supplement which will correct
such statement or omission. Neither the Underwriters' consent to, nor the
Underwriters' distribution of, any amendment or supplement to the Prospectus
shall constitute a waiver of any of the conditions set forth in Section 8
hereof.
(f) The Depositor will cooperate with the Representative and use its
best efforts to permit the Notes to be eligible for clearance and settlement
through DTC.
(g) BMW Financial Services and the Depositor shall (i) furnish or
make available to the Underwriters or their counsel such additional documents
and information regarding BMW Financial Services, the Depositor and their
respective affairs as the Underwriters may from time to time reasonably request
prior to the Closing Date, including any and all documentation reasonably
requested in connection with its due diligence efforts regarding information in
the Prospectus and in order to evidence the accuracy or completeness of any of
the conditions contained in this Agreement and (ii) provide the Underwriters or
their advisors, or both, prior to acceptance of its subscription, the
opportunity to ask questions of, and receive answers with respect to such
matters.
(h) Until the retirement of the Notes, or until none of the
Underwriters maintains a secondary market in the Notes, whichever occurs first,
the Depositor shall deliver to each of the Underwriters, through the
Representative, the annual statement of compliance and any annual independent
certified public accountants' report furnished to the Indenture Trustee pursuant
to the Sale and Servicing Agreement, as soon as such statements and reports are
furnished to the Indenture Trustee.
(i) So long as any of the Notes are outstanding, the Depositor shall
deliver to each of the Underwriters, through the Representative: (i) all
documents distributed to Noteholders and (ii) from time to time, any other
information concerning BMW Financial Services, the Depositor or the Trust as the
Underwriters may reasonably request only insofar as such information reasonably
relates to the Prospectus or the transactions contemplated by the Transaction
Documents.
(j) On or before the Closing Date, the Depositor, BFFC and BMW
Financial Services shall cause their computer records relating to the
Receivables to be marked to show the Trust's absolute ownership of the
Receivables, and from and after the Closing Date none of the Depositor, BFFC or
BMW Financial Services shall take any action inconsistent with the Trust's
ownership of such Receivables, other than as permitted by the Indenture or Sale
and Servicing Agreement.
(k) To the extent, if any, that any of the ratings assigned to the
Notes by any of the rating agencies that initially rate the Notes are
conditional upon the furnishing of documents or the taking of any other actions
by the Depositor or BMW Financial Services, as the case may be, the relevant
party shall furnish, or cause to be furnished, such documents and take any such
other actions as promptly as possible.
12
(l) As soon as practicable, but no later than 16 months after the
date hereof, the Depositor and BMW Financial Services will cause the Trust to
make generally available to the Noteholders an earnings statement covering a
period of at least 12 consecutive months beginning after the later of (i) the
effective date of the Registration Statement relating to the Notes and (ii) the
effective date of the most recent post-effective amendment to the Registration
Statement to become effective prior to the date of this Agreement and, in each
case, satisfying the provisions of Section 11(a) of the Act (including Rule 158
promulgated thereunder).
(m) From the date hereof until the Closing Date, none of the
Depositor, BMW Financial Services or any of their respective affiliates will,
without the prior written consent of the Representative, directly or indirectly,
offer, sell or contract to sell or announce the offering of, in a public or
private transaction, any other collateralized securities similar to the Notes.
SECTION 6. Payment of Expenses. The Depositor shall pay all expenses
(including legal fees and disbursements) incident to the transactions
contemplated by this Agreement, whether or not the transactions contemplated
herein are consummated or this Agreement is terminated pursuant to Section 9
hereof, including: (a) the preparation, printing and distribution of each
preliminary prospectus (including the Preliminary Prospectus), if any, each Free
Writing Prospectus listed on Schedule IV hereto or agreed upon in writing by the
Depositor, BMW Financial Services and the Representative, if any, and the
Prospectus and each amendment or supplement thereto and delivery of copies
thereof to the Underwriters, (b) the preparation of this Agreement, (c) the
preparation, issuance and delivery of the Notes to the Underwriters (or any
appointed clearing organizations), (d) the fees and disbursements of BMW
Financial Services' and the Depositor's counsel and accountants, (e) the
qualification of the Notes under state securities laws in accordance with
Section 5(d) hereof including filing fees and the fees and disbursements of
counsel in connection therewith and in connection with the preparation of any
blue sky survey (including the printing and delivery thereof to the
Underwriters), (f) any fees charged by rating agencies for the rating (or
consideration of the rating) of the Notes, (g) the fees and expenses incurred
with respect to any filing with, and review by, DTC or any similar
organizations, (h) the fees and disbursements of the Indenture Trustee and its
counsel, if any, (i) the fees and disbursements of the Owner Trustee and its
counsel, if any, and (j) the fees and expenses of Xxxxxxxx, Xxxxxx & Finger,
P.A.
SECTION 7. Time of Sale Information and Free Writing Prospectus.
(a) The following terms have the specified meanings for purposes of
this Agreement:
a. "Free Writing Prospectus" means and includes any
information relating to the Notes disseminated by the Depositor or
any Underwriter that constitutes a "free writing prospectus" within
the meaning of Rule 405 under the Act;
b. "Prepricing Information" means information relating to
the price, pricing speed, benchmark and status of the Notes and the
offering thereof.
c. "Computer Tape Information" means written information
regarding the Notes or the related receivables contained in the
electronic data file Assets Available 08-31-06 to Barclays.zip
13
furnished by the Depositor to the Representative by email on
September 6, 2006.
(b) Neither the Depositor nor BMW Financial Services will disseminate
to any potential investor any information relating to the Notes that constitutes
a "written communication" within the meaning of Rule 405 under the Act, other
than the Time of Sale Information and the Prospectus, unless the Depositor has
obtained the prior consent of the Representative.
(c) None of the Depositor, BMW Financial Services nor any Underwriter
shall disseminate or file with the Commission any information relating to the
Notes in reliance on Rule 167 or 426 under the Act, nor shall the Depositor, BMW
Financial Services or any Underwriter disseminate any Free Writing Prospectus
"in a manner reasonably designed to lead to its broad unrestricted
dissemination" within the meaning of Rule 433(d) under the Act.
(d) Each Underwriter, the Depositor and BMW Financial Services
represent that each Free Writing Prospectus distributed by it shall bear the
following legend, or a substantially similar legend that complies with Rule
433(c)(2)(i) under the Act:
The Depositor has filed a registration statement (including a
prospectus) with the SEC for the offering to which this communication
relates. Before you invest, you should read the prospectus in that
registration statement and other documents the depositor has filed
with the SEC for more complete information about the depositor, the
issuing trust, and this offering. You may get these documents for
free by visiting XXXXX on the SEC Web site at xxx.xxx.xxx.
Alternatively, the depositor, any underwriter or any dealer
participating in the offering will arrange to send you the prospectus
if you request it by calling toll free 1-888-227-2275 ext. 2663.
(e) In the event that the Depositor or BMW Financial Services becomes
aware that, as of the Time of Sale, any Time of Sale Information contains or
contained any untrue statement of material fact or omits or omitted to state a
material fact necessary in order to make the statements contained therein (when
read in conjunction with all Time of Sale Information) in light of the
circumstances under which they were made, not misleading (a "Defective
Prospectus"), such entity shall promptly notify the Underwriters of such untrue
statement or omission no later than one business day after discovery and the
Depositor shall, if requested by the Underwriters, prepare and deliver to the
Underwriters, at the expense of the Underwriters if such untrue statement or
omission relates solely to Underwriters' Information, and otherwise at the
expense of the Depositor, a Corrected Prospectus.
