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
200 Park Avenue, 5th Floor
New York, NY 10166
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
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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 & Manges
LLP, 767 5th Avenue, New York, New York 10153, 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.
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(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
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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.
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<PAGE>
(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 Richards, Layton
& 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
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<PAGE>
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 EDGAR on the SEC Web site at www.sec.gov.
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
Pros
