EXHIBIT 10.1
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FORM OF
SALE AND SERVICING
AGREEMENT
among
VOLKSWAGEN AUTO LOAN ENHANCED [TRUST][LLC] 200_-_
as
Issuer
VOLKSWAGEN PUBLIC AUTO LOAN SECURITIZATION, LLC
as
Seller
VW CREDIT, INC.
as Servicer
and
----------
as Indenture Trustee
Dated as of __________, 200_
Table of Contents
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ARTICLE I. DEFINITIONS 1
SECTION 1.1. Definitions 1
SECTION 1.2. Other Interpretive Provisions 1
ARTICLE II. CONVEYANCE OF RECEIVABLES 2
SECTION 2.1. Conveyance of Receivables 2
ARTICLE III. THE RECEIVABLES 3
SECTION 3.1. Representations and Warranties as to Each Receivable 3
SECTION 3.2. Representations and Warranties as to the Receivables in the Aggregate 6
SECTION 3.3. Repurchase upon Breach 6
SECTION 3.4. Custodian of Receivable Files 7
ARTICLE IV. ADMINISTRATION AND SERVICING OF RECEIVABLES 9
SECTION 4.1. Duties of Servicer 9
SECTION 4.2. Collection of Receivable Payments 10
SECTION 4.3. Realization upon Receivables 11
SECTION 4.4. Physical Damage Insurance 11
SECTION 4.5. Maintenance of Security Interests in Financed Vehicles 12
SECTION 4.6. Covenants of Servicer 12
SECTION 4.7. Purchase by Servicer upon Breach 13
SECTION 4.8. Servicing Fee 13
SECTION 4.9. Servicer's Report 14
SECTION 4.10. Annual Statement as to Compliance; Notice of Default 14
SECTION 4.11. Annual Independent Certified Public Accountants' Report 14
SECTION 4.12. Access to Certain Documentation and Information Regarding Receivables 15
SECTION 4.13. Reports to the Commission 15
SECTION 4.14. Reports to the Rating Agencies 15
SECTION 4.15. Servicer Expenses 16
ARTICLE V. DISTRIBUTIONS; RESERVE ACCOUNT; STATEMENTS TO CERTIFICATEHOLDERS AND NOTEHOLDERS 16
SECTION 5.1. Establishment of Trust Accounts 16
SECTION 5.2. Collections 18
SECTION 5.3. [Reserved] 18
SECTION 5.4. Additional Deposits 18
SECTION 5.5. Distributions 19
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SECTION 5.6. Statements to Certificateholders and Noteholders 20
SECTION 5.7. Net Deposits 21
SECTION 5.8. Reserve Account 22
ARTICLE VI. SELLER 24
SECTION 6.1. Representations of Seller 24
SECTION 6.2. Continued Existence 25
SECTION 6.3. Liability of Seller; Indemnities 26
SECTION 6.4. Merger or Consolidation of, or Assumption of the Obligations of,
Seller 27
SECTION 6.5. Limitation on Liability of Seller and Others 27
SECTION 6.6. Seller May Own Certificates or Notes 27
SECTION 6.7. Indebtedness of Seller 28
ARTICLE VII. SERVICER 28
SECTION 7.1. Representations of Servicer 28
SECTION 7.2. Indemnities of Servicer 29
SECTION 7.3. Merger or Consolidation of, or Assumption of the Obligations of,
Servicer 30
SECTION 7.4. Limitation on Liability of Servicer and Others 31
SECTION 7.5. VW Credit Not To Resign as Servicer 31
SECTION 7.6. Existence 32
SECTION 7.7. Servicer May Own Notes or Certificates 32
ARTICLE VIII. SERVICER TERMINATION EVENTS 32
SECTION 8.1. Servicer Termination Event 32
SECTION 8.2. Appointment of Successor 33
SECTION 8.3. Payment of Servicing Fee 34
SECTION 8.4. Notification to Noteholders and Certificateholders 34
SECTION 8.5. Waiver of Past Defaults 34
ARTICLE IX. TERMINATION 35
SECTION 9.1. Optional Purchase of All Receivables; Termination Notice 35
ARTICLE X. MISCELLANEOUS PROVISIONS 35
SECTION 10.1. Amendment 35
SECTION 10.2. Protection of Title to Trust Property 37
SECTION 10.3. Notices 39
SECTION 10.4. Assignment 39
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SECTION 10.5. Limitations on Rights of Others 39
SECTION 10.6. Severability 39
SECTION 10.7. Separate Counterparts 39
SECTION 10.8. Headings 39
SECTION 10.9. Governing Law 40
SECTION 10.10. Assignment to Indenture Trustee 40
SECTION 10.11. Nonpetition Covenant 40
SECTION 10.12. Limitation of Liability of Owner Trustee and Indenture Trustee 40
SECTION 10.13. Further Assurances 40
SECTION 10.14. No Waiver; Cumulative Remedies 41
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SCHEDULES
Schedule A -- Schedule of Receivables
Schedule B -- Location of Receivables
EXHIBITS
Exhibit A -- Form of Monthly Certificateholder Statement
Exhibit B -- Form of Monthly Noteholder Statement
Exhibit C -- Form of Servicer's Report
APPENDIX
Appendix X -- Definitions
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SALE AND SERVICING AGREEMENT dated as of __________, 200_ (this
"Agreement") among VOLKSWAGEN AUTO LOAN ENHANCED [TRUST][LLC] 200_-_, a [common
law trust][statutory trust][limited liability company] ("Issuer"), VOLKSWAGEN
PUBLIC AUTO LOAN SECURITIZATION, LLC, a Delaware limited liability company (in
its capacity as seller, "Seller"), VW CREDIT, INC., a corporation organized
under the laws of the State of Delaware (in its capacity as servicer,
"Servicer"), and ___________________, a _____________________ (in its capacity
as indenture trustee, "Indenture Trustee").
WHEREAS, Issuer desires to purchase from Seller a portfolio of
receivables arising in connection with Motor Vehicle Loans purchased or
originated by the Seller Affiliates and sold to Seller under the Purchase
Agreements;
WHEREAS, Seller is willing to sell such receivables to Issuer; and
WHEREAS, Servicer is willing to service such receivables.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties hereto agree as follows:
ARTICLE I. DEFINITIONS.
SECTION 1.1. Definitions. Capitalized terms are used in this Agreement
as defined in Appendix A to this Agreement.
SECTION 1.2. Other Interpretive Provisions. For purposes of this
Agreement, unless the context otherwise requires: (a) accounting terms not
otherwise defined in this Agreement, and accounting terms partly defined in this
Agreement to the extent not defined, shall have the respective meanings given to
them under generally accepted accounting principles; (b) terms defined in
Article 9 of the UCC as in effect in the relevant jurisdiction and not otherwise
defined in this Agreement are used as defined in that Article; (c) the words
"hereof," "herein" and "hereunder" and words of similar import refer to this
Agreement as a whole and not to any particular provision of this Agreement; (d)
references to any Article, Section, Schedule, Appendix or Exhibit are references
to Articles, Sections, Schedules, Appendices and Exhibits in or to this
Agreement and references to any paragraph, subsection, clause or other
subdivision within any Section or definition refer to such paragraph,
subsection, clause or other subdivision of such Section or definition; (e) the
term "including" means "including without limitation"; (f) except as otherwise
expressly provided herein, references to any law or regulation refer to that law
or regulation as amended from time to time and include any successor law or
regulation; (g) references to any Person include that Person's successors and
assigns; and (h) headings are for purposes of reference only and shall not
otherwise affect the meaning or interpretation of any provision hereof.
ARTICLE II. CONVEYANCE OF RECEIVABLES.
SECTION 2.1. Conveyance of Receivables. In consideration of Issuer's
delivery to, or upon the order of, Seller, of Notes and Certificates in
aggregate principal amounts equal to the initial principal amounts of the Notes
and the initial Certificate Balance, respectively, Seller does hereby sell,
transfer, assign, set over and otherwise convey to Issuer, without recourse,
subject to the obligations herein (collectively, the "Trust Property"):
(a) all right, title and interest of Seller in and to the Receivables,
and all moneys received thereon after the Cutoff Date;
(b) all right, title and interest of Seller in the security interests
in the Financed Vehicles granted by Obligors pursuant to the Receivables and any
other interest of Seller in the Financed Vehicles and any other property that
shall secure the Receivables;
(c) the interest of Seller in any proceeds with respect to the
Receivables from claims on any Insurance Policies covering Financed Vehicles or
the Obligors or from claims under any lender's single interest insurance policy
naming any Seller Affiliate as an insured;
(d) rebates of premiums relating to Insurance Policies and rebates of
other items such as extended warranties financed under the Receivables, in each
case, to the extent the Servicer would, in accordance with its customary
practices, apply such amounts to the Principal Balance of the related
Receivable;
(e) the interest of Seller in any proceeds from (i) any Receivable
repurchased by a Dealer, pursuant to a Dealer Agreement, as a result of a breach
of representation or warranty in the related Dealer Agreement, (ii) a default by
an Obligor resulting in the repossession of the Financed Vehicle under the
applicable Motor Vehicle Loan or (iii) any Dealer Recourse or other rights
relating to the Receivables under Dealer Agreements;
(f) all right, title and interest in all funds on deposit from time to
time in the Certificate Distribution Account and the Trust Accounts, and in all
investments and proceeds thereof (but excluding all investment income thereon);
(g) all right, title and interest of Seller under each Purchase
Agreement, including the right of Seller to cause a Seller Affiliate to
repurchase Receivables from Seller;
(h) all right, title and interest of Seller in any instrument or
document relating to the Receivables; and
(i) the proceeds of any and all of the foregoing.
The sale, transfer, assignment, setting over and conveyance made
hereunder shall not constitute and is not intended to result in an assumption by
Issuer of any obligation of any Seller Affiliates to the Obligors, the Dealers
or any other Person in connection with the Receivables and the other assets and
properties conveyed hereunder or any agreement, document or instrument related
thereto.
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ARTICLE III. THE RECEIVABLES.
SECTION 3.1. Representations and Warranties as to Each Receivable.
Seller hereby makes the following representations and warranties as to each
Receivable conveyed by it to Issuer hereunder on which Issuer shall rely in
acquiring the Receivables. Unless otherwise indicated, such representations and
warranties shall speak as of the Closing Date, but shall survive the sale,
transfer and assignment of the Receivables to Issuer and the pledge thereof to
Indenture Trustee pursuant to the Indenture.
(a) Characteristics of Receivables. Each Receivable has been fully and
properly executed by the parties thereto and (i) is a Direct Loan made by an
Originator or has been originated by a Dealer in the ordinary course of such
Dealer's business and has been purchased by an Originator, in either case, in
the ordinary course of such Originator's business and in accordance with such
Originator's underwriting standards to finance the retail sale by a Dealer of
the related Financed Vehicle or has otherwise been acquired by a Seller
Affiliate, (ii) the Originator of which has underwriting standards that require
physical damage insurance to be maintained on the related Financed Vehicle,
(iii) is secured by a valid, subsisting, binding and enforceable first priority
security interest in favor of a Seller Affiliate in the Financed Vehicle
(subject to administrative delays and clerical errors on the part of the
applicable government agency and to any statutory or other lien arising by
operation of law after the Closing Date which is prior to such security
interest), which security interest is assignable together with such Receivable,
and has been so assigned to Seller, and subsequently assigned by Seller to
Issuer, (iv) contains customary and enforceable provisions such that the rights
and remedies of the holder thereof are adequate for realization against the
collateral of the benefits of the security, (v) provided, at origination, for
level monthly payments (provided, that the amount of the last payment may be
different), which fully amortize the Initial Principal Balance over the original
term, (vi) provides for interest at the Contract Rate specified in the Schedule
of Receivables, (vii) was originated in the United States and (viii) constitutes
"chattel paper" as defined in the UCC.
(b) Individual Characteristics. The Receivables have the following
individual characteristics as of the Cutoff Date; (i) each Receivable is secured
by a Motor Vehicle; (ii) each Receivable has a Contract Rate of at least ____%
and not more than ____%; (iii) each Receivable had a remaining term, as of the
Cutoff Date, of not less than ______ and not more than ______; (iv) each
Receivable had an Initial Principal Balance of not less than _______ and not
more than _________; (v) no Receivable was more than 30 days past due as of the
Cutoff Date; (vi) no Financed Vehicle had been repossessed as of the Cutoff
Date; (vii) no Receivable is subject to a force placed Physical Damage Insurance
Policy on the related Financed Vehicle; [(viii) each Receivable is a Simple
Interest Receivable;] and (ix) the Dealer of the Financed Vehicle has no
participation in, or other right to receive, any proceeds of the Receivable. The
Receivables were selected using selection procedures that were not intended by
any Seller Affiliate or Seller to be adverse to the Holders.
(c) Schedule of Receivables. The information with respect to each
Receivable set forth in the Schedule of Receivables, including (without
limitation) the account number of the Obligor, the Initial Principal Balance,
and the Contract Rate, was true and correct in all material respects as of the
close of business on the Cutoff Date.
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(d) Compliance with Law. Each Receivable complied at the time it was
originated or made, and will comply as of the Closing Date, in all material
respects with all requirements of applicable federal, state and local laws, and
regulations thereunder, including, to the extent applicable, usury laws, the
Federal Truth in Lending Act, the Equal Credit Opportunity Act, the Fair Credit
Billing Act, the Fair Credit Reporting Act, the Federal Trade Commission Act,
the Xxxxxxxx-Xxxx Warranty Act, the Fair Debt Collection Practices Act, Federal
Reserve Board Regulations B and Z and any other consumer credit, consumer
protection, equal opportunity and disclosure laws.
(e) Binding Obligation. Each Receivable constitutes the genuine, legal,
valid and binding payment obligation in writing of the Obligor, enforceable in
all material respects by the holder thereof in accordance with its terms,
subject to the effect of bankruptcy, insolvency, reorganization, or other
similar laws affecting the enforcement of creditors' rights generally, and each
Receivable is not subject to any right of rescission, setoff, counterclaim or
defense, including the defense of usury.
(f) Lien in Force. Neither Seller nor any Seller Affiliate has taken
any action which would have the effect of releasing the related Financed Vehicle
from the Lien granted by a Receivable in whole or in part.
(g) No Amendment or Waiver. No material provision of any Receivable has
been amended, waived, altered or modified in any respect, except such waivers as
would be permitted under this Agreement, and no amendment, waiver, alteration or
modification causes any such Receivable not to conform to the other
representations or warranties contained in this Section.
(h) No Liens. Neither Seller nor any Seller Affiliate has received
notice of any Liens or claims, including Liens for work, labor, materials or
unpaid state or federal taxes, relating to the Financed Vehicle securing a
Receivable, that are or may be prior to or equal to the Lien granted by a
Receivable.
(i) No Default. Except for payment delinquencies continuing for a
period of not more than 30 days as of the Cutoff Date, to the knowledge of
Seller, no default, breach, violation or event permitting acceleration under the
terms of any Receivable exists and no continuing condition that with notice or
lapse of time, or both, would constitute a default, breach, violation or event
permitting acceleration under the terms of any Receivable has arisen.
(j) Insurance. Each Receivable requires the Obligor to insure the
Financed Vehicle under a Physical Damage Insurance Policy, pay the premiums for
such insurance and keep such insurance in full force and effect.
(k) Good Title. It is the intention of Seller that the transfer and
assignment herein contemplated constitute a sale of the Receivables from Seller
to Issuer and that the beneficial interest in and title to the Receivables not
be part of Seller's estate in the event of the filing of a bankruptcy petition
by or against Seller under any bankruptcy law. No Receivable has been sold,
transferred, assigned, or pledged by Seller to any Person other than Issuer.
Immediately prior to the transfer and assignment herein contemplated, Seller had
good and marketable title to any Receivable free and clear of any Lien and had
full right and power to transfer and assign any
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Receivable to Issuer and immediately upon the transfer and assignment of any
Receivable to Issuer, Issuer shall have good and marketable title to the
Receivable, free and clear of any Lien; and Issuer's interest in any Receivable
resulting from the transfer has been perfected under the UCC.
(l) Obligations. Each Seller Affiliate has duly fulfilled all material
obligations on its part to be fulfilled under, or in connection with, the
Receivables.
(m) Possession. There is only one original executed Receivable, and
immediately prior to the Closing Date, the applicable Seller Affiliate will have
possession of such original executed Receivable.
(n) [No Government Obligor. The Obligor on any Receivable is not the
United States of America or any state thereof or any local government, or any
agency, department, political subdivision or instrumentality of the United
States of America or any state thereof or any local government.]
(o) Marking Records. By the Closing Date, Seller shall have caused the
portions of Seller's and each Seller Affiliate's electronic master record of
Motor Vehicle Loans relating to the Receivables to be clearly and unambiguously
marked to show that such Receivable is owned by Issuer in accordance with the
terms of this Agreement.
(p) No Assignment. As of the Closing Date, Seller shall not have taken
any action to convey any right to any Person that would result in such Person
having a right to payments received under the Insurance Policies or Dealer
Agreements, or payments due under any Receivable, that is senior to, or equal
with, that of Issuer.
(q) Lawful Assignment. Each Receivable has not been originated in, and
is not subject to the laws of, any jurisdiction under which the sale, transfer
or assignment of such Receivable hereunder or pursuant to transfers of the Notes
or Certificates are unlawful, void or voidable. Neither Seller nor any Seller
Affiliate has entered into any agreement with any Obligor that prohibits,
restricts or conditions the assignment of any portion of the Receivables.
SECTION 3.2. Representations and Warranties as to the Receivables in
the Aggregate. Seller hereby makes the following representations and warranties
as to the Receivables conveyed by it to Issuer hereunder on which Issuer shall
rely in acquiring the Receivables. Unless otherwise indicated, such
representations and warranties shall speak as of the Closing Date, but shall
survive the sale, transfer and assignment of the Receivables to Issuer and the
pledge thereof to Indenture Trustee pursuant to the Indenture.
(a) Amounts. The Original Pool Balance was $_______________.