(f) Each Underwriter represents, warrants, covenants and agrees with
the Depositor that:
a. Other than the Preliminary Prospectus and the
Prospectus, it has not made, used, prepared, authorized, approved or
referred to and will not prepare, make, use, authorize, approve or
refer to any "written communication" (as defined in Rule 405 under
the Act) that constitutes an offer to sell or solicitation of an
14
offer to buy the Notes, including but not limited to any "ABS
informational and computational materials" as defined in Item 1101(a)
of Regulation AB under the Act; provided, however, that (i) each
Underwriter may prepare and convey one or more "written
communications" (as defined in Rule 405 under the Act) containing no
more than, and the Underwriter conveying such information represents
that such written communication contains no more than, the following:
(1) the information in any Free Writing Prospectus listed on Schedule
IV hereto or approved in writing by the Depositor, (2) information
relating to the class, size, rating, CUSIPS, coupon, yield, spread,
closing date, legal maturity, weighted average life, expected final
payment date, trade date and payment window of one or more classes of
Notes, (3) the servicer clean up call, (4) the eligibility of the
Notes to be purchased by ERISA plans, (5) Prepricing Information, (6)
a column or other entry showing the status of the subscriptions for
the Notes (both for the issuance as a whole and for each
Underwriter's retention) and/or expected pricing parameters of the
Notes and (7) Intex .cdi files (each such written communication, a
"Permitted Underwriter Communication"); and (ii) each Underwriter
will be permitted to provide confirmations of sale; provided,
however, that no Underwriter has or may distribute any information
described in subclauses (1) through (7) above that would be "issuer
information" as defined in Rule 433 under the Act other than (A)
information that has already been filed with the Commission, (B)
preliminary terms of the Notes not required to be filed with the
Commission and (C) information relating to the final terms of the
Notes required to be filed with the Commission within two days of the
later of the date such final terms have been established for all
classes of the Notes and the date of first use of such information
pursuant to Rule 433(b)(5)(ii) under the Act.
b. In disseminating information to prospective investors,
it has complied and will continue to comply fully with the Rules and
Regulations, including but not limited to Rules 164 and 433 under the
Act and the requirements thereunder for retention of Free Writing
Prospectuses, including retaining any Free Writing Prospectuses it
has used but which are not required to be filed for the required
period.
c. Prior to entering into any Contract of Sale, the
applicable Underwriter shall convey the Time of Sale Information to
the prospective investor. The Underwriter shall maintain sufficient
records to document its conveyance of the Time of Sale Information to
the potential investor prior to the formation of the related Contract
of Sale and shall maintain such records as required by the Rules and
Regulations.
d. If a Defective Prospectus has been corrected with a
Corrected Prospectus delivered to such Underwriter subsequent to the
original Time of Sale and prior to the Closing Date, it shall (A)
deliver the Corrected Prospectus to each investor with whom it
entered into a Contract of Sale and that received the Defective
Prospectus from it prior to entering into a new Contract of Sale with
such investor, (B) notify such investor in a prominent fashion that
the prior Contract of Sale with the investor, if any, has been
terminated and of the investor's rights as a result of such agreement
15
and (C) provide such investor with an opportunity to affirmatively
agree to purchase the Notes on the terms described in the Corrected
Prospectus.
(g) Each Underwriter shall deliver to the Depositor, not less than
one business day prior to the required date of filing thereof, all information
included in a Permitted Underwriter Communication relating to the final terms of
the Notes required to be filed with the Commission pursuant to Rule
433(b)(5)(ii) under the Act.
(h) The Depositor shall file with the Commission all information
required to be filed that is delivered to it pursuant to Section 7(g) not later
than two days after the later of the date such final terms have been established
for all classes of the Notes and the date of first use of such information
pursuant to Rule 433(b)(5)(ii) under the Act; provided, however, that the
Depositor shall have no liability for any such failure resulting from the
failure of any Underwriter to provide such information to the Depositor in
accordance with Section 7(g).
(i) In the event that any Underwriter shall incur any costs or suffer
any losses or damages in connection with the reformation of the Contract of Sale
with any investor that received a Defective Prospectus, the Depositor and BMW
Financial Services jointly and severally agree to reimburse such Underwriter for
such costs, losses or damages; provided, that such reimbursement obligations of
the Depositor and BMW Financial Services shall not apply to any such reformation
to the extent resulting from an untrue statement or omission in a Defective
Prospectus contained in or omitted from the Defective Prospectus in reliance
upon and in conformity with the Underwriters' Information.
SECTION 8. Conditions of the Obligations of the Underwriters. The
obligations of the Underwriters to purchase and pay for the Notes will be
subject to the accuracy of the representations and warranties made herein, to
the accuracy of the statements of officers of the Depositor, BFFC and BMW
Financial Services made pursuant hereto, to the performance by the Depositor and
BMW Financial Services of their obligations hereunder, and to the following
additional conditions precedent:
(a) On the Closing Date, each of the Transaction Documents, the Notes
and the Certificates shall have been duly authorized, executed and delivered by
the parties thereto, shall be in full force and effect and no default shall
exist thereunder, and the Owner Trustee and the Indenture Trustee shall have
received a fully executed copy thereof or, with respect to the Notes and
Certificates, a conformed copy thereof. The Transaction Documents, the Notes and
the Certificates shall be substantially in the forms heretofore provided to the
Representative.
(b) Both at or before the date hereof, and on or before the Closing
Date, the Representative shall have received letters, dated as of the date
hereof and as of the Closing Date, respectively, of KPMG LLP, independent
certified public accountants, substantially in the form of the drafts to which
the Representative has agreed previously and otherwise substantially in form and
substance reasonably satisfactory to the Representative and counsel to the
Underwriters.
16
(c) The Prospectus, the Preliminary Prospectus, each Free Writing
Prospectus listed on Schedule IV hereto or approved in writing by the Depositor
and any "issuer information" (as defined above) included in any Permitted
Underwriter Communication required to be filed with the Commission shall have
been filed with the Commission in accordance with the Rules and Regulations and
Section 7(h) hereof on or prior to the Closing Date, no stop order suspending
the effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted or, to the knowledge of
the Depositor or BMW Financial Services shall be contemplated by the Commission.
(d) The Representative shall have received an opinion of in-house
counsel to the Depositor, BFFC and BMW Financial Services, addressed to the
Representative, dated the Closing Date and satisfactory in form and substance to
the Representative and counsel to the Underwriters, to the effect that:
(i) Each of BMW Financial Services, BFFC and the Depositor
has been duly formed and is validly existing as a limited liability
company or corporation in good standing under the laws of the
jurisdiction of its formation, and has the power and authority to own
its properties and to conduct its business as presently conducted,
and to enter into and perform its obligations under this Agreement
and the Transaction Documents, and had at all relevant times, and now
has, the power and authority to acquire, own, sell and service the
Receivables and the related Collateral.
(ii) Each of this Agreement and each Transaction Document
has been duly authorized, executed and delivered by the Depositor,
BFFC and BMW Financial Services, as applicable.
(iii) Each of the Depositor, BFFC and BMW Financial
Services is duly qualified to do business and is in good standing,
and has obtained all necessary licenses, in each jurisdiction in
which failure to so qualify or obtain such licenses would have a
material adverse affect upon its business or the ownership of its
property.
