EXHIBIT 10.2
SUBSEQUENT PURCHASE AGREEMENT
SUBSEQUENT PURCHASE AGREEMENT (the "Agreement") dated as of
October 17, 2001, between BMW FS Securities LLC, a Delaware limited liability
company (the "Depositor") and BMW Financial Services NA, LLC ("BMW FS").
Reference is hereby made to the Receivables Purchase
Agreement (the "Purchase Agreement") dated as of May 1, 2001, between BMW FS and
the Depositor.
WHEREAS, BMW FS wishes to sell the Contracts listed on
Schedule A hereto having, as of October 1, 2001 (the "Subsequent Cutoff Date"),
an aggregate outstanding principal balance of $98,465,590.34 (the "Subsequent
Receivables") to the Depositor, and the Depositor wishes to purchase such
Subsequent Receivables for the purchase price of $98,465,590.34;
NOW, THEREFORE, BMW FS and THE DEPOSITOR hereby agree as
follows:
Section 1.01. Definitions. Capitalized terms used herein
and not otherwise defined herein shall the meanings ascribed to them in the
Purchase Agreement.
Section 1.02. Subsequent Receivables. Schedule A attached
hereto constitutes the Subsequent Receivables to be sold to the Depositor.
Section 1.03. Transfer of Subsequent Contracts to the
Depositor. Pursuant to and upon the representations, warranties and agreements
on the part of BMW FS in the Purchase Agreement and herein and in consideration
of payment of the purchase price above stated, BMW FS does hereby sell, assign,
transfer and otherwise convey unto the Depositor, without recourse (except as
expressly provided in the Purchase Agreement), all of its right, title and
interest in and to (1) the Subsequent Receivables and all monies received
thereon on or after the Subsequent Cutoff Date; (2) the security interests in
the Financed Vehicles and any accessions thereto granted by Obligors pursuant to
the Subsequent Receivables and any of its other interest in such Financed
Vehicles; (3) any Liquidation Proceeds and any other proceeds with respect to
the Subsequent Receivables from claims on any physical damage, credit life or
disability insurance policies covering Financed Vehicles or Obligors, including
any vendor's single interest or other collateral protection insurance policy;
(4) any property that shall have secured a Subsequent Receivable and shall have
been acquired by or on behalf of BMW FS; (5) all documents and other items
contained in the Receivables Files; (6) all proceeds from any Subsequent
Receivable repurchased by a Dealer pursuant to a Dealer Agreement; and (7) the
proceeds of any and all of the foregoing. The foregoing sale does not constitute
and is not intended to result in any assumption by the Depositor of any
obligation of BMW FS to the Obligors, insurers or any other person in connection
with the Subsequent Receivables, Receivable Files, any insurance policies or any
agreement or instrument relating to any of them. It is the intention of BMW FS
and the Depositor that the transfer contemplated by this Agreement shall
constitute a sale of the Subsequent Receivables from BMW FS to the Depositor,
conveying good title thereto free and clear of any Liens, and that the
Subsequent Receivables shall not be a part of BMW FS' estate in the event of the
filing of a bankruptcy petition by or against BMW FS under any bankruptcy or
similar law.
Section 1.04. Representations of BMW FS. BMW FS hereby
represents and warrants to the Depositor and the Indenture Trustee that its
representations and warranties set forth in Section 3.02 of the Purchase
Agreement with respect to itself and the Subsequent Receivables, are true and
correct as of the date of this Agreement and that all conditions precedent set
forth in Section 2.03(b) of the Purchase Agreement have been satisfied.
Section 1.05. Severability. Any provision of this Agreement
that is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
Section 1.06. Counterparts. This Agreement may be executed
in counterparts, each of which shall be an original, but all of which together
shall constitute one and the same instrument.
Section 1.07. Headings. The headings of the various
Sections herein are for convenience of reference only and shall not define or
limit any of the terms or provisions hereof.
Section 1.08. GOVERNING LAW. THIS AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
Section 1.09. Third Party Beneficiaries. The Indenture
Trustee is an express third party beneficiary of this Agreement and shall be
entitled to enforce the provisions of this Agreement as if each were a party
hereto.
Section 1.10. Ratification of Agreement. As supplemented by
this Agreement, the Purchase Agreement is in all respects ratified and confirmed
and the Purchase Agreement as so supplemented by this Agreement shall be read,
taken and construed as one and the same instrument.
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IN WITNESS WHEREOF, the undersigned have caused this
Subsequent Purchase Agreement to be duly executed as of the date first above
written.
BMW FS SECURITIES LLC
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Treasurer
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Assistant Secretary
BMW FINANCIAL SERVICES NA, LLC
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Treasurer
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Assistant Secretary
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SCHEDULE A TO
SUBSEQUENT PURCHASE AGREEMENT
Schedule of Subsequent Receivables
[Omitted. On file with the Indenture Trustee,
the Owner Trustee and the Servicer.]
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