(b) Aggregate Characteristics. The Receivables had the following
characteristics in the aggregate as of the Cutoff Date: (i) approximately ____%
of the Original Pool Balance was attributable to loans for purchases of new
Financed Vehicles, and approximately ____% of the Original Pool Balance was
attributable to loans for purchases of used Financed Vehicles; (ii)
approximately ____% of the Original Pool Balance was attributable to Receivables
the mailing addresses of the Obligors with respect to which are located in the
State of ________ and ____%
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of the Original Pool Balance was attributable to Receivables the mailing
addresses of the Obligors with respect to which are located in the State of
_____, ____% in the State of _______, ____% in the State of ______, and ____% in
the State of ______, and no other state accounts for more than ____% of the
Original Pool Balance; (iii) the weighted average Contract Rate of the
Receivables was _____%; (iv) there are _____ Receivables being conveyed by
Seller to Issuer; (v) the average Cutoff Date Principal Balance of the
Receivables was $______; and (vi) the weighted average original term and
weighted average remaining term of the Receivables were _____ months and _____
months, respectively.
SECTION 3.3. Repurchase upon Breach. Seller, Servicer, Indenture
Trustee or Issuer, as the case may be, shall inform the other parties to this
Agreement promptly, in writing, upon the discovery (or, with respect to the
Indenture Trustee or Issuer, upon actual knowledge of a Responsible Officer) of
any breach or failure to be true of the representations or warranties made by
Seller in Section 3.1, provided that the failure to give such notice shall not
affect any obligation of Seller. If the breach or failure shall not have been
cured by the last day of the Collection Period which includes the 60th day (or
if Seller elects, the 30th day) after the date on which Seller becomes aware of,
or receives written notice from Issuer, Indenture Trustee or Servicer of, such
breach or failure, and such breach or failure materially and adversely affects
the interests of Issuer and the Holders in any Receivable, Seller shall
repurchase each such affected Receivable from Issuer as of such last day of such
Collection Period at a purchase price equal to the Purchase Amount for such
Receivable as of such last day of such Collection Period. Notwithstanding the
foregoing, any such breach or failure with respect to the representations and
warranties contained in Section 3.1 will not be deemed to have such a material
and adverse effect with respect to a Receivable if the facts resulting in such
breach or failure do not affect the ability of Issuer to receive and retain
payment in full on such Receivable. In consideration of the repurchase of a
Receivable hereunder, Seller shall remit the Purchase Amount of such Receivable,
no later than the close of business on the next Deposit Date, in the manner
specified in Section 5.4. The sole remedy of Issuer, the Issuer, the Indenture
Trustee or the Holders with respect to a breach or failure to be true of the
representations or warranties made by Seller pursuant to Section 3.1 shall be to
require Seller to repurchase Receivables pursuant to this Section.
SECTION 3.4. Custodian of Receivable Files. (a) Custody. To assure
uniform quality in servicing the Receivables and to reduce administrative costs,
Issuer, upon the execution and delivery of this Agreement, revocably appoints
Custodian, as agent, and Custodian accepts such appointment, to act as agent on
behalf of Issuer to maintain custody of the following documents or instruments,
which are hereby constructively delivered to Issuer with respect to each
Receivable (collectively, a "Receivable File"):
(i) the fully executed original of the Receivable;
(ii) any documents customarily delivered to or held by Seller
or Servicer evidencing the existence of any Physical Damage Insurance
Policies;
(iii) the original credit application, fully executed by the
Obligor;
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(iv) the original certificate of title, or such other
documents as the applicable Seller Affiliate, as appropriate, keeps on
file, in accordance with its customary procedures, evidencing the
security interest of such Seller Affiliate in the Financed Vehicle;
(v) originals or true copies of all documents, instruments or
writings relating to extensions, amendments or waivers of the
Receivable; and
(vi) any and all other documents or electronic records that
Seller, any Seller Affiliate or Servicer, as the case may be, keeps on
file, in accordance with its customary procedures, relating to the
Receivable, any Insurance Policies, the Obligor or the Financed
Vehicle.
(b) Safekeeping. Servicer, in its capacity as Custodian, shall hold the
Receivable Files as agent on behalf of Issuer and maintain such accurate and
complete accounts, records and computer systems pertaining to each Receivable as
shall enable Servicer and Issuer to comply with the terms and provisions of this
Agreement applicable to them. In performing its duties as Custodian hereunder,
Custodian shall act with reasonable care, exercising the degree of skill,
attention and care that Custodian exercises with respect to receivable files
relating to other similar motor vehicle loans owned and/or serviced by Custodian
and that is consistent with industry standards. In accordance with its customary
practice with respect to its retail installment sale contracts, Custodian shall
conduct, or cause to be conducted, periodic audits of the Receivable Files held
by it under this Agreement, and of the related accounts, records, and computer
systems, and shall maintain the Receivable Files in such a manner as shall
enable Issuer to verify, if Issuer so elects, the accuracy of the record keeping
of Custodian. Custodian shall promptly report to Issuer any failure on its part
to hold the Receivable Files and maintain its accounts, records and computer
systems as herein provided, and promptly take appropriate action to remedy any
such failure. Custodian hereby acknowledges receipt of the Receivable File for
each Receivable listed on the Schedule of Receivables. Nothing herein shall be
deemed to require Issuer, Issuer or Indenture Trustee to verify the accuracy of
the record keeping of the Custodian.
(c) Maintenance of and Access to Records. Custodian shall maintain each
Receivable File at the location specified in Schedule B to this Agreement, or at
such other office of Custodian within the United States (or, in the case of any
successor Custodian, within the State in which its principal place of business
is located) as shall be specified to Issuer by 30 days' prior written notice. At
the reasonable direction of the Issuer or Indenture Trustee, Custodian shall
make available to Issuer, Indenture Trustee and their respective agents (or,
when requested in writing by Issuer or Indenture Trustee, their respective
attorneys or auditors) the Receivable Files and the related accounts, records
and computer systems maintained by Custodian at such times during the normal
business hours of Custodian for purposes of inspecting, auditing or making
copies of abstracts of the same.
(d) Release of Documents. Upon written instructions from Indenture
Trustee (or, if no Notes are then Outstanding, Issuer), Custodian shall release
any document in the Receivable Files to Indenture Trustee or Issuer or its
respective agent or designee, as the case may be, at such place or places as
Indenture Trustee or Issuer may designate, as soon thereafter as is
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practicable. Any document so released shall be handled by Indenture Trustee or
Issuer with due care and returned to Custodian for safekeeping as soon as
Indenture Trustee or Issuer or its respective agent or designee, as the case may
be, shall have no further need therefor.
(e) Title to Receivables. Custodian agrees that, in respect of any
Receivable File held by Custodian hereunder, Custodian will not at any time have
or in any way attempt to assert any interest in such Receivable File or the
related Receivable, other than solely for the purpose of collecting or enforcing
the Receivable for the benefit of Issuer and that the entire equitable interest
in such Receivable and the related Receivable File shall at all times be vested
in Issuer.
(f) Instructions; Authority to Act. Custodian shall be deemed to have
received proper instructions with respect to the Receivable Files upon its
receipt of written instructions signed by an Authorized Officer of Indenture
Trustee or Issuer, as applicable. A certified copy of excerpts of certain
resolutions of the Board of Directors of Indenture Trustee or Issuer, as
applicable, shall constitute conclusive evidence of the authority of any such
Authorized Officer to act and shall be considered in full force and effect until
receipt by Custodian of written notice to the contrary given by Indenture
Trustee or Issuer, as applicable.
(g) Custodian's Indemnification. Custodian shall indemnify and hold
harmless Issuer, Issuer and Indenture Trustee, and each of their respective
officers, directors, employees and agents and the Holders from and against any
and all liabilities, obligations, losses, compensatory damages, payments, costs
or expenses (including legal fees if any) of any kind whatsoever that may be
imposed on, incurred or asserted against Issuer, Issuer, Indenture Trustee or
the Holders as the result of any act or omission of Custodian relating to the
maintenance and custody of the Receivable Files; provided that Custodian shall
not be liable hereunder to the Issuer or Indenture Trustee to the extent that
such liabilities, obligations, losses, compensatory damages, payments, costs or
expenses result from the willful misfeasance, bad faith or negligence of Issuer
or Indenture Trustee, as the case may be. Indemnification under this subsection
(g) shall survive termination of this Agreement and the resignation or removal
of Issuer or Indenture Trustee, as the case may be. If Custodian shall have made
any indemnity payments to Issuer or Indenture Trustee pursuant to this Section
and Issuer or Indenture Trustee thereafter shall collect any of such amounts
from Persons other than Custodian, Issuer or Indenture Trustee, as the case may
be, shall, as soon as practicable following such receipt thereof, repay such
amounts to Custodian, without interest.
(h) Effective Period and Termination. Servicer's appointment as
Custodian shall become effective as of the Cutoff Date and shall continue in
full force and effect until terminated pursuant to this subsection (h). If
Servicer shall resign as Servicer in accordance with Section 7.5 or if all of
the rights and obligations of Servicer shall have been terminated under Section
8.1, the appointment of Servicer as Custodian hereunder may be terminated by the
Issuer or Indenture Trustee or by the Holders of Notes evidencing not less than
50% of the aggregate Outstanding Amount of the Notes (or, if no Notes are then
Outstanding, the Holders of Certificates representing not less than 50% of the
Certificate Balance), in each case in the same manner as Issuer or Indenture
Trustee or such Holders may terminate the rights and obligations of Servicer
under Section 8.1. The Indenture Trustee, at the direction of Holders of Notes
evidencing not less than 50% of the aggregate Outstanding Amount of the Notes,
or, if no Notes are then Outstanding, the Issuer at the direction of Holders of
Certificates evidencing not less than 50% of
8
the Certificate Balance, may terminate Servicer's appointment as Custodian
hereunder at any time with cause, or with 30 days' prior written notice without
cause. As soon as practicable after any termination of such appointment Servicer
shall deliver, or cause to be delivered, the Receivable Files to Indenture
Trustee or Issuer, as applicable, or its respective agent or designee at such
place or places as Indenture Trustee or Issuer, as applicable, may reasonably
designate. Notwithstanding any termination of Servicer as Custodian hereunder
(other than in connection with a termination resulting from the termination of
Servicer, as such, pursuant to Section 8.1), from and after the date of such
termination, and for so long as Servicer is acting as such pursuant to this
Agreement, Indenture Trustee shall provide, or cause the successor Custodian to
provide, access to the Receivable Files to Servicer, at such times as Servicer
shall reasonably request, for the purpose of carrying out its duties and
responsibilities with respect to the servicing of the Receivables hereunder.
(i) Delegation. Custodian may, at any time without notice or consent,
delegate any or all of its duties under the Basic Documents to any Seller
Affiliate; provided that no such delegation shall relieve Custodian of its
responsibility with respect to such duties and Custodian shall remain obligated
and liable to Issuer and the Holders for its duties hereunder as if Custodian
alone were performing such duties.
ARTICLE IV. ADMINISTRATION AND SERVICING OF RECEIVABLES.
SECTION 4.1. Duties of Servicer. (a) Servicer is hereby authorized to
act as agent for Issuer and in such capacity shall manage, service, administer
and make collections on the Receivables (other than Purchased Receivables), and
perform the other actions required by Servicer under this Agreement, with
reasonable care. Without limiting the standard set forth in the preceding
sentence, Servicer shall use a degree of skill, attention and care that is not
less than Servicer exercises with respect to comparable Motor Vehicle Loans that
it services for itself or others and that is consistent with prudent industry
standards. Servicer's duties shall include the collection and posting of all
payments, responding to inquiries by Obligors on the Receivables, or by federal,
state or local governmental authorities, investigating delinquencies, sending
payment coupons or monthly invoices to Obligors, reporting required tax
information to Obligors, accounting for Collections, monitoring the status of
Physical Damage Insurance Policies with respect to the Financed Vehicles as
provided in Section 4.4(a), furnishing monthly and annual statements to Issuer
and Indenture Trustee with respect to distributions, providing collection and
repossession services in the event of Obligor default and performing the other
duties specified herein.
In accordance with its customary servicing procedures, Servicer shall
also administer and enforce all rights and responsibilities of the holder of the
Receivables provided for in the Physical Damage Insurance Policies as provided
in Section 4.4 and the Dealer Agreements. Without limiting the generality of the
foregoing, Servicer is hereby authorized and empowered by Issuer to execute and
deliver, on behalf of itself, Indenture Trustee, Issuer, Owner Trustee and the
Holders, any and all instruments of satisfaction or cancellation, or of partial
or full release or discharge, and all other comparable instruments, with respect
to the Receivables or to the Financed Vehicles, all in accordance with this
Agreement; provided that notwithstanding the foregoing, Servicer shall not,
except pursuant to an order from a court of competent jurisdiction, release an
Obligor from payment of any unpaid amount under any Receivable or waive the
right
9
to collect the unpaid balance of any Receivable from the Obligor, except in
connection with a de minimis deficiency which Servicer would not attempt to
collect in accordance with its customary procedures. If Servicer shall commence
a legal proceeding to enforce a Receivable, Issuer shall thereupon be deemed to
have automatically assigned such Receivable to Servicer, which assignment shall
be solely for purposes of collection.
(b) Servicer may, at any time without notice (except that Servicer
shall give written notice to each Rating Agency of any delegation outside the
ordinary course of business of the substantial portion of its servicing
business) or consent, delegate (i) any or all duties under this Agreement to any
Person more than 50% of the voting securities of which are owned, directly or
indirectly, by VW Credit, so long as VW Credit acts as Servicer, or (ii)
specific duties to sub-contractors who are in the business of performing such
duties; provided that no such delegation shall relieve Servicer of its
responsibility with respect to such duties and Servicer shall remain obligated
and liable to Issuer and the Holders for servicing and administering the
Receivables in accordance with this Agreement as if Servicer alone were
performing such duties.
SECTION 4.2. Collection of Receivable Payments. (a) Servicer shall make
reasonable efforts to collect all payments called for under the terms and
provisions of the Receivables as and when the same shall become due, and
otherwise act with respect to the Receivables, the Physical Damage Insurance
Policies, the Dealer Agreements and related property in such manner as will, in
the reasonable judgment of Servicer, maximize the amount to be received by
Issuer with respect thereto, in accordance with the standard of care required by
Section 4.1. Servicer shall be entitled to amend or modify any Receivable in
accordance with its customary procedures if Servicer believes in good faith that
such amendment or modification is in Issuer's best interests; provided that
Servicer may not, unless ordered by a court of competent jurisdiction or
otherwise required by applicable law, (i) extend a Receivable beyond the Final
Scheduled Maturity Date or (ii) reduce the Principal Balance or Contract Rate of
any Receivable. If Servicer fails to comply with the provisions of the preceding
sentence, Servicer shall be required to purchase the Receivable or Receivables
affected thereby, for the Purchase Amount, in the manner specified in Section
4.7 as of the last day of the Collection Period in which such failure occurs.
Servicer may, in its discretion (in accordance with its customary standards,
policies and procedures), waive any prepayment charge, late payment charge,
extension fee or any other fee that may be collected in the ordinary course of
servicing a Receivable.
(b) If in the course of collecting payments under the Receivables,
Servicer determines to set off any obligation of Servicer to an Obligor against
an amount payable by the Obligor with respect to such Receivable, Servicer shall
deposit the amount so set off in the Collection Account, no later than the close
of business on the Deposit Date for the Collection Period in which the set-off
occurs. All references herein to payments or Liquidation Proceeds collected by
Servicer shall include amounts set-off by Servicer.
SECTION 4.3. Realization upon Receivables. On behalf of Issuer,
Servicer shall charge off a Receivable in accordance with its customary
standards (and, in no event later than ____ days after a Receivable shall have
become delinquent) and shall use reasonable efforts to repossess and liquidate
the Financed Vehicle securing any Defaulted Receivable as soon as feasible after
such Receivable becomes a Defaulted Receivable, in accordance with the standard
of care required by Section 4.1. In taking such action, Servicer shall follow
such customary and
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usual practices and procedures as it shall deem necessary or advisable in its
servicing of Motor Vehicle Loans, and as are otherwise consistent with the
standard of care required under Section 4.1, which shall include exercising any
rights under the Dealer Agreements and selling the Financed Vehicle at public or
private sale. Servicer shall be entitled to recover all reasonable expenses
incurred by it in the course of repossessing and liquidating a Financed Vehicle
into cash proceeds or pursuing any deficiency claim against the related Obligor,
but only out of the cash proceeds of such Financed Vehicle or any deficiency
obtained from the Obligor. The foregoing shall be subject to the provision that,
in any case in which a Financed Vehicle shall have suffered damage, Servicer
shall not expend funds in connection with the repair or the repossession of such
Financed Vehicle unless it shall determine in its discretion that such repair
and/or repossession will increase the Liquidation Proceeds of the related
Receivable by an amount equal to or greater than the amount of such expenses.
If Servicer elects to commence a legal proceeding to enforce a Dealer
Agreement, the act of commencement shall be deemed to be an automatic assignment
from Issuer to Servicer of the rights under such Dealer Agreement. If, however,
in any enforcement suit or legal proceeding, it is held that Servicer may not
enforce a Dealer Agreement on the grounds that it is not a real party in
interest or a Person entitled to enforce the Dealer Agreement, Owner Trustee, on
behalf of Issuer, at Servicer's expense, or Seller, at Servicer's expense, shall
take such steps as Servicer deems necessary to enforce the Dealer Agreement,
including bringing suit in Issuer's name or the name of Owner Trustee or
Indenture Trustee.
SECTION 4.4. Physical Damage Insurance. (a) The Receivables require
that each Financed Vehicle be insured under a Physical Damage Insurance Policy.