(iv) Neither: (A) the transfer of the Receivables from
BFFC to BMW Financial Services pursuant to the Bill of Sale, (B) the
transfer of the Receivables from BMW Financial Services to the
Depositor pursuant to the Receivables Purchase Agreement, (C) the
transfer of the Receivables from the Depositor to the Trust pursuant
to the Sale and Servicing Agreement, (D) the assignment of the
Collateral from BFFC to BMW Financial Services, from BMW Financial
Services to the Depositor and thereafter to the Trust, (E) the
assignment of its rights under the Receivables Purchase Agreement by
the Depositor to the Trust, (F) the grant of the security interest in
the Receivables and the Collateral by the Trust to the Indenture
Trustee pursuant to the Indenture, (G) the execution and delivery of
this Agreement and the Transaction Documents by BMW Financial
Services, (H) the execution and delivery of this Agreement, the
Transaction Documents and the Notes by the Depositor, (I) the
execution and delivery of the Bill of Sale by BFFC, (J) the
consummation of any transactions contemplated in this Agreement or
the Transaction Documents, nor (K) the fulfillment of the terms of
this Agreement, the Transaction Documents or the Notes by BMW
Financial Services, BFFC or the Depositor, as the case may be, will
conflict with, or result in a breach, violation or acceleration of,
17
or constitute a default under, any term or provision of the
certificate of formation and limited liability company agreement of
BMW Financial Services or the Depositor or articles of incorporation
or by-laws of BFFC or of any indenture or other material agreement or
instrument to which either of them is a party or by which any of them
or their respective properties is bound, or result in a violation, or
contravene the terms, of any statute, order or regulation applicable
to either of them of any court, regulatory body, administrative
agency or governmental body having jurisdiction over such person.
(v) There are no actions, proceedings or suits pending or,
to the best of such counsel's knowledge after due inquiry, threatened
before any court, administrative agency or other tribunal: (A) that
might materially and adversely affect the performance by the
Depositor of its obligations under this Agreement or the Transaction
Documents, (B) that might materially and adversely affect the
performance by BMW Financial Services of its obligations under this
Agreement or the Transaction Documents or (C) that might materially
and adversely affect the performance by BFFC of its obligations under
the Transaction Documents.
(vi) Such counsel is familiar with BMW Financial Services'
standard operating procedures relating to its acquisition of a
perfected first priority security interest in the vehicles financed
by it pursuant to retail installment sale contracts in the ordinary
course of its business. Assuming that its standard procedures are
followed with respect to the perfection of security interests in the
Vehicles (and such counsel has no reason to believe that BMW
Financial Services has not followed its standard procedures in all
material respects in connection with the perfection of security
interests in the Vehicles), BMW Financial Services has acquired or
will acquire a perfected first priority security interest in the
Vehicles. Neither such security interest nor the perfection of such
security interest shall be adversely affected by the transfer of the
Receivables to the Depositor, the Trust or the pledge thereof to the
Indenture Trustee.
(vii) To such counsel's knowledge, no consent, approval,
authorization or order of any court or governmental agency or body is
required for the consummation of the transactions contemplated in
this Agreement and the Transaction Documents.
(e) The Representative shall have received an opinion of Xxxx,
Gotshal & Xxxxxx LLP, counsel to the Depositor, BFFC, BMW Financial Services and
the Trust, addressed to the Representative, dated the Closing Date and
satisfactory in form and substance to the Representative and counsel to the
Underwriters, to the effect that:
(i) Each of this Agreement and the Transaction Documents
is the legal, valid and binding obligation of BMW Financial Services,
BFFC and the Depositor, as the case may be, enforceable against them
in accordance with its terms: (A) subject to applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium or
other similar laws affecting creditors' rights and remedies
generally, and (B) subject, as to enforceability, to general
principles of equity, including principles of commercial
reasonableness, good faith and fair dealing (regardless of whether
enforcement is sought in a proceeding at law or in equity).
18
(ii) The Notes, when duly executed and delivered by the
Owner Trustee on behalf of the Trust, authenticated by the Indenture
Trustee and delivered and paid for pursuant to this Agreement, will
be entitled to the benefits of the Indenture and will be valid and
binding obligations of the Trust, enforceable in accordance with
their terms, subject to: (A) applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium or other similar
laws affecting creditors' rights and remedies generally, and (B) to
general principles of equity, including principles of commercial
reasonableness, good faith and fair dealing (regardless of whether
enforcement is sought in a proceeding at law or in equity).
(iii) The statements contained in the Prospectus, the
Preliminary Prospectus and any supplement thereto under the headings
"Summary of Terms," "The Notes" and "Payments on the Notes," insofar
as such statements constitute a summary of the Notes and the
Transaction Documents, constitute a fair summary of such documents
and the statements in the Prospectus and the Preliminary Prospectus
under the heading "Certain Legal Aspects of the Receivables," to the
extent they constitute statements of matters of law or legal
conclusions, are correct in all material respects.
(iv) Neither the Trust nor the Depositor is, or as a
result of the offering and sale of the Notes will be, required to be
registered under the Investment Company Act.
(v) The Indenture has been duly qualified under the Trust
Indenture Act.
(vi) The Trust Agreement need not be qualified under the
Trust Indenture Act.
(vii) The Receivables Purchase Agreement constitutes a
grant by BMW Financial Services to the Depositor of a valid security
interest in the Receivables and other property granted to the
Depositor pursuant thereto and the proceeds of the foregoing.
(viii) The Sale and Servicing Agreement constitutes a
grant by the Depositor to the Trust of a valid security interest in
the Receivables and other property granted to the Trust pursuant
thereto and the proceeds of the foregoing.
(ix) The Indenture is effective to create a valid security
interest in favor of the Indenture Trustee in the Trust's interest in
the Trust Estate and in the Collateral, as such term is defined in
the Indenture (including the property held in the Reserve Account)
and the proceeds of each of the foregoing, which security interest in
the Money, Instruments, Clearing Corporation Securities, Certificated
Securities (as such terms are defined in the UCC as in effect in the
State of New York) and federal book-entry securities on deposit in
the Reserve Account constitutes a perfected security interest
therein. No other security interest of any other creditor will be
equal or prior to the security interest of the Indenture Trustee.
(x) The Registration Statement became effective under the
Act on August 11, 2006 and, to the best of such counsel's knowledge,
no stop order suspending the effectiveness of the Registration
19
Statement or any part thereof or any amendment thereto has been
issued under the Act and no proceeding for that purpose has been
instituted or threatened by the Commission.
(xi) The Registration Statement relating to the Notes as
of its effective date, the Preliminary Prospectus as of its date and
the Prospectus as of the date of this Agreement, and any amendment or
supplement thereto, as of its date, complied as to form in all
material respects with the requirements of the Act and the applicable
Rules and Regulations. Such counsel need express no opinion with
respect to the financial statements, the exhibits, annexes and other
financial, statistical, accounting, numerical or portfolio data,
economic conditions or financial condition of the portfolio
information included in or incorporated by reference into the
Registration Statement relating to the Notes, the Prospectus and the
Trustee's statement of eligibility on Form T-1, or any amendment or
supplement thereto.
Such counsel shall state that they have participated in
the preparation of the Registration Statement, the Preliminary
Prospectus, the Time of Sale Information 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 Time of Sale Information and the Prospectus,
as of the applicable date, and any amendment or supplement thereto,
as of its date when it became effective, contained any untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading or that the Prospectus on its date contained
or on the Closing Date contains, any untrue statement of a material
fact or omitted or omits 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 that the
Time of Sale Information as of the Time of Sale contained any untrue
statement of a material fact or omitted or omits 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; provided that such counsel need not express any view as
to any financial, statistical or accounting information in the
Registration Statement, the Time of Sale Information or the
Prospectus or any information omitted from the Time of Sale
Information that would be permitted to be omitted from a preliminary
prospectus prepared in reliance on Rule 430B under the Act
(xii) Assuming due authorization, the Indenture, when duly
authorized, executed and delivered by the Trust and the Indenture
Trustee, will constitute a valid and binding obligation of the Trust,
enforceable against the Trust in accordance with its terms, subject
to applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws affecting creditors'
rights and remedies generally, and subject, as to enforceability, to
general principles of equity, including principles of commercial
reasonableness, good faith and fair dealing (regardless of whether
enforcement is sought in a proceeding at law or in equity) and
certain remedial provisions of the Indenture are or may be
unenforceable in whole or in part under the laws of the State of New
York, but the inclusion of such provisions does not affect the
validity of the Indenture, and the Indenture contains adequate
provisions for the practical realization of the rights and benefits
afforded thereby.