Servicer shall monitor or cause to be monitored, the status of such physical
damage insurance coverage to the extent consistent with its customary servicing
procedures. If Servicer shall determine that an Obligor has failed to obtain or
maintain a Physical Damage Insurance Policy covering the related Financed
Vehicle, Servicer shall use reasonable efforts in accordance with its customary
servicing procedures to enforce the rights of the holder of the Receivable under
the Receivable to require the Obligor to obtain such physical damage insurance,
provided that Servicer shall not be required to take such actions if there is in
place a lender's single interest policy with respect to the related Financed
Vehicle that complies with Servicer's customary requirements. It is understood
that Servicer will not "force-place" any Physical Damage Insurance Policy on any
Financed Vehicle.
(b) Servicer may xxx to enforce or collect upon the Physical Damage
Insurance Policies, in its own name, if possible, or as agent for Issuer. If
Servicer elects to commence a legal proceeding to enforce a Physical Damage
Insurance Policy, the act of commencement shall be deemed to be an automatic
assignment of the rights of Issuer under such Physical Damage Insurance Policy
to Servicer for purposes of collection only. If, however, in any enforcement
suit or legal proceeding it is held that Servicer may not enforce a Physical
Damage Insurance Policy on the grounds that it is not a real party in interest
or a holder entitled to enforce the Physical Damage Insurance Policy, Owner
Trustee, on behalf of Issuer, at Servicer's expense, or Seller, at Servicer's
expense, shall take such steps as Servicer deems necessary to enforce such
Physical Damage Insurance Policy, including bringing suit in Issuer's name or
the name of Owner Trustee or Indenture Trustee. Servicer shall make all claims
and enforce its rights under any lender's
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single interest insurance policy (to the extent such claims or rights relate to
Receivables) for the benefit of the Issuer and shall treat as Collections all
related proceeds of such policies.
SECTION 4.5. Maintenance of Security Interests in Financed Vehicles.
Servicer, in accordance with the standard of care required under Section 4.1,
shall take such reasonable steps as are necessary to maintain perfection of the
security interest created by each Receivable in the related Financed Vehicle for
the benefit of Issuer and the Indenture Trustee. Issuer hereby authorizes
Servicer, and Servicer hereby agrees, to take such reasonable steps as are
necessary to re-perfect such security interest on behalf of Issuer in the event
Servicer receives notice of the relocation of a Financed Vehicle. If there has
been a Servicer Termination Event, Seller and Servicer, at their expense, shall
promptly and duly execute and deliver such documents and instruments, and take
such other reasonable actions as may be necessary, as evidenced by an Opinion of
Counsel delivered to Issuer, Owner Trustee and Indenture Trustee to perfect
Issuer's and Indenture Trustee's interest in the Trust Property against all
other Persons, including the delivery of the Receivables and the Receivable
Files to Indenture Trustee (or Owner Trustee if no Notes are then Outstanding)
its agent or designee, the endorsement and delivery of the Physical Damage
Insurance Policies or the notification of the insurers thereunder, the execution
of transfer instruments, and the endorsement to Indenture Trustee (or Owner
Trustee if no Notes are then Outstanding) and the delivery of the certificates
of title to the Financed Vehicles to the appropriate department or departments
of motor vehicles (or other appropriate governmental agency).
SECTION 4.6. Covenants of Servicer. Servicer makes the following
covenants on which Issuer relies in acquiring the Receivables:
(a) Security Interest to Remain in Force. Servicer shall not release
any Financed Vehicle from the security interest granted by the related
Receivable in whole or in part, except upon payment in full of the Receivable or
as otherwise contemplated herein.
(b) No Impairment. Servicer shall not impair in any material respect
the rights of the Trust or the Holders in the Receivables, the Dealer Agreements
or the Physical Damage Insurance Policies or, subject to clause (c), otherwise
amend or alter the terms thereof if, as a result of such amendment or
alteration, the interests of Issuer and the Holders hereunder would be
materially adversely affected.
(c) Amendments. Servicer shall not amend or otherwise modify any
Receivable (including the grant of any extension thereunder), except in
accordance with Section 4.2.
SECTION 4.7. Purchase by Servicer upon Breach. Seller, Servicer,
Indenture Trustee or Issuer, as the case may be, shall inform the other parties
promptly, in writing, upon the discovery (or, in the case of the Indenture
Trustee or Issuer, upon actual knowledge of a Responsible Officer) of any breach
by Servicer of its covenants under Section 4.5 or 4.6; provided that the failure
to give such notice shall not affect any obligation of Servicer. Unless the
breach shall have been cured by the last day of the Collection Period which
includes the 60th day (or the 30th day, if Servicer so elects) after the date on
which Servicer becomes aware of, or receives written notice of, such breach, and
such breach materially and adversely affects the interests of Issuer and the
Holders in any Receivable, Servicer shall purchase such Receivable from Issuer
as of the
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last day of the Collection Period at a purchase price equal to the Purchase
Amount for such Receivable as of the last day of such Collection Period;
provided that in the case of a breach of the covenant contained in Section
4.6(c), Servicer shall be obligated to purchase the affected Receivable or
Receivables on the Deposit Date immediately succeeding the Collection Period
during which Servicer becomes aware of, or receives written notice of, such
breach. In consideration of the purchase of a Receivable hereunder, Servicer
shall remit the Purchase Amount of such Receivable in the manner specified in
Section 5.4. The sole remedy of Issuer, Owner Trustee, Indenture Trustee or the
Holders against Servicer with respect to a breach pursuant to Section 4.5 or 4.6
shall be to require Servicer to repurchase Receivables pursuant to this Section.
SECTION 4.8. Servicing Fee. The servicing fee for (a) the __________,
200_ Distribution Date shall equal _______ and (b) for each Distribution Date
thereafter shall equal the product of (i) one-twelfth, (ii) the Servicing Fee
Rate and (iii) the Pool Balance as of the opening of business on the first day
of the related Collection Period (the "Servicing Fee"). Servicer shall also be
entitled to retain any late fees, extension fees, prepayment charges (including,
in the case of any Rule of 78's Receivable or Sum of Periodic Balances
Receivable that is prepaid in full, amounts received in excess of the
outstanding Principal Balance of such Receivable and accrued interest thereon
calculated as if such Receivable were an Actuarial Receivable) and certain
non-sufficient funds charges and other administrative fees or similar charges
allowed by applicable law with respect to Receivables collected (from whatever
source) on the Receivables and shall be paid any interest earned on deposits in
the Trust Accounts and the Certificate Distribution Account (the "Supplemental
Servicing Fee"). It is understood and agreed that Available Interest or
Available Principal shall not include any amounts retained by Servicer which
constitute Supplemental Servicing Fees. The Servicing Fee in respect of a
Collection Period (together with any portion of the Servicing Fee that remains
unpaid from prior Distribution Dates), if the Rating Agency Condition is
satisfied, may be paid at the beginning of such Collection Period out of
Collections for such Collection Period. As provided in Section 5.5(c), as
additional compensation, Servicer shall be entitled to receive on each
Distribution Date, any Additional Servicing for such Distribution Date.
SECTION 4.9. Servicer's Report. (a) On each Determination Date,
Servicer shall deliver to Issuer, Indenture Trustee, each Paying Agent and
Seller, with a copy to the Rating Agencies, a Servicer's Report substantially in
the form of Exhibit A, containing all information necessary to make the
transfers and distributions pursuant to Sections 5.4, 5.5 and 5.8 for the
Collection Period preceding the date of such Servicer's Report together with all
information necessary for the Owner Trustee to send statements to
Certificateholders pursuant to Section 5.6 and Indenture Trustee to send copies
of statements received by the Indenture Trustee to Noteholders pursuant to the
Indenture and Section 5.6 of this Agreement. Receivables to be purchased by
Servicer or to be repurchased by Seller shall be identified by Servicer by
account number with respect to such Receivable (as specified in the Schedule of
Receivables).
(b) Servicer shall provide Indenture Trustee with a database file for
the Receivables at or prior to the Closing Date (but with information as of the
close of business on the Cutoff Date).
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SECTION 4.10. Annual Statement as to Compliance; Notice of Default. (a)
Servicer shall deliver to Issuer, Indenture Trustee and each Rating Agency, on
or before _________ of each year beginning on ________, 200_, an Officer's
Certificate, dated as of ___________ of the preceding year, stating that (i) a
review of the activities of Servicer during the preceding 12-month period (or,
in the case of the first such report, during the period from the Closing Date to
____________, 200_) and of its performance under this Agreement has been made
under such officer's supervision and (ii) to the best of such officer's
knowledge, based on such review, Servicer has fulfilled all its obligations in
all material respects under this Agreement throughout such year or, if there
exists any uncured default in the fulfillment of any such obligation, specifying
each such default known to such officer and the nature and status thereof. A
copy of such certificate and the report referred to in Section 4.11 may be
obtained by any Certificateholder by a request in writing to Issuer addressed to
the Corporate Trust Office or by any Noteholder by a request in writing to
Indenture Trustee addressed to the Corporate Trust Office. Upon the written
request of Issuer, Indenture Trustee will promptly furnish Issuer a list of
Noteholders as of the date specified by Issuer.
(b) Servicer shall deliver to Issuer, Indenture Trustee and the Rating
Agencies, promptly after having obtained knowledge thereof, but in no event
later than five (5) Business Days thereafter, written notice in an Officer's
Certificate of any event which constitutes, or with the giving of notice or
lapse of time, or both, would become a Servicer Termination Event under Section
8.1.
SECTION 4.11. Annual Independent Certified Public Accountants' Report.
The Servicer shall cause a firm of independent certified public accountants (who
may also render other services to the Servicer or Seller) to deliver to the
Seller, Issuer, Indenture Trustee and each Rating Agency on or before April 30
of each year beginning on ___________________, a report to the effect that such
firm has examined the Servicer's assertion that it has complied with the minimum
servicing standards set forth in the Mortgage Banker's Association of America's
Uniform Single Attestation Program for Mortgage Bankers ("USAP") for the twelve
months ended December 31 of the preceding year (or, in the case of the first
such certificate, from the Closing Date until December 31, 200_), and that such
examination (1) included tests relating to the servicing or administration of
the Receivables in accordance with the requirements of the USAP, to the extent
the procedures in such program apply to the servicing or administration of the
Receivables and (2) except as described in the report, disclosed no exceptions
or errors in the records relating to the servicing or administration of the
Receivables that, in the firm's opinion, paragraph six of such program requires
such firm to report.
In the event such firm requires the Indenture Trustee or Issuer to
agree to the procedures performed by such firm, Servicer shall direct the
Indenture Trustee or Issuer, as the case may be, in writing to so agree; it
being understood and agreed that the Indenture Trustee or Issuer, as the case
may be, will deliver such letter of agreement in conclusive reliance upon the
direction of Servicer, and the Indenture Trustee or Issuer, as the case may be,
need not make any independent inquiry or investigation as to, and shall have no
obligation or liability in respect of, the sufficiency, validity or correctness
of such procedures.
Such report will also indicate that the firm is independent of Servicer
within the meaning of the Code of Professional Ethics of the American Institute
of Certified Public Accountants.
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SECTION 4.12. Access to Certain Documentation and Information Regarding
Receivables. Servicer shall provide to the Certificateholders, Noteholders, Bank
Regulatory Authorities, and the supervisory agents and examiners of Bank
Regulatory Authorities access to the Receivable Files in such cases where the
Certificateholders, Noteholders or Bank Regulatory Authorities shall be required
by applicable statutes or regulations to review such documentation as
demonstrated by evidence satisfactory to Servicer in its reasonable judgment.
Access shall be afforded without charge, but only upon reasonable request and
during the normal business hours at the respective offices of Servicer. Nothing
in this Section shall affect the obligation of Servicer to observe any
applicable law prohibiting disclosure of information regarding the Obligors and
the failure of Servicer to provide access to information as a result of such
obligation shall not constitute a breach of this Section. Any Holder, by its
acceptance of a Certificate or Note, as applicable, shall be deemed to have
agreed to keep any information obtained by it pursuant to this Section
confidential and not to use such information for any other purpose, except as
required by applicable law.
SECTION 4.13. Reports to the Commission. Servicer shall, on behalf of
the Issuer, cause to be filed with the Commission any periodic reports required
to be filed under the provisions of the Exchange Act, and the rules and
regulations of the Commission thereunder. Seller shall, at its expense,
cooperate in any reasonable request made by Servicer in connection with such
filings.
SECTION 4.14. Reports to the Rating Agencies. Servicer shall deliver to
each Rating Agency a copy of all reports or notices furnished or delivered
pursuant to this Article and a copy of any amendments, supplements or
modifications to this Agreement and any other information reasonably requested
by such Rating Agency to monitor this transaction.
SECTION 4.15. Servicer Expenses. Servicer shall be required to pay all
expenses incurred by it in connection with its activities hereunder, including
fees and disbursements of the Owner Trustee, Indenture Trustee, independent
accountants, taxes imposed on Servicer and expenses incurred in connection with
distributions and reports to Certificateholders and Noteholders.
ARTICLE V. DISTRIBUTIONS; RESERVE ACCOUNT; STATEMENTS TO CERTIFICATEHOLDERS AND
NOTEHOLDERS.
SECTION 5.1. Establishment of Trust Accounts. (a) Servicer shall cause
to be established:
(i) For the benefit of the Noteholders and the
Certificateholders, in the name of Indenture Trustee, an Eligible
Deposit Account (the "Collection Account"), bearing a designation
clearly indicating that the funds deposited therein are held for the
benefit of the Noteholders and the Certificateholders.
(ii) For the benefit of the Noteholders, in the name of
Indenture Trustee, an Eligible Deposit Account (the "Note Distribution
Account"), bearing a designation clearly indicating that the funds
deposited therein are held for the benefit of the Noteholders.
15
(iii) For the benefit of the Noteholders and the
Certificateholders, in the name of Indenture Trustee, an Eligible
Deposit Account (the "Payahead Account"), bearing a designation clearly
indicating that the funds deposited therein are held for the benefit of
the Noteholders and the Certificateholders.
(b) Funds on deposit in the Collection Account, the Note Distribution
Account, the Payahead Account and the Reserve Account (collectively the "Trust
Accounts") and the Certificate Distribution Account shall be invested by
Indenture Trustee with respect to the Trust Accounts (or any custodian with
respect to funds on deposit in any such account) in Eligible Investments
selected in writing by Servicer (pursuant to standing instructions or
otherwise); provided that it is understood and agreed that neither Servicer,
Indenture Trustee nor Owner Trustee shall be liable for any loss arising from
such investment in Eligible Investments. All such Eligible Investments shall be
held by or on behalf of Indenture Trustee for the benefit of the Noteholders and
the Certificateholders; provided that on each Distribution Date all interest and
other investment income (net of losses and investment expenses) on funds on
deposit in the Trust Accounts shall be distributed to Seller and shall not be
available to pay the distributions provided for in Section 5.5 and shall not
otherwise be subject to any claims or rights of Holders. Other than as permitted
by the Rating Agencies, funds on deposit in the Trust Accounts shall be invested
in Eligible Investments that will mature so that such funds will be available at
the close of business on the Deposit Date preceding the next Distribution Date.
No Eligible Investment shall be sold or otherwise disposed of prior to its
scheduled maturity unless a default occurs with respect to such Eligible
Investment and Servicer directs Indenture Trustee in writing to dispose of such
Eligible Investment. Funds deposited in a Trust Account on a Deposit Date which
immediately precedes a Distribution Date upon the maturity of any Eligible
Investments are not required to be (but are permitted to be) invested overnight.
(c) Indenture Trustee shall possess all right, title and interest in
all funds on deposit from time to time in the Trust Accounts and in all proceeds
thereof (excluding investment income thereon) and all such funds, investments
and proceeds shall be part of the Owner Trust Estate. Except as otherwise
provided herein, the Trust Accounts shall be under the sole dominion and control
of Indenture Trustee for the benefit of the Noteholders and the
Certificateholders; provided, however, the Indenture Trustee shall not be
charged with any obligation for the benefit of the Certificateholders except as
provided by the terms of this Agreement. If, at any time, any of the Trust
Accounts or the Certificate Distribution Account ceases to be an Eligible
Deposit Account, Indenture Trustee (or Servicer on its behalf) or Issuer, as
applicable, shall within 10 Business Days (or such longer period as to which
each Rating Agency may consent) establish a new Trust Account or Certificate
Distribution Account, as applicable, as an Eligible Deposit Account and shall
transfer any cash and/or any investments to such new Trust Account or new
Certificate Distribution Account, as applicable. In connection with the
foregoing, Servicer agrees that, in the event that any of the Trust Accounts are
not accounts with Indenture Trustee, Servicer shall notify Indenture Trustee in
writing promptly upon any of such Trust Accounts ceasing to be an Eligible
Deposit Account.
(d) With respect to the Trust Account Property, each of Indenture
Trustee agrees, by its respective acceptance hereof, that:
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(i) any Trust Account Property that is held in deposit
accounts shall be held solely in the Eligible Deposit Accounts and,
except as otherwise provided herein, each such Eligible Deposit Account
shall be subject to the exclusive custody and control of Indenture
Trustee with respect to the Trust Accounts, and, except as otherwise
provided in the Basic Documents, Indenture Trustee shall have sole
signature authority with respect thereto;
(ii) any Trust Account Property that constitutes Physical
Property shall be delivered to Indenture Trustee, in accordance with
paragraph (a) of the definition of "Delivery" and shall be held,
pending maturity or disposition, solely by Indenture Trustee, or a
financial intermediary (as such term is defined in Section 8-313(4) of
the UCC) acting solely for Indenture Trustee;
(iii) any Trust Account Property that is a book-entry security
held through the Federal Reserve System pursuant to Federal book-entry
regulations shall be delivered in accordance with paragraph (b) of the
definition of "Delivery" and shall be maintained by Indenture Trustee
pending maturity or disposition, through continued book-entry
registration of such Trust Account Property as described in such
paragraph; and
(iv) any Trust Account Property that is an "uncertificated
security" under Article 8 of the UCC and that is not governed by clause
(v) above shall be delivered to Indenture Trustee in
accordance with paragraph (c) of the definition of "Delivery" and shall
be maintained by Indenture Trustee pending maturity or disposition,
through continued registration of Indenture Trustee's (or its
nominee's) ownership of such security.
Effective upon Delivery of any Trust Account Property, Indenture Trustee shall
be deemed to have represented that it has purchased such Trust Account Property
for value, in good faith and without notice of any adverse claim thereto.
SECTION 5.2. Collections. (a) Servicer shall remit within two Business
Days of receipt thereof to the Collection Account all payments by or on behalf
of the Obligors with respect to the Receivables (other than any amounts
constituting Supplemental Servicing Fees) and all Liquidation Proceeds, both as
collected during the Collection Period. Notwithstanding the foregoing, if VW
Credit is the Servicer and (i) shall have the Required Rating or (ii) Indenture
Trustee otherwise shall have received written notice from each of the Rating
Agencies that the then outstanding rating on the Notes or the Certificates would
not be lowered or withdrawn as a result, Servicer may deposit all amounts
referred to above for any Collection Period into the Collection Account not
later than the close of business on the Deposit Date with respect to such
Collection Period; provided that (i) if a Servicer Termination Event has
occurred and is continuing, (ii) Servicer has been terminated as such pursuant
to Section 8.1 or (iii) Servicer ceases to have the Required Rating, Servicer
shall deposit such amounts (including any amounts then being held by Servicer)
into the Collection Account as provided in the preceding sentence. For purposes
of this Article V the phrase "payments by or on behalf of Obligors" shall mean
payments made with respect to the Receivables by Persons other than Servicer,
Seller or any Seller Affiliate.
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(b) With respect to each Receivable (other than a Purchased Receivable
or a Precomputed Receivable), collections and payments by or on behalf of the
Obligor (other than any amounts constituting Supplemental Servicing Fees) for
each Collection Period shall be applied to interest and principal in accordance
with the Simple Interest Method, as applied by Servicer. Any excess shall be
applied to prepay the Receivable. All Liquidation Proceeds shall be treated as
Interest Collections.
(c) With respect to each Precomputed Receivable, collections and
payments by or on behalf of an Obligor (other than any amounts constituting
Supplemental Servicing Fees) for each Collection Period shall be applied to the
scheduled payments due on such Precomputed Receivable for such Collection
Period. To the extent such collections and payments on a Precomputed Receivable
during a Collection Period exceed the scheduled payment on such Precomputed
Receivable and are insufficient to prepay the Precomputed Receivable in full,
collections shall be treated as Payaheads until such later Collection Period as
such Payaheads may be transferred to the Collection Account and applied either
to the scheduled payments due or to prepay the Precomputed Receivable in full in
accordance with Section 5.5.
SECTION 5.3. [Reserved].
SECTION 5.4. Additional Deposits. Servicer and Seller shall deposit or
cause to be deposited in the Collection Account the aggregate Purchase Amounts
with respect to Purchased Receivables and Seller or Servicer shall deposit
therein all amounts, if any, to be paid under Section 9.1. All such deposits
shall be made not later than the Deposit Date following the end of the related
Collection Period.
SECTION 5.5. Distributions. (a) On each Determination Date, Servicer
shall calculate all amounts required to determine the amounts to be deposited on
the related Distribution Date from the Reserve Account and the Payahead Account
into the Collection Account and from the Collection Account into the Note
Distribution Account, the Certificate Distribution Account and the Payahead
Account.
(b) On or before each Distribution Date, Servicer shall instruct
Indenture Trustee in writing (based on the information contained in the
Servicer's Report delivered on the related Determination Date pursuant to
Section 4.9) to, and the Indenture Trustee shall:
(i) withdraw from the Payahead Account and deposit in the
Collection Account, in immediately available funds, (x) with respect to
each Precomputed Receivable for which the payments made by or on behalf
of the Obligor for the related Collection Period are less than the
scheduled payment for the related Collection Period, the amount of
Payaheads, if any, made with respect to such Receivable which, when
added to the amount of such payments, is equal to the amount of such
scheduled payment, (y) with respect to each Precomputed Receivable for
which prepayments insufficient to prepay the Receivable in full have
been made by or on behalf of the Obligor for the related Collection
Period, the amount of Payaheads, if any, made with respect to such
Receivable which, when added to the amount of such prepayments, is
equal to an amount sufficient to prepay such Receivable in full, and
(z) the amount of all Payaheads, if any, made with respect to any
Purchased Receivable;
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(ii) withdraw from the Collection Account and deposit in the
Payahead Account (or receive from the Servicer, which will remit to the
Indenture Trustee for deposit in the Payahead Account, as the case may
be), in immediately available funds, the aggregate amount of
Collections on Precomputed Receivables treated as Payaheads pursuant to
Section 5.2 for the Collection Period related to such Distribution
Date; and
(iii) withdraw from the Reserve Account and deposit in the
Collection Account the Reserve Account Transfer Amount for such
Distribution Date.
(c) Subject to the last paragraph of this Section 5.5(c), on each
Distribution Date, Servicer shall instruct Indenture Trustee in writing (based
on the information contained in the Servicer's Report delivered on the related
Determination Date pursuant to Section 4.9) to make, and Indenture Trustee shall
make, the following deposits and distributions from the Collection Account for
deposit in the applicable account by 11:00 a.m. (
New York time), to the extent
of the Total Distribution Amount, in the following order of priority:
(i) to Servicer, from the Total Distribution Amount, the
Servicing Fee for the related Collection Period and all accrued and
unpaid Servicing Fees for prior Collection Periods;
(ii) to the Note Distribution Account, from the Total
Distribution Amount remaining after the application of clause (i), the
Noteholders' Interest Distributable Amount;
(iii) to the Certificate Distribution Account, from the Total
Distribution Amount remaining after the application of clause (i) and
clause (ii), the Certificateholders' Interest Distributable Amount;
(iv) to the Note Distribution Account, from the Total
Distribution Amount remaining after the application of clause (i)
through clause (iii), the Noteholders' Principal Distributable Amount;
(v) to the Note Distribution Account (or, if the Outstanding
Amount of the Notes has been reduced to zero, to the Certificate
Distribution Account) for distribution in respect of principal, from
the Total Distribution Amount remaining after the application of clause
(i) through clause (iv), the lesser of (A) such remaining Total
Distribution Amount and (B) the Additional Principal Distributable
Amount for such Distribution Date;
(vi) to the Certificate Distribution Account, from the Total
Distribution Amount remaining after the application of clauses (i)
through (v), the Certificateholders' Principal Distributable Amount;
(vii) to the Reserve Account, from the Total Distribution
Amount remaining after the application of clauses (i) through (vi),
until the amount on deposit in the Reserve Account equals the Specified
Reserve Account Balance;
(viii) to the Servicer, Additional Servicing for such
Distribution Date; and
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(ix) to Seller, any amounts remaining.
Notwithstanding the foregoing, following the occurrence and during the
continuation of an Event of Default which has resulted in an acceleration of the
Notes, the Total Distribution Amount remaining after the application of clause
(i) and (ii) above will be deposited in the Note Distribution Account to the
extent necessary to reduce the principal amount of the Notes to zero in
accordance with and in the priority set forth in Section 5.4 of the Indenture,
and the Certificateholders will not receive any distributions until the
principal amount and accrued interest on the Notes have been paid in full. In
the event that the Collection Account is maintained with an institution other
than Indenture Trustee, Indenture Trustee shall instruct and cause such
institution to make all deposits and distributions pursuant to this Section
5.5(c) on the related Deposit Date.
(d) Indenture Trustee shall continue to perform its duties under this
Agreement after the Outstanding Amount of the Notes has been reduced to zero and
the Indenture has been discharged in accordance with its terms. The protections,
immunities and standard of care afforded the Indenture Trustee under the
Indenture shall apply to the performance of its duties hereunder.
SECTION 5.6. Statements to Certificateholders and Noteholders. On each
Determination Date, Servicer shall provide to Indenture Trustee (with a copy to
each Rating Agency) written instructions for Indenture Trustee to forward to
each Noteholder of record, to each Paying Agent, if any, and to Owner Trustee
for Owner Trustee to forward to each Certificateholder of record, a statement
substantially in the form of Exhibit A setting forth at least the following
information as to the Notes and the Certificates to the extent applicable:
(a) the amount of such distribution allocable to principal of each
class of Notes and to the Certificate Balance of the Certificates;
(b) the amount of such distribution allocable to interest on or with
respect to each class of Notes and to the Certificates;
(c) the Pool Balance as of the close of business on the last day of the
preceding Collection Period;
(d) the aggregate outstanding principal balance of each class of the
Notes, the Note Pool Factor for each such class, the Certificate Balance and the
Certificate Pool Factor after giving effect to payments allocated to principal
reported under clause (a) above;
(e) the amount of the Servicing Fee paid to Servicer with respect to
the related Collection Period and with respect to previously accrued and unpaid
Servicing Fees;
(f) the amount of the aggregate Realized Losses, if any, for such
Collection Period;
(g) the Reserve Account Transfer Amount, if any, for such Distribution
Date, the Specified Reserve Account Balance for such Distribution Date, the
amount distributed to Seller from the Reserve Account on such Distribution Date,
and the balance of the Reserve Account (if any) on such Distribution Date, after
giving effect to changes therein on such Distribution Date;
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(h) the Noteholders' Interest Carryover Shortfall, the
Certificateholders' Interest Carryover Shortfall, the Noteholders' Principal
Carryover Shortfall, and the Certificateholders' Principal Carryover Shortfall,
if any, in each case as applicable to each class of Securities, and the change
in such amounts from the preceding statement;
(i) the Additional Principal Distributable Amount for such Distribution
Date;
(j) the aggregate Purchase Amounts paid by Seller or Servicer with
respect to the related Collection Period; and
(k) the number, and aggregate Principal Balance outstanding, of
Receivables past due 30-59, 60-89 and 90 and over 90 days.
Each amount set forth pursuant to paragraph (a), (b), (e) or (h) above shall be
expressed as a dollar amount per $1,000 of the initial principal balance of the
Notes (or class thereof) or the initial Certificate Balance, as applicable.
SECTION 5.7. Net Deposits. As an administrative convenience, unless
Servicer is required to remit Collections within two Business Days of receipt
thereof, Servicer will be permitted to make the deposit of Collections and
Purchase Amounts for or with respect to the Collection Period net of
distributions to be made to Servicer with respect to the Collection Period.
Servicer, however, will account to Issuer, Indenture Trustee, the Noteholders
and the Certificateholders as if all deposits, distributions and transfers were
made individually.
SECTION 5.8. Reserve Account. (a) Seller shall establish and maintain
in the name of the Indenture Trustee, as agent for the Issuer, the Noteholders
and Certificateholders, an Eligible Deposit Account (the "Reserve Account"). The
Reserve Account shall be initially established and maintained with the Indenture
Trustee (the "Securities Intermediary"). On the Closing Date, Seller shall
deposit or cause to be deposited in the Reserve Account an amount equal to the
Reserve Account Deposit.
(b) Indenture Trustee shall, at the written direction of Servicer,
direct the Securities Intermediary to invest funds on deposit in the Reserve
Account in Eligible Investments selected by Servicer and confirmed in writing by
Servicer to Indenture Trustee; provided that it is understood and agreed that
none of Indenture Trustee, Securities Intermediary, Servicer or Issuer shall be
liable for any loss arising from such investment in Eligible Investments. Funds
on deposit in the Reserve Account shall be invested in Eligible Investments that
will mature so that all such funds will be available at the close of business on
each Deposit Date; provided that to the extent permitted by the Rating Agencies
following written request by Servicer, funds on deposit in the Reserve Account
may be invested in Eligible Investments that mature later than the next Deposit
Date. Funds deposited in the Reserve Account on a Deposit Date upon the maturity
of any Eligible Investments are not required to be (but may be) invested
overnight.
(c) The Securities Intermediary hereby expressly agrees with the
Indenture Trustee that: (i) all matters relating to the Reserve Account shall be
governed by the laws of the State of ___________; (ii) all Eligible Investments
held by the Securities Intermediary on behalf of the Indenture Trustee in the
Reserve Account shall be treated as "financial assets" (as defined in Article 8
of the
New York Uniform Commercial Code; (iii) the Securities Intermediary will
treat
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the Indenture Trustee as entitled to exercise the rights comprising the
investments or financial assets credited to the Reserve Account; (iv) the
financial assets credited to the Reserve Account shall not be registered in the
name of, payable to the order of, or specially indorsed to the Indenture
Trustee; and (v) the Securities Intermediary will not agree to comply with
entitlement orders originated by any Person with respect to the investments or
financial assets held in the Reserve Account other than the Indenture Trustee.
(d) The Reserve Account shall be under the sole custody and control of
Indenture Trustee. If, at any time, the Reserve Account ceases to be an Eligible
Deposit Account, Indenture Trustee shall within 10 Business Days (or such longer
period, not to exceed 30 calendar days, as to which each Rating Agency may
consent) establish a new Reserve Account as an Eligible Deposit Account and
shall transfer or cause to be transferred any cash and/or any investments that
are in the existing account which is no longer an Eligible Deposit Account to
such new Reserve Account.
(e) Amounts on deposit in the Reserve Account will be released to
Seller on each Distribution Date to the extent that the amount credited to the
Reserve Account would exceed the Specified Reserve Account Balance. Upon any
distribution to Seller of amounts from the Reserve Account, the Holders will not
have any rights in, or claims to, such amounts. Amounts distributed to Seller
from the Reserve Account in accordance with this Section shall not be available
under any circumstances to Issuer, Owner Trustee, Indenture Trustee or the
Holders and Seller shall in no event thereafter be required to refund any such
distributed amounts.
(f) With respect to the Reserve Account Property, Seller, Issuer and
the Indenture Trustee agree that the Reserve Account Deposit and all other funds
and Reserve Account Property shall be delivered to Indenture Trustee for credit
to the Reserve Account. In addition:
(i) any Reserve Account Property that constitutes Physical
Property shall be delivered to Indenture Trustee in accordance with
paragraph (a) of the definition of "Delivery" and shall be held,
pending maturity or disposition, solely by Indenture Trustee or a
financial intermediary (as such term is defined in Section 8-313(4) of
the UCC) acting solely for Indenture Trustee;
(ii) any Reserve Account Property that is a book entry
security held through the Federal Reserve System pursuant to Federal
book-entry regulations shall be delivered in accordance with paragraph
(b) of the definition of "Delivery" and shall be maintained by
Indenture Trustee pending maturity or disposition, through continued
book entry registration of such Reserve Account Property as described
in such paragraph; and
(iii) any Reserve Account Property that is an "uncertificated
security" under Article 8 of the UCC and that is not governed by clause
(ii) above shall be delivered to Indenture Trustee in accordance with
paragraph (c) of the definition of "Delivery" and shall be maintained
by Indenture Trustee pending maturity or disposition, through continued
registration of Indenture Trustee's (or its nominee's) ownership of
such security.
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Effective upon the crediting of any Reserve Account Property to the Reserve
Account, Indenture Trustee shall be deemed to have represented that it has
purchased such Reserve Account Property for value, in good faith and without
notice of any adverse claim thereto.
(g) Issuer and Servicer agree to take or cause to be taken such further
actions, to execute, deliver and file or cause to be executed, delivered and
filed such further documents and instruments (including any UCC financing
statements or this Agreement) as may be determined to be necessary, in an
Opinion of Counsel to Issuer delivered to Owner Trustee and Indenture Trustee in
order to perfect the interests created by this Section 5.8 and otherwise fully
to effectuate the purposes, terms and conditions of this Section 5.8. Issuer and
Servicer shall:
(1) promptly execute, deliver and file any financing
statements, amendments, continuation statements, assignments,
certificates and other documents with respect to such interests and
perform all such other acts as may be necessary in order to perfect or
to maintain the perfection of Indenture Trustee's security interest;
and
(2) make the necessary filings of financing statements or
amendments thereto within five days after the occurrence of any of the
following: (1) any change in their respective names or any trade names,
(2) any change in the location of their respective chief executive
offices or principal places of business and (3) any merger or
consolidation or other change in their respective identities or
corporate structures; and shall promptly notify Issuer and Indenture
Trustee of any such filings.
(h) Investment earnings attributable to the Reserve Account Property
and proceeds therefrom shall be held by Indenture Trustee for the benefit of
Seller. Investment earnings attributable to the Reserve Account Property shall
not be available to pay the distributions provided for in Section 5.5 and shall
not otherwise be subject to any claims or rights of the Holders or Servicer.
Indenture Trustee shall cause all investment earnings attributable to the
Reserve Account to be distributed on each Distribution Date to Seller.
(i) Seller may at any time, without consent of Holders, sell,
transfer, convey or assign in any manner its rights to and interests in
distributions from the Reserve Account provided that (i) the Rating
Agencies confirm in writing that such action will not result in a
reduction or withdrawal of the rating of any class of Notes or
Certificates, (ii) Seller provides to Issuer and Indenture Trustee an
Opinion of Counsel from independent counsel that such action will not
cause Issuer to be classified as an association (or publicly traded
partnership) taxable as a corporation for federal income tax purposes
and (iii) such transferee or assignee agrees in writing to take
positions for federal income tax purposes consistent with the federal
income tax positions agreed to be taken by Seller.
ARTICLE VI. SELLER.
SECTION 6.1. Representations of Seller. Seller makes the following
representations on which Issuer is deemed to have relied in acquiring the
Receivables and the other properties and rights included in the Owner Trust
Estate. The representations speak as of the execution and delivery of this
Agreement and shall survive the sale of the Receivables to Issuer and the pledge
thereof to Indenture Trustee pursuant to the Indenture.
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(a) Organization and Good Standing. Seller has been duly organized and
is validly existing as a Delaware limited liability company in good standing
under the laws of the State of Delaware, with the power and authority to own its
properties and to conduct its business as such properties are presently owned
and such business is presently conducted and had at all relevant times, and has,
full power, authority and legal right to acquire, own and sell the Receivables
and the other properties and rights included in the Owner Trust Estate assigned
to Issuer pursuant to Article II.