20
Such opinion may contain such assumptions, qualifications and
limitations as are customary in opinions of this type and are reasonably
acceptable to counsel to the Underwriters. In rendering such opinion, such
counsel may state that they express no opinion as to the laws of any
jurisdiction other than the federal law of the United States and the laws of the
State of New York.
(f) Xxxxxxxx Xxxx LLP, in its capacity as counsel to BMW Financial
Services, the Depositor and the Trust, shall have delivered an opinion addressed
to the Representative, dated the Closing Date and satisfactory in form and
substance to the Representative and counsel to the Underwriters, to the effect
that so long as BMW Financial Services has and continuously retains possession
in the State of Ohio of all promissory notes and tangible chattel paper
comprised in the Receivables:
(i) The Receivables are "tangible chattel paper" or
"promissory notes" as defined in the UCC as in effect in the State of
New York and the State of Ohio.
(ii) At and after the time of the transfer thereof from
the Trust to the Indenture Trustee, the security interest of the
Indenture Trustee in such promissory notes and tangible chattel paper
arising under the Indenture will constitute a perfected security
interest in such promissory notes and tangible chattel paper, subject
to no prior or equal liens which may be perfected by the filing of a
financing statement or by taking possession of such promissory notes
and/or chattel paper.
(g) Xxxx, Gotshal & Xxxxxx LLP, in its capacity as federal tax and
ERISA counsel to the Depositor and the Trust, shall have delivered an opinion
satisfactory in form and substance to the Representative and counsel to the
Underwriters, dated the Closing Date and addressed to the Representative, to the
effect that the statements in the Prospectus Supplement and the Preliminary
Prospectus under the headings "Summary of Terms--Tax Status" and "Material
Income Tax Consequences" and in the Base Prospectus under the headings "Summary
of Terms--Tax Status" and "Material Income Tax Consequences" to the extent they
constitute matters of law or legal conclusions are correct in all material
respects, and the statements in the Prospectus Supplement and the Preliminary
Prospectus under the headings "Summary of Terms--ERISA Considerations and "ERISA
Considerations" and in the Base Prospectus under the headings "Summary of
Terms--ERISA Considerations" and "ERISA Considerations" have been prepared or
reviewed by such counsel and, to the extent they constitute matters of law or
legal conclusions, provide a fair summary all material respects with respect to
such conclusions.
(h) Xxxx, Gotshal & Xxxxxx LLP, in its capacity as counsel to the
Depositor and the Trust, shall have delivered an opinion satisfactory in form
and substance to the Representative and counsel to the Underwriters, dated the
Closing Date and addressed to the Representative, with respect to (i) the
consolidation of the assets and liabilities of the Depositor with those of BMW
Financial Services under the doctrine of substantive consolidation, (ii) the
characterization as a "true sale" of the sale of the Receivables from BMW
Financial Services to the Depositor and (iii) the validity of the Notes and such
other related matters as the Underwriter shall reasonably require and the
Depositor shall have furnished or caused to be furnished to such counsel such
documents as they may reasonably request for the purpose of enabling them to
21
pass upon such matters. Such opinions shall be limited to the laws of the State
of New York and United States federal law.
(i) The Representative shall have received an opinion of Xxxxxxx,
Xxxxxxxx & Xxxx LLP, counsel to the Indenture Trustee, addressed to the
Representative, dated the Closing Date and satisfactory in form and substance to
the Representative and counsel to the Underwriters, to the effect that:
(i) The Indenture Trustee has been legally organized under
the laws of the United States and, based upon a certificate of good
standing issued by the Comptroller of the Currency, is validly
existing as a banking association in good standing under the laws of
the United States, and has the requisite entity power and authority
to execute and deliver each Transaction Document to which it is a
party and to perform its obligations thereunder.
(ii) Each of the Transaction Documents to which the
Indenture Trustee is a party (to the extent that the laws of the
State of New York are designated therein as the governing law
thereof), assuming the necessary authorization, execution and
delivery thereof by the parties thereto (other than any party as to
which such counsel opine to that effect herein) and the
enforceability thereof against the other parties thereto, is a valid
and legally binding agreement under the laws of the State of New
York, enforceable thereunder in accordance with its terms against the
Indenture Trustee.
(iii) With respect to the Indenture Trustee, the
performance of its obligations under each of the Transaction
Documents to which it is a party and the consummation of the
transactions contemplated thereby do not require any consent,
approval, authorization or order of, filing with or notice to any
United States federal or State of New York court, agency or other
governmental body under any United States federal or State of New
York statute or regulation that in such counsel's experience is
normally applicable to transactions of the type contemplated by the
Transaction Documents, except such as may be required under the
securities laws of any State of the United States or such as have
been obtained, effected or given.
(iv) The Notes have been duly authenticated and delivered
by the Indenture Trustee in accordance with the Indenture.
(v) With respect to the Indenture Trustee, the performance
of its obligations under each of the Transaction Documents to which
it is a party and the consummation of the transactions contemplated
thereby will not result in any breach or violation of its certificate
of incorporation or bylaws
(vi) With respect to the Indenture Trustee, the
performance of its obligations under each of the Agreements to which
it is a party and the consummation of the transactions contemplated
thereby will not result in any breach or violation of any United
States federal or State of New York statute or regulation that in
such counsel's experience is normally applicable to transactions of
the type contemplated by the Transaction Documents.
22
(j) The Representative shall have received an opinion of Xxxxxxxx,
Xxxxxx & Xxxxxx, P.A., counsel to the Owner Trustee, addressed to the
Representative, dated the Closing Date and satisfactory in form and substance to
the Representative and counsel to the Underwriters, to the effect that:
(i) The Owner Trustee is duly incorporated and validly
existing as a banking corporation in good standing under the laws of
the State of Delaware.
(ii) The Owner Trustee has the power and authority to
execute, deliver and perform the Trust Agreement and to consummate
the transactions contemplated thereby.
(iii) The Trust Agreement has been duly authorized,
executed and delivered by the Owner Trustee and constitutes a legal,
valid and binding obligation of the Owner Trustee, enforceable
against the Owner Trustee, in accordance with its terms.
(iv) Neither the execution, delivery and performance by
the Owner Trustee of the Trust Agreement, nor the consummation by the
Owner Trustee of the transactions contemplated thereby, nor
compliance with the terms thereof conflict with or result in a breach
of, or constitute a default under the provisions of, the Owner
Trustee's certificate of incorporation or bylaws or any law, rule or
regulation of the State of Delaware or the United States governing
the trust powers of the Owner Trustee or, to such counsel's knowledge
without independent investigation, any judgment or order applicable
to the Owner Trustee or its properties or, to such counsel's
knowledge without independent investigation, any indenture, mortgage,
contract or other agreement or instrument to which the Owner Trustee
is a party or by which it is bound.
(v) No consent, approval or other authorization of, or
registration, declaration or filing with, any court or governmental
agency or commission of the State of Delaware is required by or with
respect to the Owner Trustee for the valid execution and delivery of
the Trust Agreement, or for the validity or enforceability thereof,
other than the filing of the certificate of trust.