(b) Power and Authority. Seller has the power, authority and legal
right to execute and deliver this Agreement and the Basic Documents to which it
is a party and to carry out their respective terms and to sell and assign the
property to be sold and assigned to and deposited with Issuer as the Owner Trust
Estate; and the execution, delivery and performance of this Agreement and the
Basic Documents to which it is a party have been duly authorized by Seller by
all necessary corporate action.
(c) No Consent Required. No approval, authorization, consent, license
or other order or action of, or filing or registration with, any governmental
authority, bureau or agency is required in connection with the execution,
delivery or performance of this Agreement or the Basic Documents to which it is
a party or the consummation of the transactions contemplated hereby or thereby,
other than (i) as may be required under the blue sky or securities laws of any
State or the Securities Act of 1933, as amended, and (ii) the filing of UCC
financing statements.
(d) Valid Sale; Binding Obligation. Seller intends this Agreement to
effect a valid sale, transfer, and assignment of the Receivables and the other
properties and rights included in the Owner Trust Estate conveyed by Seller to
Issuer hereunder, enforceable against creditors of and purchasers from Seller;
and each of this Agreement and the Basic Documents to which it is a party
constitutes a legal, valid and binding obligation of Seller, enforceable against
Seller in accordance with its respective terms, subject, as to enforceability,
to applicable bankruptcy, insolvency, reorganization, conservatorship,
receivership, liquidation and other similar laws affecting enforcement of the
rights of creditors generally and to equitable limitations on the availability
of specific remedies.
(e) No Violation. The execution, delivery and performance by Seller of
this Agreement and the Basic Documents to which it is a party and the
consummation of the transactions contemplated hereby and thereby will not
conflict with, result in any material breach of any of the terms and provisions
of, constitute (with or without notice or lapse of time) a material default
under or result in the creation or imposition of any Lien upon any of its
material properties pursuant to the terms of, (i) the certificate of
incorporation or bylaws of Seller, (ii) any material indenture, contract, lease,
mortgage, deed of trust or other instrument or agreement to which Seller is a
party or by which Seller is bound, or (iii) any law, order, rule or regulation
applicable to Seller of any federal or state regulatory body, any court,
administrative agency, or other governmental instrumentality having jurisdiction
over Seller.
(f) No Proceedings. There are no proceedings or investigations pending,
or, to the knowledge of Seller, threatened, before any court, regulatory body,
administrative agency, or other tribunal or governmental instrumentality having
jurisdiction over Seller or its properties: (i) asserting the invalidity of this
Agreement, any other Basic Document, the Notes or the
24
Certificates, (ii) seeking to prevent the issuance of the Notes or Certificates
or the consummation of any of the transactions contemplated by this Agreement or
any other Basic Document, (iii) seeking any determination or ruling that might
materially and adversely affect the performance by Seller of its obligations
under, or the validity or enforceability of, this Agreement, any other Basic
Document, the Notes or the Certificates, to the extent applicable, or (iv) that
may materially and adversely affect the federal or state income, excise
franchise or similar tax attributes of the Certificates.
SECTION 6.2. Continued Existence. During the term of this Agreement,
subject to Section 6.4, Seller will keep in full force and effect its existence,
rights and franchises as a limited liability company organized under the laws of
the State of Delaware and will obtain and preserve its qualification to do
business in each jurisdiction in which such qualification is or shall be
necessary to protect the validity and enforceability of this Agreement, the
Basic Documents and each other instrument or agreement necessary or appropriate
to the proper administration of this Agreement and the transactions contemplated
hereby.
SECTION 6.3. Liability of Seller; Indemnities. Seller shall be liable
in accordance herewith only to the extent of the obligations specifically
undertaken by Seller under this Agreement.
(a) Seller shall indemnify, defend and hold harmless Issuer, Owner
Trustee and Indenture Trustee and their respective officers, directors,
employees and agents from and against any taxes that may at any time be asserted
against any such Person with respect to, and on the date of, the sale of the
Receivables to Issuer or the issuance and original sale of the Notes and
Certificates, including any sales, gross receipts, general corporation, tangible
personal property, privilege or license taxes (but, in the case of all
indemnified Persons other than Issuer, not including any taxes asserted with
respect to Federal or other income taxes arising out of transactions
contemplated by this Agreement and the other Basic Documents) and costs and
expenses in defending against the same.
(b) Seller shall indemnify, defend and hold harmless Issuer, Owner
Trustee, Indenture Trustee, the Certificateholders and the Noteholders and the
respective officers, directors, employees and agents of Issuer, Owner Trustee
and Indenture Trustee from and against any and all costs, expenses, losses,
claims, damages and liabilities to the extent arising out of, or imposed upon
such Person through or as a result of (i) Seller's willful misfeasance, bad
faith or gross negligence (other than errors in judgment) in the performance of
its duties under this Agreement, or by reason of reckless disregard of its
obligations and duties under this Agreement, (ii) Seller's violation of Federal
or state securities laws in connection with the offering and sale of the Notes
and the Certificates or in connection with any application relating to the Notes
or Certificates under any state securities laws and (iii) the failure of any
Receivable conveyed by it to Issuer hereunder, or the sale of the related
Financed Vehicle, to comply with all requirements of applicable law.
(c) Seller shall be liable as primary obligor for, and shall indemnify,
defend and hold harmless Owner Trustee, Indenture Trustee and their respective
officers, directors, employees and agents from and against any and all costs,
expenses, losses, claims, damages and liabilities arising out of, or incurred in
connection with, the acceptance or performance of the trusts and
25
duties set forth herein and in the Trust Agreement, in the case of Owner
Trustee, and herein and in the Indenture, in the case of Indenture Trustee,
except to the extent that such cost, expense, loss, claim, damage or liability:
(i) in the case of Owner Trustee, shall be due to the willful misfeasance, bad
faith or negligence (except for errors in judgment) of Owner Trustee, or, in the
case of Indenture Trustee, shall be due to the willful misfeasance, bad faith or
negligence of Indenture Trustee; (ii) in the case of Owner Trustee, shall arise
from the breach by Owner Trustee of any of its representations or warranties set
forth in the Trust Agreement or any other Basic Document; or (iii) in the case
of Indenture Trustee, shall arise from the breach by Indenture Trustee of any of
its representations and warranties or covenants set forth in the Indenture. Such
liability shall survive the termination of Issuer, the discharge of the Notes
and Certificates and removal or resignation of such Indenture Trustee or Owner
Trustee.
(d) Seller shall pay any and all taxes levied or assessed upon the
Issuer or upon all or any part of the Owner Trust Estate.
Indemnification under this Section shall survive the resignation or removal of
Owner Trustee or Indenture Trustee and the termination of this Agreement or the
Indenture or the Trust Agreement, as applicable, and shall include reasonable
fees and expenses of counsel and other expenses of litigation. If Seller shall
have made any indemnity payments pursuant to this Section and the Person to or
on behalf of whom such payments are made thereafter shall collect any of such
amounts from others, such Person shall promptly repay such amounts to Seller,
without interest.
SECTION 6.4. Merger or Consolidation of, or Assumption of the
Obligations of, Seller. Any Person (a) into which Seller may be merged or
consolidated, (b) which may result from any merger or consolidation to which
Seller shall be a party or (c) which may succeed to the properties and assets of
Seller substantially as a whole, shall be the successor to Seller without the
execution or filing of any document or any further act by any of the parties to
this Agreement; provided that Seller hereby covenants that it will not
consummate any of the foregoing transactions except upon satisfaction of the
following: (i) the surviving Seller if other than Special Purpose Entity,
executes an agreement of assumption to perform every obligation of Seller under
this Agreement, (ii) immediately after giving effect to such transaction, no
representation or warranty made pursuant to Section 3.1 or 6.1 shall have been
breached, (iii) Seller shall have delivered to Issuer and Indenture Trustee an
Officer's Certificate and an Opinion of Counsel each stating that such
consolidation, merger or succession and such agreement of assumption comply with
this Section and that all conditions precedent, if any, provided for in this
Agreement relating to such transaction have been complied with, and that the
Rating Agency Condition shall have been satisfied with respect to such
transaction, (iv) the surviving Seller shall have a consolidated net worth at
least equal to that of the predecessor Seller, (v) such transaction will not
result in a material adverse federal or state tax consequence to Issuer, the
Noteholders or the Certificateholders and (vi) unless Special Purpose Entity is
the surviving entity, Seller shall have delivered to Issuer and Indenture
Trustee an Opinion of Counsel either (A) stating that, in the opinion of such
counsel, all financing statements and continuation statements and amendments
thereto have been executed and filed that are necessary fully to preserve and
protect the interest of Issuer and Indenture Trustee, respectively, in the
Receivables and reciting the details of such filings, or (B) stating that, in
the opinion of such counsel, no such action shall be necessary to preserve and
protect such interests.
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SECTION 6.5. Limitation on Liability of Seller and Others. Seller and
any director or officer or employee or agent of Seller may rely in good faith on
the advice of counsel or on any document of any kind, prima facie properly
executed and submitted by any Person respecting any matters arising under any
Basic Document (provided that such reliance shall not limit in any way Seller's
obligations under Section 3.2 or 6.3). Seller shall not be under any obligation
to appear in, prosecute or defend any legal action that shall not be incidental
to its obligations under this Agreement, and that in its opinion may involve it
in any expense or liability.
SECTION 6.6. Seller May Own Certificates or Notes. Seller and any
Affiliate thereof may in its individual or any other capacity become the owner
or pledgee of Certificates or Notes with the same rights as it would have if it
were not Seller or an Affiliate thereof, except as expressly provided herein or
in any Basic Document. Except as set forth herein or in the other Basic
Documents, Notes and Certificates so owned by or pledged to Seller or any such
Affiliate shall have an equal and proportionate benefit under the provisions of
this Agreement and the other Basic Documents, without preference, priority, or
distinction as among all of the Notes and Certificates.
ARTICLE VII. SERVICER.
SECTION 7.1. Representations of Servicer. Servicer makes the following
representations on which Issuer is deemed to have relied in acquiring the
Receivables and the other properties and rights included in the Owner Trust
Estate. The representations speak as of the execution and delivery of the
Agreement and shall survive the sale, transfer and assignment of the Receivables
to Issuer and the pledge thereof to Indenture Trustee pursuant to the Indenture.
(a) Organization and Good Standing. Servicer has been duly organized
and is validly existing as a state banking corporation in good standing under
the laws of the State of Delaware, with the power and authority to own its
properties and to conduct its business as such properties are presently owned
and such business is presently conducted, and had at all relevant times, and
shall have, the power, authority and legal right to service the Receivables and
the other properties and rights included in the Owner Trust Estate.
(b) Due Qualification. Servicer shall be duly qualified to do business
as a foreign corporation in good standing, and shall have obtained all necessary
licenses and approvals in all jurisdictions in which the ownership or lease of
property or the conduct of its business (including the servicing of the
Receivables as required by this Agreement) shall require such qualifications.
(c) Power and Authority. Servicer has the power, authority and legal
right to execute and deliver this Agreement and the Basic Documents to which it
is a party and to carry out their respective terms; and the execution, delivery
and performance of this Agreement and the Basic Documents to which it is a party
have been duly authorized by Servicer by all necessary corporate action.
(d) No Consent Required. No approval, authorization, consent, license
or other order or action of, or filing or registration with, any governmental
authority, bureau or agency is required in connection with the execution,
delivery or performance of this Agreement, the Basic
27
Documents to which it is a party or the consummation of the transactions
contemplated hereby or thereby, other than (i) as may be required under the blue
sky or securities laws of any State or the Securities Act of 1933, as amended,
and (ii) the filing of UCC financing statements.
(e) Binding Obligation. Each of this Agreement and the Basic Documents
to which it is a party constitutes a legal, valid and binding obligation of
Servicer, enforceable against Servicer in accordance with its respective terms,
subject, as to enforceability, to applicable bankruptcy, insolvency,
reorganization, conservatorship, receivership, liquidation and other similar
laws affecting enforcement of the rights of creditors of banks generally and to
equitable limitations on the availability of specific remedies.
(f) No Violation. The execution, delivery and performance by Servicer
of this Agreement and the Basic Documents to which it is a party and the
consummation of the transactions contemplated hereby and thereby will not
conflict with, result in any material breach of any of the terms and provisions
of, constitute (with or without notice or lapse of time) a material default
under, or result in the creation or disposition of any Lien upon any of its
material properties pursuant to the terms of, (i) the [certificate of
incorporation] or bylaws of Servicer, (ii) any material indenture, contract,
lease, mortgage, deed of trust or other instrument or agreement to which
Servicer is a party or by which Servicer is bound, or (iii) any law, order, rule
or regulation applicable to Servicer of any federal or state regulatory body,
any court, administrative agency, or other governmental instrumentality having
jurisdiction over Servicer.
(g) No Proceedings. There are no proceedings or investigations pending,
or, to Servicer's knowledge, threatened, before any court, regulatory body,
administrative agency, or tribunal or other governmental instrumentality having
jurisdiction over Servicer or its properties: (i) asserting the invalidity of
this Agreement, any other Basic Document, the Notes or the Certificates, (ii)
seeking to prevent the issuance of the Certificates or the Notes or the
consummation of any of the transactions contemplated by this Agreement or any
other Basic Document, (iii) seeking any determination or ruling that might
materially and adversely affect the performance by Servicer of its obligations
under, or the validity or enforceability of, this Agreement, any other Basic
Document, the Notes or the Certificates, to the extent applicable, or (iv) that
may materially and adversely affect the federal or state income, excise,
franchise or similar tax attributes of the Certificates.
SECTION 7.2. Indemnities of Servicer. (a) Servicer shall be liable in
accordance herewith only to the extent of the obligations specifically
undertaken by Servicer under this Agreement.
(b) Servicer shall indemnify, defend and hold harmless Issuer, Owner
Trustee, Indenture Trustee, Seller, the Certificateholders and the Noteholders
and any of the respective officers, directors, employees and agents of Issuer,
Owner Trustee, Indenture Trustee or Seller from any and all costs, expenses,
losses, claims, damages and liabilities (including reasonable attorneys' fees
and expenses) to the extent arising out of, or imposed upon any such Person
through, the gross negligence, willful misfeasance or bad faith (other than
errors in judgment) of Servicer in the performance of its obligations and duties
under this Agreement or in the performance of the obligations and duties of any
subservicer under any subservicing agreement.
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(c) Servicer shall indemnify, defend and hold harmless Issuer, Owner
Trustee, and Indenture Trustee and their respective officers, directors,
employees and agents from and against any taxes that may at any time be asserted
against any such Person with respect to the transactions contemplated in this
Agreement or in the other Basic Documents, including any sales, gross receipts,
general corporation, tangible or intangible personal property, franchise,
privilege, or license taxes, or any taxes of any kind which may be asserted
(but, in the case of all indemnified Persons other than Issuer, not including
any Federal or other income taxes arising out of transactions contemplated by
this Agreement and the other Basic Documents) against the Issuer, and costs and
expenses in defending against the same.
(d) Servicer shall indemnify, defend and hold harmless Issuer, Owner
Trustee, Indenture Trustee, Seller, Certificateholders and the Noteholders or
any of the respective officers, directors, employees and agents of Issuer, Owner
Trustee, Indenture Trustee or Seller from any and all costs, expenses, losses,
claims, damages and liabilities (including reasonable attorneys' fees and
expenses) to the extent arising out of or imposed upon any such Person as a
result of any compensation payable to any subcustodian or subservicer (including
any fees payable in connection with the release of any Receivable File from the
custody of such subservicer or in connection with the termination of the
servicing activities of such subservicer with respect to any Receivable) whether
pursuant to the terms of any subservicing agreement or otherwise.
(e) Servicer shall indemnify, defend and hold harmless Issuer, Owner
Trustee, Indenture Trustee, Seller, the Certificateholders and the Noteholders
or any of the respective directors, officers, employees and agents of Issuer,
Owner Trustee, Indenture Trustee and Seller from and against any and all costs,
expenses, losses, damages, claims and liabilities, including reasonable fees and
expenses of counsel and expenses of litigation, arising out of or resulting from
the use, ownership, or operation of any Financed Vehicle.
(f) Servicer shall indemnify, defend and hold harmless Indenture
Trustee and Owner Trustee or any of their respective officers, directors,
employees and agents from any and all costs, expenses, losses, claims, damages
and liabilities (including reasonable attorneys' fees and expenses) to the
extent arising out of the transactions contemplated by the Indenture, the
Sale
and Servicing Agreement and the Administration Agreement unless such costs,
expenses, losses, claims, damages and liabilities are due to the negligence,
willful misfeasance or bad faith of the Indenture Trustee or Owner Trustee,
respectively.
Indemnification under this Section shall survive the resignation or removal of
Owner Trustee or Indenture Trustee and the termination of this Agreement or the
Indenture or the Trust Agreement, as applicable, and shall include reasonable
fees and expenses of counsel and other expenses of litigation. If Servicer shall
have made any indemnity payments pursuant to this Section and the Person to or
on behalf of whom such payments are made thereafter shall collect any of such
amounts from others, such Person shall promptly repay such amounts to Servicer,
without interest.
SECTION 7.3. Merger or Consolidation of, or Assumption of the
Obligations of, Servicer. Any Person (a) into which Servicer may be merged or
consolidated, (b) which may result from any merger or consolidation to which
Servicer shall be a party, (c) which may
29
succeed to the properties and assets of Servicer, substantially as a whole, or
(d) 50% of the voting stock of which is owned directly or indirectly by VW
Credit, may become the successor to Servicer; provided that, unless VW Credit is
the surviving party to such transaction, Servicer hereby covenants that it will
not consummate any of the foregoing transactions except upon satisfaction of the
following: (i) the surviving Servicer if other than VW Credit, executes an
agreement of assumption to perform every obligation of Servicer under this
Agreement, (ii) immediately after giving effect to such transaction, no
representation or warranty made pursuant to Section 7.1 shall have been breached
and no Servicer Termination Event, and no event that, after notice or lapse of
time, or both, would become a Servicer Termination Event shall have occurred and
be continuing, (iii) Servicer shall have delivered to Issuer and Indenture
Trustee an Officer's Certificate and an Opinion of Counsel each stating that
such consolidation, merger or succession and such agreement of assumption comply
with this Section and that all conditions precedent, if any, provided for in
this Agreement relating to such transaction have been complied with, and that
the Rating Agency Condition shall have been satisfied with respect to such
transaction, (iv) the surviving Servicer shall have a consolidated net worth at
least equal to that of the predecessor Servicer, and (v) such transaction will
not result in a material adverse Federal or state tax consequence to Issuer, the
Noteholders or the Certificateholders.
SECTION 7.4. Limitation on Liability of Servicer and Others. Neither
Servicer nor any of its directors, officers, employees or agents shall be under
any liability to Issuer, the Noteholders or the Certificateholders, except as
provided under this Agreement, for any action taken or for refraining from the
taking of any action by Servicer or any subservicer pursuant to this Agreement
or for errors in judgment; provided that this provision shall not protect
Servicer or any such person against any liability that would otherwise be
imposed by reason of willful misfeasance, bad faith or gross negligence in the
performance of duties (except for errors in judgment) or by reason of reckless
disregard of obligations and duties under this Agreement. Servicer or any
subservicer and any of their respective directors, officers, employees or agents
may rely in good faith on any document of any kind prima facie properly executed
and submitted by any Person respecting any matters arising under this Agreement.
Except as provided in this Agreement, Servicer shall not be under any
obligation to appear in, prosecute or defend any legal action that shall be
incidental to its duties to service the Receivables in accordance with this
Agreement, and that in its opinion may involve it in any expense or liability;
provided that Servicer may (but shall not be required to) undertake any
reasonable action that it may deem necessary or desirable in respect of the
Basic Documents to protect the interests of the Certificateholders under this
Agreement and the Noteholders under the Indenture. In such event, the legal
expense and costs of such action and any liability resulting therefrom shall be
expenses, costs and liabilities of the Servicer.
SECTION 7.5. VW Credit Not To Resign as Servicer. Subject to the
provisions of Section 7.3, VW Credit hereby agrees not to resign from the
obligations and duties hereby imposed on it as Servicer under this Agreement
except upon determination that the performance of its duties hereunder shall no
longer be permissible under applicable law or if such resignation is required by
regulatory authorities. Notice of any such determination permitting the
resignation of VW Credit as Servicer shall be communicated to Issuer and
Indenture Trustee at the earliest practicable time (and, if such communication
is not in writing, shall be confirmed in writing at the earliest practicable
time) and any such determination shall be evidenced by an Opinion of
30
Counsel to such effect delivered to Issuer and Indenture Trustee concurrently
with or promptly after such notice. No such resignation shall become effective
until the earlier of Indenture Trustee or a Successor Servicer having assumed
the responsibilities and obligations of the resigning Servicer in accordance
with Section 8.2 or the date upon which any regulatory authority requires such
resignation.
SECTION 7.6. Existence. Subject to the provisions of Section 7.3,
during the term of this Agreement, VW Credit will keep in full force and effect
its existence, rights and franchises as a Delaware corporation.
SECTION 7.7. Servicer May Own Notes or Certificates. The Servicer, and
any Affiliate of the Servicer, may, in its individual or any other capacity,
become the owner or pledgee of Notes or Certificates with the same rights as it
would have if it were not the Servicer or an Affiliate thereof, except as
expressly provided herein or in any Basic Document. Except as set forth herein
or in the other Basic Documents, Notes and Certificates so owned by or pledged
to Servicer or any such Affiliate shall have an equal and proportionate benefit
under the provisions of this Agreement and the other Basic Documents, without
preference, priority, or distinction as among all of the Notes and Certificates.
ARTICLE VIII. SERVICER TERMINATION EVENTS.
SECTION 8.1. Servicer Termination Event. If any one of the following
events (a "Servicer Termination Event") shall occur and be continuing:
(a) any failure by Servicer to deliver to Indenture Trustee and Issuer
the Servicer's Report in accordance with Section 4.9, or any failure by Servicer
or Seller to deliver to Indenture Trustee or Issuer for deposit in any of the
Trust Accounts or the Certificate Distribution Account any required payment or
to direct Indenture Trustee or Issuer to make any required distributions
therefrom that shall continue unremedied for a period of five Business Days
after written notice of such failure is received by Servicer from Issuer or
Indenture Trustee or after discovery of such failure by an Authorized Officer of
Servicer; or
(b) failure on the part of Servicer or Seller duly to observe or to
perform in any material respect any other covenants or agreements of Servicer or
Seller, as applicable, set forth in this Agreement or any other Basic Document
to which it is a party, which failure shall (i) materially and adversely affect
the rights of either the Certificateholders or Noteholders and (ii) continue
unremedied for a period of 60 days after the date on which written notice of
such failure, requiring the same to be remedied, shall have been given (A) to
Servicer by Issuer or Indenture Trustee or (B) to Servicer and to Issuer and
Indenture Trustee by the Holders of Notes evidencing not less than 25% of the
Outstanding Amount of the Notes or Holders of Certificates evidencing not less
than 25% of the outstanding Certificate Balance, as applicable (or for such
longer period, not in excess of 120 days, as may be reasonably necessary to
remedy such default; provided that such default is capable of remedy within 120
days and Servicer delivers an Officer's Certificate to Issuer and Indenture
Trustee to such effect and to the effect that Servicer or Seller, as applicable,
has commenced or will promptly commence, and will diligently pursue, all
reasonable efforts to remedy such default); or
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(c) an Insolvency Event occurs with respect to Servicer, Seller, any
Seller Affiliate or any of their respective successors; then, and in each and
every case, so long as any Servicer Termination Event shall not have been
remedied, either Indenture Trustee, or the Holders of Notes evidencing greater
than 50% of the Outstanding Amount of the Notes (or, if no Notes are then
Outstanding, either the Issuer or the Holders of Certificates evidencing greater
than 50% of the Certificate Balance), by notice then given in writing to
Servicer (and to Issuer or Indenture Trustee, as applicable, if given by the
Holders) may terminate all the rights and obligations (other than the
obligations set forth in Section 7.2) of Servicer under this Agreement. On or
after the receipt by Servicer of such written notice, all authority and power of
Servicer under this Agreement, whether with respect to the Notes, the
Certificates or the Receivables or otherwise, shall, without further action,
pass to and be vested in Indenture Trustee or such Successor Servicer as may be
appointed under Section 8.2; and, without limitation, Indenture Trustee and
Issuer are hereby authorized and empowered to execute and deliver, on behalf of
the predecessor Servicer, as attorney-in-fact or otherwise, any and all
documents and other instruments, and to do or accomplish all other acts or
things necessary or appropriate to effect the purposes of such notice of
termination, whether to complete the transfer and endorsement of the Receivables
and related documents, or otherwise. The predecessor Servicer shall cooperate
with the Successor Servicer, Indenture Trustee and Issuer in effecting the
termination of the responsibilities and rights of the predecessor Servicer under
this Agreement, including the transfer to the Successor Servicer for
administration by it of all cash amounts that shall at the time be held by the
predecessor Servicer for deposit, or shall thereafter be received by it with
respect to a Receivable. Servicer shall promptly transfer its electronic records
relating to the Receivables to the Successor Servicer in such electronic form as
the Successor Servicer may reasonably request and shall promptly transfer to the
Successor Servicer all other records, correspondence and documents necessary for
the continued servicing of the Receivables in the manner and at such times as
the Successor Servicer shall reasonably request. All reasonable costs and
expenses (including attorneys' fees) incurred in connection with transferring
the Receivable Files to the Successor Servicer and amending this Agreement to
reflect such succession as Servicer pursuant to this Section shall be paid by
the predecessor Servicer upon presentation of reasonable documentation of such
costs and expenses. Upon receipt of notice of the occurrence of a Servicer
Termination Event, Indenture Trustee shall give notice thereof to the Rating
Agencies.
SECTION 8.2. Appointment of Successor. (a) Upon Servicer's receipt of
notice of termination, pursuant to Section 8.1 or Servicer's resignation (if and
to the extent permitted in accordance with the terms of this Agreement), the
predecessor Servicer shall continue to perform its functions as Servicer under
this Agreement, in the case of termination, only until the date specified in
such termination notice or, if no such date is specified in a notice of
termination, until receipt of such notice and, in the case of resignation, until
the earlier of (i) the date 45 days from the delivery to Issuer and Indenture
Trustee of written notice of such resignation (or written confirmation of such
notice) in accordance with the terms of this Agreement and (ii) the date upon
which the predecessor Servicer shall become unable to act as Servicer, as
specified in the notice of resignation and accompanying Opinion of Counsel. In
the event of Servicer's termination or resignation hereunder, Indenture Trustee
shall appoint a Successor Servicer, and the Successor Servicer shall accept its
appointment by a written assumption in form acceptable to Issuer and Indenture
Trustee. In the event that a Successor Servicer has not been appointed at the
time when the predecessor Servicer has ceased to act as Servicer in accordance
with this Section, Indenture Trustee without further action shall automatically
be appointed the Successor Servicer
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and Indenture Trustee shall be entitled to the Servicing Fee. Notwithstanding
the above, Indenture Trustee shall, if it shall be unwilling or unable so to
act, appoint or petition a court of competent jurisdiction to appoint, any
established institution, having a net worth of not less than $50,000,000 and
whose regular business shall include the servicing of motor vehicle receivables,
as the successor to Servicer under this Agreement; provided, that the
appointment of any such Successor Servicer will not result in the withdrawal or
reduction of the outstanding rating assigned to the Certificates or Notes by any
Rating Agency.
(b) Upon appointment, the Successor Servicer (including Indenture
Trustee acting as Successor Servicer) shall be the successor in all respects to
the predecessor Servicer and shall be subject to all the responsibilities,
duties and liabilities arising thereafter relating thereto placed on the
predecessor Servicer and shall be entitled to the Servicing Fee and all the
rights granted to the predecessor Servicer by the terms and provisions of this
Agreement. No Successor Servicer shall be liable for any acts or omissions of
any predecessor Servicer.
(c) A transfer of servicing hereunder shall not affect the rights and
duties of the parties hereunder (including the obligations and indemnities of
Seller pursuant to Sections 3.3, 4.3, 6.1 and 6.3 or, with respect to
obligations and indemnities arising prior to, or concurrently with, a transfer
of servicing hereunder, the predecessor Servicer pursuant to Section 4.7, 7.1 or
7.2) other than those relating to the management, administration, servicing,
custody or collection of the Receivables and the other rights and properties
included in the Owner Trust Estate. The Successor Servicer shall, upon its
appointment pursuant to Section 8.2 and as part of its duties and
responsibilities under this Agreement, promptly take all action it deems
necessary or appropriate so that the predecessor Servicer (in whatever capacity)
is paid or reimbursed all amounts it is entitled to receive under this Agreement
on each Distribution Date subsequent to the date on which it is terminated as
Servicer hereunder. Without limiting the generality of the foregoing, the
predecessor Servicer will be entitled to receive all accrued and unpaid
Servicing Fees through and including the effective date of the termination of
the predecessor Servicer.
SECTION 8.3. Payment of Servicing Fee. If Servicer shall be replaced,
the predecessor Servicer shall be entitled to receive any accrued and unpaid
Servicing Fees through the date of the Successor Servicer's acceptance hereunder
and any Supplemental Servicing Fees accrued and unpaid or received prior to such
date, in each case, in accordance with Section 4.8.
SECTION 8.4. Notification to Noteholders and Certificateholders. Upon
any termination of, or appointment of a successor to, Servicer pursuant to this
Article VIII, Issuer shall give prompt written notice thereof to
Certificateholders and Indenture Trustee shall give prompt written notice
thereof to Noteholders subject to the Rating Agency Condition.
SECTION 8.5. Waiver of Past Defaults. The Holders of Notes evidencing
not less than a majority of the Outstanding Amount of the Notes (or the Holders
of Certificates evidencing not less than a majority of the outstanding
Certificate Balance, as applicable, in the case of any default which does not
adversely affect Indenture Trustee or the Noteholders) may, on behalf of all
Noteholders and Certificateholders, waive in writing any default by Servicer in
the performance of its obligations hereunder and its consequences, except a
default in making any required deposits to any of the Trust Accounts in
accordance with this Agreement. Upon any such waiver of a past default, such
default shall cease to exist, and any Servicer Termination
33
Event arising therefrom shall be deemed to have been remedied for every purpose
of this Agreement. No such waiver shall extend to any subsequent or other
default or impair any right consequent thereto.
ARTICLE IX. TERMINATION.
SECTION 9.1. Optional Purchase of All Receivables; Termination Notice.
(a) On the last day of any Collection Period immediately preceding a
Determination Date as of which the then outstanding Pool Balance is [10]% or
less of the Original Pool Balance, Seller shall have the option to purchase the
Owner Trust Estate, other than the Trust Accounts, and the Certificate
Distribution Account and any funds or investments therein. To exercise such
option, Seller shall deposit pursuant to Section 5.4 in the Collection Account
an amount which, when added to the amounts on deposit in the Collection Account
for such Distribution Date, equals the sum of (a) the unpaid principal amount of
the then outstanding Class B Notes, plus accrued and unpaid interest thereon,
plus (b) the Certificate Balance plus accrued and unpaid interest thereon. The
Class B Notes and the Certificates will be redeemed concurrently therewith.
(b) Following the satisfaction and discharge of the Indenture and the
payment in full of the principal of and interest on the Notes, the
Certificateholders will succeed to the rights of the Noteholders hereunder.
(c) Notice of any termination of Issuer shall be given by Servicer to
Issuer, Indenture Trustee and the Rating Agencies as soon as practicable after
Servicer has received notice thereof.
ARTICLE X. MISCELLANEOUS PROVISIONS.
SECTION 10.1. Amendment. (a) This Agreement may be amended by Seller,
Servicer, Issuer and Indenture Trustee (which consent may not be unreasonably
withheld), but without the consent of any of the Noteholders or the
Certificateholders:
(i) to cure any ambiguity or defect, to correct or supplement
any provisions in this Agreement or for the purpose of adding any
provisions to or changing in any manner or eliminating any of the
provisions in this Agreement or of modifying in any manner the rights
of the Noteholders or the Certificateholders; provided that such action
shall not, as evidenced by an Opinion of Counsel delivered to Issuer
and Indenture Trustee, adversely affect in any material respect the
interests of any Noteholder or Certificateholder; and
(ii) [to add, modify or eliminate such provisions as may be
necessary or advisable in order to enable (a) the transfer to Issuer of
all or any portion of the Receivables to be derecognized under
generally accepted accounting principles ("GAAP") by Seller to Issuer,
(b) Issuer to avoid becoming a member of Seller's consolidated group
under GAAP or (c) the Seller, any Seller Affiliate or any of their
Affiliates to otherwise comply with or obtain more favorable treatment
under any law or regulation or any accounting rule or principle; it
being a condition to any such amendment that each Rating Agency will
have notified the Seller, the Servicer, the Indenture Trustee and the
Issuer in writing that the amendment will not result in a
34
reduction or withdrawal of the rating of any outstanding Notes or
Certificates with respect to which it is a Rating Agency].
(b) This Agreement may also be amended from time to time by Seller,
Servicer, Issuer and Indenture Trustee, with the consent of the Holders of Notes
evidencing not less than a majority of the Outstanding Amount of the Notes and
the consent of the Holders of Certificates evidencing not less than a majority
of the Certificate Balance for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement or
of modifying in any manner the rights of the Noteholders or the
Certificateholders; provided that no such amendment shall (i) increase or reduce
in any manner the amount of, or accelerate or delay the timing of, collections
of payments on Receivables or distributions that shall be required to be made
for the benefit of the Noteholders or the Certificateholders or (ii) reduce the
aforesaid percentage of the Outstanding Amount of the Notes and the Certificate
Balance, the Holders of which are required to consent to any such amendment,
without the consent of the Holders of all the outstanding Notes and the Holders
of all the outstanding Certificates of each class affected thereby.
(c) Prior to the execution of any such amendment or consent, Servicer
shall furnish written notification of the substance of such amendment or consent
to each Rating Agency. Promptly after the execution of any such amendment or
consent, Servicer shall furnish written notification of the substance of such
amendment or consent to each Noteholder and Certificateholder.
(d) It shall not be necessary for the consent of Certificateholders or
Noteholders pursuant to this Section to approve the particular form of any
proposed amendment or consent, but it shall be sufficient if such consent shall
approve the substance thereof.
(e) Prior to the execution of any amendment to this Agreement, Issuer
and Indenture Trustee shall be entitled to receive and conclusively rely upon an
Opinion of Counsel stating that the execution of such amendment is authorized or
permitted by this Agreement and that all conditions precedent to the execution
and delivery of such amendment have been satisfied and the Opinion of Counsel
referred to in Section 10.2(i)(1) has been delivered. Issuer and Indenture
Trustee may, but shall not be obligated to, enter into any such amendment which
affects Issuer's or Indenture Trustee's, as applicable, own rights, duties or
immunities under this Agreement or otherwise.
SECTION 10.2. Protection of Title to Trust Property. (a) Seller shall
execute and file such financing statements and cause to be executed and filed
such continuation statements, all in such manner and in such places as may be
required by law fully to preserve, maintain and protect the interest of Issuer
and the interests of Indenture Trustee in the Receivables and the proceeds
thereof. Seller shall deliver (or cause to be delivered) to Issuer and Indenture
Trustee file-stamped copies of, or filing receipts for, any document filed as
provided above, as soon as available following such filing.
(b) Neither Seller nor Servicer shall change its name, identity or
corporate structure in any manner that would, could or might make any financing
statement or continuation statement filed in accordance with paragraph (a) above
seriously misleading within the meaning
35
of Section 9-402(7) of the UCC, unless it shall have given Issuer and Indenture
Trustee at least five days' prior written notice thereof and shall have promptly
filed appropriate amendments to all previously filed financing statements or
continuation statements.
(c) Each of Seller and Servicer shall have an obligation to give Issuer
and Indenture Trustee at least 60 days' prior written notice of any relocation
of its principal executive office if, as a result of such relocation, the
applicable provisions of the UCC would require the filing of any amendment of
any previously filed financing or continuation statement or of any new financing
statement and shall promptly file any such amendment or new financing statement.