(k) The Representative shall have received an opinion of Xxxxxxxx,
Xxxxxx & Finger, P.A., special Delaware counsel to the Trust, addressed to the
Representative, dated the Closing Date and satisfactory in form and substance to
the Representative and counsel to the Underwriters, to the effect that:
(i) The Trust has been duly formed and is validly existing
and in good standing as a statutory trust under the Delaware
Statutory Trust Act, 12 Del. C. ss. 3801, et seq. (the "Statutory
Trust Act"), and has the power and authority under the Trust
Agreement and the Act to execute, deliver and perform its obligations
under the Transaction Documents.
(ii) The Transaction Documents and the Notes have been
duly authorized, executed and delivered by the Trust.
23
(iii) The Trust Agreement is a legal, valid and binding
obligation of the Depositor and the Owner Trustee, enforceable
against the Depositor and the Owner Trustee, in accordance with its
terms.
(iv) Neither the execution, delivery and performance by
the Trust of the Transaction Documents, nor the consummation by the
Trust of any of the transactions contemplated thereby, requires the
consent or approval of, the withholding of objection on the part of,
the giving of notice to, the filing, registration or qualification
with, or the taking of any other action in respect of, any
governmental authority or agency of the State of Delaware, other than
the filing of the certificate of trust with the Secretary of State.
(v) Neither the execution, delivery and performance by the
Trust of the Transaction Documents, nor the consummation by the Trust
of the transactions contemplated thereby, is in violation of the
Trust Agreement or of any law, rule or regulation of the State of
Delaware applicable to the Trust.
(vi) Under Section 3805(b) of the Statutory Trust Act, no
creditor of any Certificateholder shall have any right to obtain
possession of, or otherwise exercise legal or equitable remedies with
respect to, the property of the Trust except in accordance with the
terms of the Trust Agreement.
(vii) Under the Statutory Trust Act, the Trust is a
separate legal entity and, assuming that the Sale and Servicing
Agreement conveys good title to the Trust property to the Trust as a
true sale and not as a security arrangement, the Trust rather than
the holders of the Certificates will hold whatever title to the Trust
property as may be conveyed to it from time to time pursuant to the
Sale and Servicing Agreement, except to the extent that the Trust has
taken action to dispose of or otherwise transfer or encumber any part
of the Trust property.
(viii) Under Section 3805(c) of the Statutory Trust Act,
except to the extent otherwise provided in the Trust Agreement, a
holder of a Certificate (including the Depositor in its capacity as
such) has no interest in specific Trust property.
(ix) The Certificate has been duly authorized and executed
by the Trust, authenticated by the Owner Trustee and, when delivered
in accordance with the terms of the Trust Agreement, the Certificate
will be validly issued and entitled to the benefits of the Trust
Agreement.
(x) The Financing Statements are in appropriate forms for
filing in the State of Delaware.
(xi) Insofar as Article 9 of the Uniform Commercial Code
as in effect in the State of Delaware on the date hereof (the
"Delaware UCC") is applicable (without regard to conflict of laws
principles), upon the filing of the BMW Financial Services Financing
Statement with the Secretary of State of Delaware (the "Division"),
the Depositor will have a perfected security interest in BMW
Financial Services' rights in that portion of the Receivables (as
defined in the Receivables Purchase Agreement) described in the BMW
24
Financial Services Financing Statement that may be perfected by the
filing of a UCC financing statement with the Division (the "BMW
Financial Filing Collateral") and the proceeds (as defined in Section
9-102(a)(64) of the Delaware UCC) thereof. Such counsel note that the
Depositor has assigned such security interest to the Indenture
Trustee.
(xii) Insofar as Article 9 of the Delaware UCC is
applicable (without regard to conflict of laws principles), upon the
filing of the BMW Securities Financing Statement with the Division,
the Trust will have a perfected security interest in the Depositor's
rights in that portion of the Receivables (as defined in the Sale and
Servicing Agreement) described in the BMW Securities Financing
Statement that may be perfected by the filing of a UCC financing
statement with the Division (the "BMW Securities Filing Collateral")
and the proceeds (as defined in Section 9-102(a)(64) of the Delaware
UCC) thereof. Such counsel note that the Trust has assigned such
security interest to the Indenture Trustee.
(xiii) Insofar as Article 9 of the Delaware UCC is
applicable (without regard to conflict of laws principles), upon the
filing of the Trust Financing Statement with the Division, the
Indenture Trustee will have a perfected security interest in the
Trust's rights in that portion of the Receivables (as defined in the
Indenture) described in the Trust Financing Statement that may be
perfected by the filing of a UCC financing statement with the
Division (the "Trust Filing Collateral", and together with the BMW
Financial Filing Collateral and the BMW Securities Filing Collateral,
the "Filing Collateral") and the proceeds (as defined in Section
9-102(a)(64) of the Delaware UCC) thereof; and such security interest
will be prior to any other security interest in the Receivables (as
defined in the Indenture) granted by the Trust that is perfected
solely by the filing of the financing statements with the Division
under the Delaware UCC. Such counsel note that under Section
9-301(3)(c) of the Delaware UCC, the local law of the jurisdiction
where tangible "chattel paper" is located governs the effect of
perfection or nonperfection and the priority of a nonpossessory
security interest in such collateral.
(l) XxXxx Xxxxxx LLP, counsel to the Underwriters, shall have
furnished to the Representative such opinion or opinions, dated the Closing
Date, with respect to certain securities law issues and other related matters as
the Representative may reasonably request, and such counsel shall have received
such papers and information as they may reasonably request to enable them to be
based upon such matters.
(m) Xxxxxx Cook, LLP, in its capacity as special counsel to BMW
Financial Services and the Depositor, shall have delivered an opinion
satisfactory in form and substance to the Representative and counsel to the
Underwriters, dated the Closing Date and addressed to the Representative, to the
effect that, (i) with respect to the security interest of BMW Financial Services
in the Financed Vehicles created by a Receivable that originated in the State of
California (each, a "California Receivable"), no filing or other action is
necessary to perfect or continue the perfected status of such security interest
as against creditors of or transferees from the Obligor under such California
Receivable and (ii) as more fully described under the heading "Consumer
Protection Laws" in the Base Prospectus, in the opinion of such counsel, each
California Receivable is enforceable under the laws of the State of California
25
and all applicable federal laws. Such opinion may contain such assumptions,
qualifications and limitations as are customary in opinions of this type and are
reasonably acceptable to counsel to the Underwriters.
(n) The Representative shall have received copies of each opinion of
counsel delivered to any rating agency, together with a letter addressed to the
Representative, dated the Closing Date, to the effect that the Underwriters may
rely on each such opinion to the same extent as though such opinion was
addressed to each as of its date.
(o) The Representative shall have received certificates dated the
Closing Date of any two of the President, Chief Financial Officer, any Vice
President, the Controller or the Treasurer of the Depositor and BMW Financial
Services in which such officers shall state that: (i) the representations and
warranties made by such entity contained in the Transaction Documents and this
Agreement are true and correct, that such party has complied with all agreements
and satisfied all conditions on its part to be performed or satisfied under such
agreements on or before the Closing Date, (ii) since the date of this Agreement
there has not occurred any material adverse change, or any development involving
a prospective material adverse change, in or affecting the condition, financial
or otherwise, or in the earnings, business or operations of the Trust, the
Depositor or BMW Financial Services except as disclosed to the Representative in
writing and set forth in the Prospectus, the Preliminary Prospectus and the Time
of Sale Information and (iii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose have
been instituted or are contemplated by the Commission.