Servicer shall at all times maintain each office from which it shall service
Receivables, and its principal executive office, within the United States of
America.
(d) Servicer shall maintain accounts and records as to each Receivable
accurately and in sufficient detail to permit (i) the reader thereof to know at
any time the status of such Receivable, including payments and recoveries made
and payments owing (and the nature of each) and (ii) reconciliation between
payments or recoveries on (or with respect to) each Receivable and the amounts
from time to time deposited in the Collection Account in respect of such
Receivable.
(e) Servicer shall maintain its computer systems so that, from and
after the time of sale under this Agreement of the Receivables, Servicer's
master computer records (including any backup archives) that refer to a
Receivable shall indicate clearly the interest of Issuer and Indenture Trustee
in such Receivable and that such Receivable is owned by Issuer and has been
pledged to Indenture Trustee pursuant to the Indenture. Indication of Issuer's
and Indenture Trustee's interest in a Receivable shall be deleted from or
modified on Servicer's computer systems when, and only when, the related
Receivable shall have been paid in full or repurchased by Seller or purchased by
Servicer.
(f) If at any xxxx Xxxxxx or Servicer shall propose to sell, grant a
security interest in or otherwise transfer any interest in automotive
receivables to any prospective purchaser, lender or other transferee, Servicer
shall give to such prospective purchaser, lender or other transferee computer
tapes, records or printouts (including any restored from backup archives) that,
if they shall refer in any manner whatsoever to any Receivable, shall indicate
clearly that such Receivable has been sold and is owned by Issuer and has been
pledged to Indenture Trustee.
(g) Servicer shall permit Indenture Trustee, Issuer and their
respective agents at any time during normal business hours to inspect, audit and
make copies of and abstracts from Servicer's records regarding any Receivable.
(h) Upon request at any time Issuer or Indenture Trustee shall have
reasonable grounds to believe that such request is necessary in connection with
the performance of its duties under this Agreement or any of the Basic
Documents, Servicer shall furnish to Issuer or to Indenture Trustee, within
thirty Business Days, a list of all Receivables (by contract number and name of
Obligor) then owned by Issuer, together with a reconciliation of such list to
the Schedule of Receivables and to each of Servicer's Reports furnished before
such request indicating removal of Receivables from Issuer.
36
(i) Servicer shall deliver to Issuer and Indenture Trustee:
(1) promptly after the execution and delivery of this
Agreement and of each amendment thereto, an Opinion of Counsel either
(A) stating that, in the opinion of such counsel, all financing
statements and continuation statements have been executed and filed
that are necessary fully to preserve and protect the interest of Issuer
and Indenture Trustee in the Receivables, and reciting the details of
such filings or referring to prior Opinions of Counsel in which such
details are given, or (B) stating that, in the opinion of such counsel,
no such action shall be necessary to preserve and protect such
interest; and
(2) within 120 days after the beginning of each calendar year
beginning with the first calendar year beginning more than three months
after the Cutoff Date, an Opinion of Counsel, dated as of a date during
such 120-day period, either (A) stating that, in the opinion of such
counsel, all financing statements and continuation statements have been
executed and filed that are necessary fully to preserve and protect the
interest of Issuer and Indenture Trustee in the Receivables, and
reciting the details of such filings or referring to prior Opinions of
Counsel in which such details are given, or (B) stating that, in the
opinion of such counsel, no such action shall be necessary to preserve
and protect such interest.
Each Opinion of Counsel referred to in clause (1) or (2) above shall
specify any action necessary (as of the date of such opinion) to be taken in the
following year to preserve and protect such interest.
(j) Seller shall, to the extent required by applicable law, cause the
Certificates and the Notes to be registered with the Commission pursuant to
Section 12(b) or Section 12(g) of the Exchange Act within the time periods
specified in such sections.
SECTION 10.3. Notices. All demands, notices and communications upon or
to Seller, Servicer, Issuer, Owner Trustee, Indenture Trustee or the Rating
Agencies under this Agreement shall be in writing, personally delivered, sent by
overnight courier or mailed by certified mail, return receipt requested, and
shall be deemed to have been duly given upon receipt (a) in the case of Seller,
to Volkswagen Public Auto Loan Securitization, LLC, [________________],
Attention: _________, (b) in the case of Servicer, to VW Credit, Inc., 0000
Xxxxxx Xxxx, Xxxxxx Xxxxx, Xxxxxxxx 00000, Attention: _____________, (c) in the
case of Issuer or Owner Trustee, at the Corporate Trust Office, (d) in the case
of Indenture Trustee, at the Corporate Trust Office, [(e) in the case of
Moody's, to Xxxxx'x Investors Service, Inc., to 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention of Asset Backed Securities Group, (f) in the case of
Standard & Poor's, to Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc., 00 Xxxxxxxx (00xx Xxxxx), Xxx Xxxx, Xxx Xxxx 00000,
Attention of Asset Backed Surveillance Department, and (g) in the case of Fitch,
to __________________________.] Any notice required or permitted to be mailed to
a Noteholder or Certificateholder shall be given by first class mail, postage
prepaid, at the address of such Person as shown in the Note Register or the
Certificate Register, as applicable. Any notice so mailed within the time
prescribed in this Agreement shall be conclusively presumed to have been duly
given, whether or not the Noteholder or Certificateholder shall receive such
notice.
37
SECTION 10.4. Assignment. Notwithstanding anything to the contrary
contained herein, except as provided in Sections 3.4, 4.1, 6.4 and 7.3 and as
provided in the provisions of this Agreement concerning the resignation of
Servicer, this Agreement may not be assigned by Seller or Servicer without the
prior written consent of the Issuer, Indenture Trustee, the Noteholders
evidencing not less than 66 2/3% of the Outstanding Amount of the Notes and the
Certificateholders evidencing not less than 66 2/3% of the outstanding
Certificate Balance.
SECTION 10.5. Limitations on Rights of Others. The provisions of this
Agreement are solely for the benefit of Seller, Servicer, Issuer, Owner Trustee
and for the benefit of the Certificateholders and the Noteholders, as
third-party beneficiaries, and nothing in this Agreement, whether express or
implied, shall be construed to give to any other Person any legal or equitable
right, remedy or claim in the Owner Trust Estate or under or in respect of this
Agreement or any covenants, conditions or provisions contained herein.
SECTION 10.6. 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 create or render unenforceable
such provision in any other jurisdiction.
SECTION 10.7. Separate Counterparts. This Agreement may be executed by
the parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
SECTION 10.8. Headings. The headings of the various Articles and
Sections herein are for convenience of reference only and shall not define or
limit any of the terms or provisions hereof.
SECTION 10.9. Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 10.10. Assignment to Indenture Trustee. Seller hereby
acknowledges and consents to any mortgage, pledge, assignment and grant of a
security interest by Issuer to Indenture Trustee pursuant to the Indenture for
the benefit of the Noteholders of all right, title and interest of Issuer in, to
and under the Receivables and/or the assignment of any or all of Issuer's rights
and obligations hereunder to Indenture Trustee.
SECTION 10.11. Nonpetition Covenant. Notwithstanding any prior
termination of this Agreement, Servicer and Seller shall not, prior to the date
which is one year and one day after the termination of this Agreement with
respect to Issuer, acquiesce, petition or otherwise invoke or cause Issuer to
invoke the process of any court or government authority for the purpose of
commencing or sustaining a case against Issuer under any Federal or state
bankruptcy, insolvency or similar law or appointing a receiver, liquidator,
assignee, trustee, custodian,
38
sequestrator or other similar official of Issuer or any substantial part of its
property, or ordering the winding up or liquidation of the affairs of Issuer.
SECTION 10.12. Limitation of Liability of Owner Trustee and Indenture
Trustee. (a) Notwithstanding anything contained herein to the contrary, this
Agreement has been countersigned by _________________ not in its individual
capacity but solely in its capacity as Owner Trustee of Issuer and in no event
shall _______________________ in its individual capacity or, except as expressly
provided in the Trust Agreement, as Owner Trustee have any liability for the
representations, warranties, covenants, agreements or other obligations of
Issuer hereunder or in any of the certificates, notices or agreements delivered
pursuant hereto, as to all of which recourse shall be had solely to the assets
of Issuer. For all purposes of this Agreement, in the performance of its duties
or obligations hereunder or in the performance of any duties or obligations of
Issuer hereunder, Owner Trustee shall be subject to, and entitled to the
benefits of, the terms and provisions of Articles VI, VII and VIII of the Trust
Agreement.
(b) Notwithstanding anything contained herein to the contrary, this
Agreement has been accepted by _________________ not in its individual capacity
but solely as Indenture Trustee and in no event shall _________________ have any
liability for the representations, warranties, covenants, agreements or other
obligations of Issuer hereunder or in any of the certificates, notices or
agreements delivered pursuant hereto, as to all of which recourse shall be had
solely to the assets of Issuer.
SECTION 10.13. Further Assurances. Seller and the Servicer agree to do
and perform, from time to time, any and all acts and to execute any and all
further instruments required or reasonably requested by Issuer or Indenture
Trustee more fully to effect the purposes of this Agreement, including, without
limitation, the execution of any financing statements or continuation statements
relating to the Receivables for filing under the provisions of the UCC of any
applicable jurisdiction.
SECTION 10.14. No Waiver; Cumulative Remedies. No failure to exercise
and no delay in exercising, on the part of the Issuer, Owner Trustee, Indenture
Trustee, the Noteholders or the Certificateholders, any right, remedy, power or
privilege hereunder, shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, remedy, power or privilege hereunder preclude any
other or further exercise thereof or the exercise of any other right, remedy,
power or privilege. The rights, remedies, powers and privileges therein provided
are cumulative and not exhaustive of any rights, remedies, powers and privileges
provided by law.
39
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their respective duly authorized officers as of
the day and year first above written.
VOLKSWAGEN AUTO LOAN ENHANCED
[TRUST][LLC] 200_-_
[By:_________________________, not in its
individual capacity, but solely as
Issuer]
By:
--------------------------------------
Name:
Title:
VOLKSWAGEN PUBLIC AUTO LOAN
SECURITIZATION, LLC,
Seller
By:
--------------------------------------
Name:
Title:
VW CREDIT, INC., Servicer,
By:
--------------------------------------
Name:
Title:
______________________, not in its
individual capacity but solely as
Indenture Trustee,
By:
--------------------------------------
Name:
Title:
S-1
SCHEDULE A
(DELIVERED ON DISK TO TRUSTEES)
Schedule A-1
SCHEDULE B
LOCATION OF RECEIVABLES FILES
The Receivables sold by each Seller Affiliate to Seller and sold by
Seller to Issuer are located at the offices of such Seller Affiliate listed
below.
Schedule B-1
EXHIBIT A
FORM OF SERVICER'S REPORT
Exhibit A-1
APPENDIX A
DEFINITIONS
"Act" is defined in Section 11.3(a) of the Indenture.
"Actuarial Receivable" means a Receivable that provides for (i)
amortization of the loan over a series of fixed level payment monthly
installments and (ii) each monthly installment, including the monthly
installment representing the final payment on the Receivable, to consist of an
amount of interest equal to 1/12 of the Contract Rate of the loan multiplied by
the unpaid principal balance of the loan, and an amount of principal equal to
the remainder of the monthly installment.
"Additional Servicing" means, for each Distribution Date, an amount
equal to the lesser of (i) the amount by which (A) the aggregate amount of the
Servicing Fee for such Distribution Date and all prior Distribution Dates
exceeds (B) the aggregate amount of Additional Servicing paid to the Servicer on
all prior Distribution Dates and (ii) the amount, if any, by which (A) the sum
of Available Interest and Available Principal for such Distribution Date exceed
(B) the sum, without duplication of (x) the Servicing Fee paid on such
Distribution Date with respect to the related Collection Period and any accrued
and unpaid Servicing Fee for prior Collection Periods, (y) all amounts required
to be distributed to the Noteholders and the Certificateholders on such
Distribution Date, and (z) the amount, if any, deposited in the Reserve Account
on such Distribution Date.
"Administration Agreement" means the Administration Agreement among VW
Credit, as Administrator, Volkswagen Auto Loan Enhanced [Trust] [LLC] 200_-_, as
Issuer, and _____________, as Indenture Trustee, as the same may be amended and
supplemented from time to time.
"Administration Fee" is defined in Section 4 of the Administration
Agreement.
"Administrator" means VW Credit and each successor Administrator.
"Affiliate" means, with respect to any specified Person, any other
Person controlling, controlled by or under common control with such specified
Person. For the purposes of this definition, "control" when used with respect to
any specified Person means the power to direct the management and policies of
such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing. A Person shall not be
deemed to be an Affiliate of any specified Person solely because such other
Person has the contractual right or obligation to manage such specified Person
or act as servicer with respect to the financial assets of such specified Person
unless such other Person controls the specified Person through equity ownership
or otherwise.
"Authenticating Agent" is defined in Section 2.13 of the Indenture.
"Authorized Officer" means, with respect to Issuer and Servicer, any
officer of Owner Trustee or Servicer, as
Appendix A-1
applicable, who is authorized to act for Owner Trustee or Servicer, as
applicable, in matters relating to Issuer and who is identified on the list of
Authorized Officers delivered by each of Owner Trustee and Servicer to Indenture
Trustee on the Closing Date (as such list may be modified or supplemented from
time to time thereafter).
"Available Interest" means, for any Distribution Date, the sum of the
following amounts for the related Collection Period: (a) that portion of the
Collections on the Receivables received during such Collection Period that is
allocable to interest in accordance with Servicer's customary servicing
procedures, (b) all Liquidation Proceeds received during the related Collection
Period and (c) the Purchase Amounts, to the extent allocable to accrued
interest, of all Receivables that are purchased by Servicer as of the last day
of the related Collection Period. "Available Interest" for any Distribution Date
shall exclude all payments and proceeds of any Receivables the Purchase Amount
of which has been distributed on a prior Distribution Date.
"Available Principal" means, for any Distribution Date, the sum of the
following amounts with respect to the related Collection Period: (a) that
portion of all Collections on the Receivables received during such Collection
Period that is allocable to principal in accordance with Servicer's customary
servicing procedures; and (b) the Purchase Amounts, to the extent attributable
to principal, of all Receivables purchased by Seller or Servicer as of the last
day of the related Collection Period. "Available Principal" on any Distribution
Date shall exclude all payments and proceeds of any Receivables the Purchase
Amount of which has been distributed on a prior Distribution Date.
"Bank Regulatory Authorities" means the Federal Reserve Board, the
Federal Deposit Insurance Corporation and Office of the Comptroller of Currency.
"Basic Documents" means the Purchase Agreement, the Indenture, the
Depository Agreements, the
Sale and Servicing Agreement, the Trust Agreement,
the Administration Agreement, the Notes, [the Certificates] and other documents
and certificates delivered in connection therewith.
"Benefit Plan" is defined in Section 11.12 of the Trust Agreement.
"Book-Entry Certificate" means a beneficial interest in the
Certificates, ownership of which shall be evidenced and transfers of which shall
be made, through book entries by a Clearing Agency as described in Section 3.11
of the Trust Agreement.
"Book-Entry Note" means a beneficial interest in the Notes, ownership
and transfers of which shall be made through book entries by a Clearing Agency
as described in Section 2.10 of the Indenture.
"Business Day" means a day that is not a Saturday or a Sunday and that
in the States of
New York, Michigan and the State in which the Corporate Trust
Office is located is neither a legal holiday nor a day on which banking
institutions are authorized by law, regulation or executive order to be closed.
"Certificate" means a certificate evidencing the beneficial interest of
a Certificateholder in the Trust, substantially in the form of Exhibit A to the
Trust Agreement.
Appendix A-2
"Certificate Account Property" means the Certificate Distribution
Account, all amounts and investments held from time to time therein (whether in
the form of deposit account, Physical Property, book-entry securities,
uncertificated securities or otherwise), and all proceeds of the foregoing.
"Certificate Balance" equals, initially, $__________ and, thereafter,
equals the initial Certificate Balance, reduced by all amounts allocable to
principal previously distributed to Certificateholders.
"Certificate Depository Agreement" means the agreement among the Trust,
Owner Trustee, Servicer and The Depository Trust Company, as the initial
Clearing Agency, dated as of the Closing Date, relating to the Certificates, as
the same may be amended and supplemented from time to time.
"Certificate Distribution Account" is defined in Section 5.1 of the
Trust Agreement.
"Certificate Pool Factor" as of the close of business on a Distribution
Date means a seven- digit decimal figure equal to the Certificate Balance (after
giving effect to distributions made on such date) divided by the initial
Certificate Balance. The Certificate Pool Factor will be 1.0000000 as of the
Cutoff Date; thereafter, the Certificate Pool Factor will decline to reflect
reductions in the Certificate Balance.
"Certificate Rate" means ____% per annum (computed on the basis of a
360-day year of twelve 30 day months).
"Certificate Register" and "Certificate Registrar" means the register
mentioned and the registrar appointed pursuant to Section 3.4 of the Trust
Agreement.
"Certificateholder" means the Person in whose name a Certificate is
registered on the Certificate Register.
"Certificateholders' Interest Carryover Shortfall" means, for any
Distribution Date, the excess of the Certificateholders' Monthly Interest
Distributable Amount for the preceding Distribution Date and any outstanding
Certificateholders' Interest Carryover Shortfall on such preceding Distribution
Date, over the amount in respect of interest at the Certificate Rate that is
actually deposited in the Certificate Distribution Account on such preceding
Distribution Date, plus interest on such excess, to the extent permitted by law,
in an amount equal to the product of one-twelfth multiplied by the Certificate
Rate multiplied by the amount of such excess.
"Certificateholders' Interest Distributable Amount" means, for any
Distribution Date, the sum of the Certificateholders' Monthly Interest
Distributable Amount for such Distribution Date and the Certificateholders'
Interest Carryover Shortfall for such Distribution Date.