(p) The Representative shall have received a certificate, executed by
the Indenture Trustee, stating that any information contained in the Statement
of Eligibility and Qualification (Form T-1) filed with the Registration
Statement is true, accurate and complete.
(q) The Representative shall have received evidence satisfactory to
the Representative that, on or before the Closing Date, UCC-1 financing
statements, or in the case of the sale from BFFC to BMW Financial Services UCC-3
financing statements, have been or are being filed in all applicable
governmental offices reflecting (i) the transfer of the interest of BFFC in the
Receivables and the proceeds thereof to BMW Financial Services pursuant to the
Bill of Sale, (ii) the transfer of the interest of BMW Financial Services in the
Bill of Sale and the Receivables, and the proceeds thereof to the Depositor
pursuant to the Receivables Purchase Agreement, (iii) the transfer of the
interest of the Depositor in the Bill of Sale and the Receivables Purchase
Agreement, the Receivables, and the proceeds thereof to the Trust pursuant to
the Sale and Servicing Agreement, and (iv) the grant by the Trust to the
Indenture Trustee under the Indenture of a security interest in the interest of
the Trust in the Bill of Sale, the Receivables Purchase Agreement, the
Receivables, the Collateral and the proceeds thereof.
(r) The Class A-1 Notes shall have been rated "Prime-1" by Xxxxx'x
Investors Service, Inc. ("Moody's") and "A-1+" by Standard and Poor's, a
division of The XxXxxx-Xxxx Companies, Inc. ("Standard & Poor's"). The Class A-2
Notes, Class A-3 Notes and Class A-4 Notes shall each have been rated "Aaa" by
Moody's and "AAA" by Standard & Poor's. The Class B Notes shall have been rated
"A" by Standard & Poor's.
26
(s) The Representative shall have received, from each of BMW
Financial Services and the Depositor, a certificate executed by a secretary or
assistant secretary thereof to which shall be attached certified copies of the:
certificate of formation, (ii) limited liability company agreement, (iii)
applicable resolutions authorizing the transactions contemplated hereby and in
the Transaction Documents and (iv) designation of incumbency of each such
entity.
The Depositor shall provide or cause to be provided to the
Representative conformed copies of such opinions, certificates, letters and
documents as the Representative or counsel to the Underwriters may reasonably
request.
SECTION 9. Termination. This Agreement shall be subject to
termination in the sole discretion of the Representative by notice to the
Depositor given on or prior to the Closing Date in the event that the Depositor
shall have failed, refused or been unable to perform all obligations and satisfy
all conditions on its part to be performed or satisfied hereunder at or prior
thereto or, if at or prior to the Closing Date, (a) trading in securities
generally on the New York Stock Exchange shall have been suspended or materially
limited or minimum or maximum prices shall have been established by or on, as
the case may be, the Securities and Exchange Commission or the New York Stock
Exchange; (b) trading of any securities of the Depositor or any affiliate of the
Depositor shall have been suspended on any exchange or in any over-the-counter
market; (c) a general moratorium on commercial banking activities shall have
been declared by either federal, New Jersey State authorities or New York State
authorities; (d) there shall have occurred (i) an outbreak or escalation of
hostilities between the United States and any foreign power, (ii) an outbreak or
escalation of any other insurrection or armed conflict involving the United
States, or (iii) any other calamity or crisis or materially adverse change in
general economic, political or financial conditions having an effect on the U.S.
financial markets that, in the sole judgment of the Representative, makes it
impractical or inadvisable to proceed with the offering or the delivery of the
Notes as contemplated by the Prospectus, as amended as of the date hereof; (e)
any change, or any development involving a prospective change, in or affecting
the Receivables or particularly the business or properties of the Trust, the
Depositor or BMW Financial Services shall have occurred which, in the judgment
of the Representative, materially impairs the investment quality of the Notes or
makes it impractical or inadvisable to market the Notes; or (f) any downgrading
in the rating of any debt securities of the Depositor or any of its Affiliates,
if any, by any "nationally recognized statistical rating organization" (as
defined for purposes of Rule 436(g) under the Act), or any public announcement
that any such organization has under surveillance or review its rating of any
such debt securities (other than an announcement with positive implications of a
possible upgrading, and no implication of a possible downgrading, of such
rating) shall have occurred. Termination of this Agreement pursuant to this
Section 9 shall be without liability of any party to any other party except for
the liability of the Depositor in relation to expenses as provided in Section 6
hereof, the indemnity provided in Section 10 hereof and any liability arising
before or in relation to such termination.
SECTION 10. Indemnification and Contribution.
(a) The Depositor and BMW Financial Services will, jointly and
severally, indemnify and hold harmless each Underwriter, the directors,
officers, employees and agents of each Underwriter and each person, if any, who
controls any Underwriter within the meaning of Section 15 of the Act or Section
20 of the Exchange Act against any and all losses, claims, damages or
27
liabilities, joint or several, to which such Underwriter or such controlling
person may become subject under the Act, the Exchange Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon:
(i) any untrue statement or alleged untrue statement made
by the Depositor or BMW Financial Services in Section 2 hereof,
(ii) any untrue statement or alleged untrue statement of
any material fact contained or incorporated in the Registration
Statement, the preliminary prospectus, if any, the Time of Sale
Information or the Prospectus or any amendment or supplement thereto,
(iii) the omission or alleged omission to state in the
Registration Statement, the preliminary prospectus, if any, the Time
of Sale Information 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, or
(iv) any untrue statement or alleged untrue statement of a
material fact contained in a Permitted Underwriter Communication or
the omission or alleged omission therefrom 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, however that this subsection (iv) shall only apply to
untrue statements, alleged untrue statements, omissions and alleged
omissions that result from or are based upon errors or omissions (x)
in the Registration Statement, the Preliminary Prospectus or the
Prospectus (unless such errors or omissions are in the Underwriters'
Information) and (y) in any Computer Tape Information;
and will reimburse, as incurred, each such indemnified party for any legal or
other costs or expenses reasonably incurred by it in connection with
investigating, defending against or appearing as a third-party witness in
connection with any such loss, claim, damage, liability or action; provided,
however, that the Depositor and BMW Financial Services will not be liable in any
such case to the extent that any such loss, claim, damage or liability arises
out of or is based upon any untrue statement or alleged untrue statement or
omission or alleged omission made in the preliminary prospectus, if any, the
Time of Sale Information or the Prospectus or any amendment or supplement
thereto in reliance upon and in conformity with the Underwriters' Information;
provided, further, that the Depositor and BMW Financial Services shall not be
liable to any Underwriter or any of the directors, officers, employees and
agents of an Underwriter and each person, if any, who controls any Underwriter
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act
with respect to any loss, claim, damage or liability that results from the fact
that the Underwriter sold Notes to a person to whom there was not sent or given,
at or prior to the written confirmation of such sale, if delivery thereof was
required, a copy of the Prospectus or of the Prospectus as then amended or
supplemented, whichever is most recent, if the Depositor has previously
furnished copies thereof to such Underwriter. The indemnity provided for in this
Section 10 shall be in addition to any liability which the Depositor and BMW
Financial Services may otherwise have. The Depositor and BMW Financial Services
will not, without the prior written consent of the Representative, settle or
compromise or consent to the entry of any judgment in any pending or threatened
claim, action, suit or proceeding in respect of which indemnification may be
28
sought hereunder (whether or not the Representative or any person who controls
the Representative is a party to such claim, action, suit or proceeding), unless
such settlement, compromise or consent (i) includes an unconditional release of
all of the Underwriters and such controlling persons from all liability arising
out of such claim, action, suit or proceeding and (ii) does not include a
statement as to or admission of, fault, culpability or a failure to act by or on
behalf of any Underwriter or controlling person.
(b) Each Underwriter, severally and not jointly, will indemnify and
hold harmless each of the Depositor and BMW Financial Services, each of its
directors and officers and each person, if any, who controls the Depositor or
BMW Financial Services within the meaning of Section 15 of the Act or Section 20
of the Exchange Act against any losses, claims, damages or liabilities to which
the Depositor, BMW Financial Services or any such director, officer or
controlling person may become subject under the Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon (i) any untrue statement or alleged untrue
statement of any material fact contained in the Registration Statement (or any
amendment thereto) or the preliminary prospectus, if any, the Time of Sale
Information 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), the Time of Sale Information 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 (x) such Underwriter's Underwriters' Information or (y) any
permitted Underwriter Communication (other than Prepricing Information) of such
Underwriter that does not result from or was not based upon an error or omission
in (A) the Registration Statement, the Time of Sale Information or the
Prospectus (unless such error or omission is in the Underwriters' Information)
or (B) any Computer Tape Information, and, subject to the limitation set forth
immediately preceding this clause, will reimburse, as incurred, any legal or
other expenses reasonably incurred by the Depositor, BMW Financial Services or
any such director, officer or controlling person in connection with
investigating, defending against or appearing as a third-party witness in
connection with any such loss, claim, damage, liability or any action in respect
thereof. The remedies provided for in this Section 10 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 10, such person (for
purposes of this paragraph (c), the "indemnified party") shall, promptly after
receipt by such party of notice of the commencement of such action, notify the
person against whom such indemnity may be sought (for purposes of this paragraph
(c), the "indemnifying party"), but the failure to so notify the indemnifying
party will not relieve it from any liability which it may have to any
indemnified party (i) under paragraph (a) or (b) of this Section 10 unless and
to the extent it did not otherwise learn of such action and such failure results
in the forfeiture by the indemnifying party of substantial rights and defenses
or (ii) otherwise than under this Section 10. 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
29
party similarly notified, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party (which may be counsel to such
indemnifying party if otherwise reasonably acceptable to the indemnified party);
provided, however, that if the defendants in any such action include both the
indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be one or more legal defenses available
to it and/or other indemnified parties which are different from or additional to
those available to the indemnifying party, the indemnifying party shall not have
the right to direct the defense of such action on behalf of such indemnified
party or parties and such indemnified party or parties shall have the right to
select separate counsel to defend such action on behalf of such indemnified
party or parties. After notice from the indemnifying party to such indemnified
party of its election so to assume the defense of any such action and approval
by such indemnified party of counsel appointed to defend such action, the
indemnifying party will not be liable to such indemnified party under this
Section 10 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 10,
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 10 is unavailable or insufficient, for
any reason, to hold harmless an indemnified party in respect of any losses,
claims, damages or liabilities (or actions in respect thereof), each
indemnifying party, in order to provide for just and equitable contribution,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (or actions in respect
thereof) in such proportion as is appropriate to reflect (i) the relative
benefits received by the indemnifying party or parties on the one hand and the
indemnified party on the other from the offering of the Notes or (ii) if the
allocation provided by the foregoing clause (i) is not permitted by applicable
law, not only such relative benefits but also the relative fault of the
indemnifying party or parties on the one hand and the indemnified party on the
other in connection with the statements or omissions or alleged statements or
omissions that resulted in such losses, claims, damages or liabilities (or
actions in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Depositor and BMW
Financial Services on the one hand and the Underwriters on the other shall be
deemed to be in the same proportion as the total proceeds from the offering of
the Notes (before deducting expenses) received by the Depositor bear to the
30
total discounts and commissions received by the Underwriters (the "Spread"), in
each case as set forth in the Prospectus Supplement. The relative fault of the
parties shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Depositor, BMW Financial Services or the Underwriters, the parties' relative
intents, knowledge, access to information and opportunity to correct or prevent
such statement or omission, and any other equitable considerations appropriate
in the circumstances. The Depositor, BMW Financial Services and the Underwriters
agree that it would not be equitable if the amount of such contribution were
determined by pro rata or per capita allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of allocation
that does not take into account the equitable considerations referred to above
in this paragraph (d). Notwithstanding any other provision of this paragraph
(d), no Underwriter shall be obligated to make contributions hereunder that in
the aggregate exceed the amount by which the Spread received by it in the
initial offering of such Notes, less the aggregate amount of any damages that
such Underwriter has otherwise been required to pay in respect of the same or
any substantially similar claim, and no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute hereunder are
several in proportion to their respective principal amount of Securities they
have purchased hereunder, and not joint. For purposes of this paragraph (d),
each person, if any, who controls an Underwriter within the meaning of Section
15 of the Act or Section 20 of the Exchange Act, and each director, officer,
employee and agent of an Underwriter shall have the same rights to contribution
as such Underwriter, and each director of the Depositor and BMW Financial
Services, each officer of the Depositor and BMW Financial Services and each
person, if any, who controls the Depositor and BMW Financial Services within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, shall have
the same rights to contribution as the Depositor and BMW Financial Services.
SECTION 11. Defaults by an Underwriter. If any one or more
Underwriter(s) fail(s) to purchase and pay for any of the Notes agreed to be
purchased by such Underwriter(s) hereunder, and such failure constitutes a
default in the performance of its or their obligations under this Agreement, the
remaining Underwriter(s) shall be obligated severally to take up and pay for (in
the respective proportions that the amount of Notes set forth opposite their
names in Schedule I bears to the aggregate amount of Notes set forth opposite
the names of all the remaining Underwriter(s)) the Notes that the defaulting
Underwriter(s) agreed but failed to purchase; provided, however, that if the
aggregate amount of Notes that the defaulting Underwriter(s) agreed but failed
to purchase exceeds 10% of the aggregate principal amount of Notes, the
remaining Underwriter(s) shall have the right to purchase all, but shall not be
under any obligation to purchase any, of the Notes, and if such non-defaulting
Underwriter(s) do not purchase all the Notes, this Agreement will terminate
without liability to any non-defaulting Underwriter. In the event of a default
by any Underwriter as set forth in this paragraph, the Closing Date shall be
postponed for such period, not exceeding seven days, as the remaining
Underwriter(s) shall determine in order that the required changes in the
Prospectus or in any other documents or arrangements may be effected. Nothing
contained in this Agreement shall relieve any defaulting Underwriter(s) of any
liability to the Depositor, BMW Financial Services, their respective affiliates
31
and any non-defaulting Underwriter(s) for damages occasioned by its default
hereunder.
SECTION 12. Survival of Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements set forth in or made pursuant to this Agreement or contained in
certificates of officers submitted pursuant hereto shall remain operative and in
full force and effect, regardless of any investigation or statement as to the
results thereof, and will survive delivery of and payment for the Notes. If for
any reason the purchase of the Notes by the Underwriters is not consummated,
each of the Depositor and BMW Financial Services shall remain responsible for
the expenses to be paid or reimbursed pursuant to Section 6 hereof and the
obligations pursuant to Section 10 hereof shall remain in effect. If for any
reason the purchase of the Notes by the Underwriters is not consummated, the
Depositor and BMW Financial Services will reimburse the Underwriters severally,
upon demand, for all out-of-pocket expenses (including fees and disbursements of
counsel) incurred by any Underwriter in connection with the offering of the
Notes.
SECTION 13. Notices. In all dealings hereunder, the Representative
shall act on behalf of each of the Underwriters, and the parties hereto shall be
entitled to act and rely upon any statement, request, notice or agreement on
behalf of any Underwriter made or given by the Representative. Any notice or
notification in any form to be given under this Agreement may be delivered in
person or sent by telex, facsimile or telephone (subject in the case of a
communication by telephone to confirmation by telex or facsimile) addressed to:
in the case of the Depositor:
BMW FS Securities LLC
000 Xxxxxxxx Xxxxx Xxxx
Xxxxxxxxx Xxxx, Xxx Xxxxxx 00000
Facsimile: (000) 000-0000
Telex: (000) 000-0000
Attention: Legal Department
in the case of BMW Financial Services:
BMW Financial Services NA, LLC
0000 Xxxxxxx Xxxxxxx
Xxxxxxxx, Xxxx 00000
Facsimile: (000) 000-0000
Telex: (000) 000-0000
Attention: Xxxxxxx Xxxx
in the case of the Representative:
Barclays Capital Inc.
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxx-Xxxxxx Xxxxxxx
32
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 14. 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 10
hereof, and no other person will have any rights or obligations hereunder.
SECTION 15. Miscellaneous.
(a) Time shall be of the essence of this Agreement.
(b) The headings herein are inserted for convenience of reference
only and are not intended to be part of, or to affect, the meaning or
interpretation of this Agreement.
(c) For purposes of this Agreement, (a) "business day" means any day
on which the New York Stock Exchange is open for trading, and (b) "subsidiary"
has the meaning set forth in Rule 405 under the Act.
(d) This Agreement may be executed in any number of counterparts, all
of which, taken together, shall constitute one and the same Agreement and any
party may enter into this Agreement by executing a counterpart.
(e) This Agreement shall inure to the benefit of and shall be binding
upon the several Underwriters, the Depositor, BMW Financial Services and their
respective successors and legal representatives, and nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any other
person any legal or equitable right, remedy or claim under or in respect of this
Agreement, or any provisions herein contained, this Agreement and all conditions
and provisions hereof being intended to be and being for the sole and exclusive
benefit of such persons and for the benefit of no other person, except that (i)
the indemnities of the Depositor and BMW Financial Services contained in Section
10 hereof shall also be for the benefit of any person or persons who control any
Underwriter within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act and (ii) the indemnities of the Underwriters contained in Section
10 hereof shall also be for the benefit of the directors of the Depositor and
BMW Financial Services, the officers of the Depositor and BMW Financial Services
and any person or persons who control the Depositor or BMW Financial Services
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act.
No purchaser of Notes from any Underwriter shall be deemed a successor because
of such purchase.
(f) The respective representations, warranties, agreements,
covenants, indemnities and other statements of the Depositor and BMW Financial
Services, their respective officers and the several Underwriters set forth in
this Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement shall remain in full force and effect, regardless of (i) any
investigation made by or on behalf of the Depositor or BMW Financial Services,
33
any of their respective officers, directors, employees or agents, any
Underwriter or any controlling person referred to in Section 10 hereof and (ii)
delivery of and payment for the Notes. The respective agreements, covenants,
indemnities and other statements set forth in Sections 5 and 10 hereof shall
remain in full force and effect, regardless of any termination or cancellation
of this Agreement.
SECTION 16. 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 17. GOVERNING LAW. THE VALIDITY AND INTERPRETATION OF THIS
AGREEMENT, AND THE TERMS AND CONDITIONS SET FORTH HEREIN, SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT
GIVING EFFECT TO ANY PROVISIONS RELATING TO CONFLICTS OF LAWS (OTHER THAN
SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW).
SECTION 18. Absence of Fiduciary Relationship. The Depositor
acknowledges and agrees that the Underwriters are acting solely in the capacity
of an arm's length contractual counterparty to the Depositor and BMW Financial
Services with respect to the offering of the Notes contemplated hereby
(including in connection with determining the terms of the offering) and not as
a financial advisor or a fiduciary to, or an agent of, the Depositor, BMW
Financial Services or any other person. Additionally, neither the Representative
nor any other Underwriter is advising the Depositor, BMW Financial Services or
any other person as to any legal, tax, investment, accounting or regulatory
matters in any jurisdiction. Each of the Depositor and BMW Financial Services
shall consult with its own advisors concerning such matters and shall be
responsible for making their own independent investigation and appraisal of the
transactions contemplated hereby, and the Underwriters shall have no
responsibility or liability to the Depositor or BMW Financial Services with
respect thereto. Any review by the Underwriters of the Depositor, BMW Financial
Services, the transactions contemplated hereby or other matters relating to such
transactions will be performed solely for the benefit of the Underwriters and
shall not be on behalf of the Depositor or BMW Financial Services.
34
If the foregoing is in accordance with your understanding, please sign
and return to us five counterparts hereof, and upon the acceptance hereof by
you, on behalf of each of the Underwriters, this letter and such acceptance
hereof shall constitute a binding agreement among each of the Underwriters and
the Depositor and BMW Financial Services.
Very truly yours,
BMW FS SECURITIES LLC
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
By: /s/ Xxxxx X. Xxxxx
-------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Assistant Secretary
BMW FINANCIAL SERVICES NA, LLC
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President
By: /s/ Xxxxx X. Xxxxx
-------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Assistant Secretary
The foregoing Agreement is hereby confirmed and accepted as of the date
first above written.
BARCLAYS CAPITAL INC.
on behalf of itself and as Representative of the
several Underwriters
By: /s/ Xxx Xxx
-----------------------------------
Name: Xxx Xxx
Title: Managing Director
SCHEDULE I
Underwriter Class A-1 Notes Class A-2 Notes Class A-3 Notes Class A-4 Notes Class B Notes
----------------------------------- --------------- --------------- --------------- --------------- -------------
Barclays Capital Inc. $129,200,000 $123,200,000 $112,000,000 $69,217,000 $12,476,000
Banc of America Securities LLC $129,200,000 $123,200,000 $112,000,000 $69,217,000 $12,476,000
Credit Suisse Securities (USA) LLC $21,533,333 $20,533,333 $18,666,667 $11,536,267 -
Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx &
Xxxxx Incorporated $21,533,333 $20,533,333 $18,666,667 $11,536,267 -
Greenwich Capital Markets, Inc. $21,533,333 $20,533,333 $18,666,667 $11,536,267 -
Total $323,000,000 $308,000,000 $208,000,000 $173,044,000 $24,952,000
SCHEDULE II
Original
Principal Investor Investor
Security Balance $ Price % Price $ Price % Price $ Rate %
--------------------------- --------- ------- ------- ------- ------- ------
Class A-1 Notes $323,000,000 100.00000% $323,000,000 0.075% $242,250 5.36344%
Class A-2 Notes $308,000,000 99.99882% $307,996,366 0.100% $308,000 5.30%
Class A-3 Notes $280,000,000 99.99831% $279,995,268 0.150% $420,000 5.13%
Class A-4 Notes $173,044,000 99.97479% $173,000,376 0.200% $346,088 5.07%
Class B Notes $24,952,000 99.98115% $24,947,297 0.280% $69,866 5.19%
Total Price to Public: $1,108,939,306
Total Price to Depositor: $1,107,553,102
Underwriting Discounts and
Commissions: $1,386,204
SCHEDULE III
UCC-1
----------------
Office of
Debtor Secretary of State Secured Party
----------------------------------- ------------------ ---------------------------------
BMW Financial Services NA, LLC Delaware BMW FS Securities LLC
BMW FS Securities LLC Delaware BMW Vehicle Owner Trust 2006-A
BMW Vehicle Owner Trust 2006-A Delaware Deutsche Bank Trust Company
Americas, as Indenture Trustee
UCC-3
----------------
BMW Financial Services NA, LLC Delaware
BMW FS Funding Corp. Delaware
SCHEDULE IV
Free Writing Prospectus
None.