"Certificateholders' Monthly Interest Distributable Amount" means, for
any Distribution Date, an amount equal to one-twelfth (or the actual number of
days from and including the Closing Date to but excluding __________________,
200[_] divided by 360, for the initial Distribution Date) of the Certificate
Rate multiplied by the Certificate Balance as of the close of business on the
immediately preceding Distribution Date, after giving effect to all payments of
Appendix A-3
principal to the Certificateholders on or prior to such Distribution Date (or,
in the case of the first Distribution Date, the Certificate Balance on the
Closing Date).
"Certificateholders' Monthly Principal Distributable Amount" means, for
any Distribution Date, the Certificateholders' Percentage of the Principal
Distribution Amount or, for any Distribution Date on or after the Distribution
Date on which the outstanding principal balance of the Class A-2 Notes is
reduced to zero, 100% of the Principal Distribution Amount (less any amount
required on the first such Distribution Date to reduce the outstanding principal
balance of the Class A-2 Notes to zero, which shall be deposited into the Note
Distribution Account).
"Certificateholders' Percentage" means 100% minus the Noteholders'
Percentage.
"Certificateholders' Principal Carryover Shortfall" means, as of the
close of business on any Distribution Date, the excess of the
Certificateholders' Monthly Principal Distributable Amount and any outstanding
Certificateholders' Principal Carryover Shortfall from the preceding
Distribution Date, over the amount in respect of principal that is actually
deposited in the Certificate Distribution Account on such current Distribution
Date.
"Certificateholders' Principal Distributable Amount" means, for any
Distribution Date, the sum of the Certificateholders' Monthly Principal
Distributable Amount for such Distribution Date and the Certificateholders'
Principal Carryover Shortfall as of the close of the preceding Distribution
Date; provided that the Certificateholders' Principal Distributable Amount shall
not exceed the Certificate Balance. In addition, on the Final Scheduled
Distribution Date for the Certificates, the Certificateholders Principal
Distributable Amount will include, to the extent not included under the
preceding sentence, the amount that is necessary (after giving effect to the
other amounts to be deposited in the Certificate Distribution Account on such
Distribution Date and allocable to principal) to reduce the Certificate Balance
to zero.
"Class A-1 Interest Rate" means ______% per annum.
"Class A-1 Noteholders' Interest Carryover Shortfall" means, for any
Distribution Date, the excess of the Class A-1 Noteholders' Monthly Interest
Distributable Amount for the preceding Distribution Date and any outstanding
Class A-1 Noteholders' Interest Carryover Shortfall on such preceding
Distribution Date, over the amount in respect of interest on the Class A-1 Notes
that was actually paid to holders of the Class A-1 Notes on the preceding
Distribution Date, plus interest on the amount of interest due but not paid to
Holders of the Class A-1 Notes on the preceding Distribution Date, to the extent
permitted by law, in an amount equal to the product of (i) the quotient of the
number of days elapsed in the related Interest Period divided by 360 multiplied
by (ii) the Class A-1 Interest Rate multiplied by (iii) the amount of such
interest due but not paid in respect of the Class A-1 Notes.
"Class A-1 Noteholders' Interest Distributable Amount" means, for any
Distribution Date, the sum of (a) the Class A-1 Noteholders' Monthly Interest
Distributable Amount and (b) the Class A-1 Noteholders' Interest Carryover
Shortfall, in each case for such Distribution Date.
"Class A-1 Noteholders' Monthly Interest Distributable Amount" means,
for any Distribution Date, the product of (i) the quotient of the number of days
elapsed during the related Interest Period divided by 360 multiplied by (ii) the
Class A-1 Interest Rate multiplied by (iii)
Appendix A-4
the Outstanding Amount of the Class A-1 Notes on the immediately preceding
Distribution Date after giving effect to all payments of principal to the
Holders of the Class A-1 Notes on or prior to such Distribution Date (or, in the
case of the first Distribution Date, the Outstanding Amount of the Class A-1
Notes on the Closing Date).
"Class A-1 Notes" means the Class A-1 _____% Asset Backed Notes,
substantially in the form of Exhibit D to the Indenture.
"Class A-2 Interest Rate" means _____% per annum.
"Class A-2 Noteholders' Interest Carryover Shortfall" means, for any
Distribution Date, the excess of the Class A-2 Noteholders' Monthly Interest
Distributable Amount for the preceding Distribution Date and any outstanding
Class A-2 Noteholders' Interest Carryover Shortfall on such preceding
Distribution Date, over the amount in respect of interest on the Class A-2 Notes
that was actually paid to holders of the Class A-2 Notes on the preceding
Distribution Date, plus interest on the amount of interest due but not paid to
Holders of the Class A-2 Notes on the preceding Distribution Date, to the extent
permitted by law, in an amount equal to the product of one-twelfth multiplied by
the Class A-2 Interest Rate multiplied by the amount of such interest due but
not paid in respect of the Class A-2 Notes.
"Class A-2 Noteholders' Interest Distributable Amount" means, for any
Distribution Date, the sum of (a) the Class A-2 Noteholders' Monthly Interest
Distributable Amount and (b) the Class A-2 Noteholders' Interest Carryover
Shortfall, in each case for such Distribution Date.
"Class A-2 Noteholders' Monthly Interest Distributable Amount" means,
for any Distribution Date, the product of one-twelfth (or, in the case of the
first Distribution Date the actual number of days elapsed from and including the
Closing Date to but excluding _________________, 200[_] divided by 360)
multiplied by the Class A-2 Interest Rate multiplied by the Outstanding Amount
of the Class A-2 Notes on the immediately preceding Distribution Date after
giving effect to all payments of principal to the Holders of the Class A-2 Notes
on or prior to such immediately preceding Distribution Date (or, in the case of
the first Distribution Date, the Outstanding Amount of the Class A-2 Notes on
the Closing Date).
"Class A-2 Notes" means the Class A-2 ____% Asset Backed Notes,
substantially in the form of Exhibit E to the Indenture.
"Clearing Agency" means an organization registered as a "clearing
agency" pursuant to Section 17A of the Exchange Act.
"Clearing Agency Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time a Clearing
Agency effects book-entry transfers and pledges of securities deposited with the
Clearing Agency.
"Closing Date" means _____ __, 200[_].
"Code" means the Internal Revenue Code of 1986, as amended, and
Treasury Regulations promulgated thereunder.
Appendix A-5
"Collateral" is defined in the Granting Clause of the Indenture.
"Collection Account" means the account designated as such, established
and maintained pursuant to Section 5.1 of the
Sale and Servicing Agreement.
"Collection Period" means, (a) in the case of the initial Collection
Period, the period from [but not including] the Cutoff Date to and including
___________ __, 200[_] and (b) thereafter, each calendar month during the term
of the
Sale and Servicing Agreement. With respect to any Determination Date,
Deposit Date or Distribution Date, the "related Collection Period" means the
Collection Period preceding the month in which such Determination Date, Deposit
Date or Distribution Date occurs.
"Collections" means all collections on the Receivables and any proceeds
from Insurance Policies and lender's single interest insurance policies.
"Commission" means the Securities and Exchange Commission.
"Contract Rate" means, with respect to a Receivable, the rate per annum
of interest charged on the outstanding principal balance of such Receivable.
"Corporate Trust Office" means:
(a) as used in the Indenture, or otherwise with respect to
Indenture Trustee, the principal office of Indenture Trustee at which
at any particular time its corporate trust business shall be
administered which office at date of the execution of the Indenture is
located at ____________________________, Attention: ________________,
Telephone: _____________; Facsimile: _______________ or at such other
address as Indenture Trustee may designate from time to time by notice
to the Noteholders, Servicer and Issuer, or the principal corporate
trust office of any successor Indenture Trustee (the address of which
the successor Indenture Trustee will notify the Noteholders and
Issuer); and
(b) as used in the Trust Agreement, or otherwise with respect
to Owner Trustee, the principal corporate trust office of Owner Trustee
located at _____________; or at such other address as Owner Trustee may
designate by notice to the Certificateholders and Depositor, or the
principal corporate trust office of any successor Owner Trustee (the
address of which the successor owner Trustee will notify the
Certificateholders and Depositor).
"Custodian" means Servicer in its capacity as agent of Issuer, as
custodian of the Receivable Files and any Seller Affiliate acting as agent for
Servicer for the purpose of maintaining custody of the Receivables Files.
"Cutoff Date" means the close of business on __________, 200[_].
"Cutoff Date Principal Balance" means, with respect to any Receivable,
the Initial Principal Balance of such Receivable minus the sum of the portion of
all payments received
Appendix A-6
under such Receivable from or on behalf of the related Obligor on or prior to
the Cutoff Date and allocable to principal in accordance with the terms of the
Receivable.
"Dealer" means, with respect to any Receivable, the seller of the
related Financed Vehicle.
"Dealer Agreement" means an agreement between an Originator and a
Dealer pursuant to which such Originator acquires Motor Vehicle Loans from the
Dealer or gives such Dealer the right to induce persons to apply to such
Originator for loans in connection with the retail sale of Motor Vehicles by
such Dealer.
"Dealer Recourse" means, with respect to any Dealer, any rights and
remedies against such Dealer under the related Dealer Agreement (other than with
respect to any breach of representation or warranty thereunder) with respect to
credit losses on a Receivable secured by a Financed Vehicle sold by such Dealer.
"Default" means any occurrence that is, or with notice or the lapse of
time or both would become, an Event of Default.
"Defaulted Receivable" means, with respect to any Collection Period, a
Receivable (other than a Purchased Receivable) which Servicer has determined to
charge off during such Collection Period in accordance with its customary
servicing practices; provided that any Receivable which Seller or Servicer is
obligated to repurchase or purchase shall be deemed to have become a Defaulted
Receivable during a Collection Period if Seller or Servicer fails to deposit the
related Purchase Amount on the related Deposit Date when due.
"Definitive Notes" is defined in Section 2.10 of the Indenture.
"Definitive Certificates" means either or both (as the context
requires) of (a) Certificates issued in certificated, fully registered form as
provided in Section 3.11 of the Trust Agreement and (b) Certificates issued in
certificated, fully registered form as provided in Section 3.13 of the Trust
Agreement.
"Delivery" when used with respect to Trust Account Property means:
(a) with respect to bankers' acceptances, commercial paper,
negotiable certificates of deposit and other obligations that
constitute "instruments" as defined in Section 9-102(47) of the UCC and
are susceptible of physical delivery, transfer thereof to the Indenture
Trustee or its nominee or custodian by physical delivery to the
Indenture Trustee or its nominee or custodian endorsed to, or
registered in the name of, the Indenture Trustee or its nominee or
custodian or endorsed in blank, and, with respect to a "certificated
security" (as defined in Section 8-102 of the UCC) transfer thereof (i)
by delivery of such certificated security endorsed to, or registered in
the transfer thereof (i) by delivery of such certificated security
endorsed to, or registered in the name of, the Indenture Trustee or its
nominee or custodian to the Indenture Trustee or its nominee or
custodian, or to another person, other than a "securities intermediary"
(as defined in Section 8-102(14) of the UCC), who acquires possession
of the certificated security on behalf of the Indenture Trustee or its
nominee or custodian or, having previously acquired
Appendix A-7
possession of the certificate, acknowledges that it holds for the
Indenture Trustee or its nominee or custodian or (ii) by delivery
thereof to a "securities intermediary", endorsed to the Indenture
Trustee or its nominee or custodian, and the making by such "securities
intermediary" of entries on its books and records identifying such
certificated securities as belonging to the Indenture Trustee or its
nominee or custodian and the sending by such "securities intermediary"
of a confirmation of the purchase of such certificated security by the
Indenture Trustee or its nominee or custodian, or (iii) by delivery
thereof to a "clearing corporation" (all of the foregoing, "Physical
Property"), and, in any event, any such Physical Property in registered
form shall be in the name of the Indenture Trustee or its nominee or
custodian; and such additional or alternative procedures as may
hereafter become appropriate to effect the complete transfer of
ownership of any such Trust Account Property to the Indenture Trustee
or its nominee or custodian, consistent with changes in applicable law
or regulations or the interpretation thereof;
(b) with respect to any securities issued by the U.S.
Treasury, the Federal Home Loan Mortgage Corporation or by the Federal
National Mortgage Association that is a book-entry security held
through the Federal Reserve System pursuant to Federal book-entry
regulations, the following procedures, all in accordance with
applicable law, including applicable Federal regulations and Articles 8
and 9 of the UCC: book-entry registration of such Trust Account
Property to an appropriate book-entry account maintained with a Federal
Reserve Bank by a financial intermediary which is also a "depository"
pursuant to applicable Federal regulations and issuance by such
financial intermediary of a deposit advice or other written
confirmation of such book-entry registration to the Indenture Trustee
or its nominee or custodian of the purchase by the Indenture Trustee or
its nominee or custodian of such book-entry securities; the making by
such financial intermediary of entries in its books and records
identifying such book entry security held through the Federal Reserve
System pursuant to Federal book-entry regulations as belonging to the
Indenture Trustee or its nominee or custodian and indicating that such
custodian holds such Trust Account Property solely as agent for the
Indenture Trustee or its nominee or custodian; and such additional or
alternative procedures as may hereafter become appropriate to effect
complete transfer of ownership of any such Trust Account Property to
the Indenture Trustee or its nominee or custodian, consistent with
changes in applicable law or regulations or the interpretation thereof;
and
(c) with respect to any item of Trust Account Property that is
an uncertificated security (as defined in Section 8-102(18) of the UCC)
and that is not governed by clause (b) above, (i) registration on the
books and records of the issuer thereof in the name of the Indenture
Trustee or its nominee or custodian, or (ii) registration on the books
and records of the issuer thereof in the name of another person, other
than a securities intermediary, who acknowledges that it holds such
uncertificated security for the benefit of the Indenture Trustee or its
nominee or custodian.
"Deposit Date" means, with respect to any Collection Period, the
Business Day preceding the related Distribution Date.
"Depositor" means Seller in its capacity as Depositor under the Trust
Agreement.
Appendix A-8
"Depository Agreements" mean the Certificate Depository Agreement and
the Note Depository Agreement.
"Determination Date" with respect to any Collection Period, means the
tenth day of the calendar month following such Collection Period (or, if the
tenth day is not a Business Day, the next succeeding Business Day).
"Direct Loan" means motor vehicle promissory notes and security
agreements executed by an Obligor in favor of a motor vehicle lender.
"Distribution Date" means the _____ day of each month (or, if the _____
day is not a Business Day, the next succeeding Business Day), commencing
___________ __, 200[_].
"Dollar" and the sign "$" mean lawful money of the United States.
"Eligible Deposit Account" means either (a) a segregated account with
an Eligible Institution or (b) a segregated trust account with the corporate
trust department of a depository institution organized under the laws of the
United States of America or any one of the states thereof or the District of
Columbia (or any domestic branch of a foreign bank), having corporate trust
powers and acting as trustee for funds deposited in such account, so long as the
long-term unsecured debt of such depository institution shall have a credit
rating from each Rating Agency in one of its generic rating categories which
signifies investment grade.
"Eligible Institution" means a depository institution (which may be
Servicer (or any Affiliate of Servicer) Owner Trustee or Indenture Trustee)
organized under the laws of the United States of America or any one of the
states thereof or the District of Columbia (or any domestic branch of a foreign
bank), (a) which has (i) either a long-term senior unsecured debt rating of AA
or a short-term senior unsecured debt or certificate of deposit rating of A-1+
or better by Standard & Poor's and (ii)(A) a short-term senior unsecured debt
rating of A-l or better by Standard & Poor's and (B) a short-term senior
unsecured debt rating of P-1 or better by Moody's, or any other long-term,
short- term or certificate of deposit rating acceptable to the Rating Agencies
and (b) whose deposits are insured by the Federal Deposit Insurance Corporation.
If so qualified, Servicer, any Affiliate of Servicer, Owner Trustee or Indenture
Trustee may be considered an Eligible Institution.
"Eligible Investments" shall mean any one or more of the following
types of investments:
(a) direct obligations of, and obligations fully guaranteed as
to timely payment by, the United States of America;
(b) demand deposits, time deposits or certificates of deposit
of any depository institution (including any Affiliate of Seller,
Indenture Trustee, Owner Trustee or any Affiliate of Indenture Trustee
or Owner Trustee) or trust company incorporated under the laws of the
United States of America or any state thereof or the District of
Columbia (or any domestic branch of a foreign bank) and subject to
supervision and examination by Federal or state banking or depository
institution authorities (including depository receipts issued by any
such institution or trust company as custodian with respect to any
obligation referred to in clause (a) above or a portion of such
obligation for the benefit of
Appendix A-9
the holders of such depository receipts); provided that at the time of
the investment or contractual commitment to invest therein (which shall
be deemed to be made again each time funds are reinvested following
each Distribution Date), the commercial paper or other short-term
senior unsecured debt obligations (other than such obligations the
rating of which is based on the credit of a Person other than such
depository institution or trust company) of such depository institution
or trust company shall have a credit rating from Standard & Poor's of
A-1+ and from Moody's of P-1;
(c) commercial paper (including commercial paper of any
Affiliate of Seller or Transferor) having, at the time of the
investment or contractual commitment to invest therein, a rating from
Standard & Poor's of A-1+ and from Moody's of P-1;
(d) investments in money market funds (including funds for
which Indenture Trustee or Owner Trustee or any of their respective
Affiliates or any of Seller's or Transferor's Affiliates is investment
manager or advisor) having a rating from Standard & Poor's of AAA-m or
AAAm-G and from Moody's of Aaa;
(e) bankers' acceptances issued by any depository institution
or trust company referred to in clause (b) above;
(f) repurchase obligations with respect to any security that
is a direct obligation of, or fully guaranteed by, the United States of
America or any agency or instrumentality thereof the obligations of
which are backed by the full faith and credit of the United States of
America, in either case entered into with a depository institution or
trust company (acting as principal) referred to in clause (b) above;
and
(g) any other investment with respect to which each Rating
Agency has provided written notice that such investment would not cause
such Rating Agency to downgrade or withdraw its then current rating of
any class of Notes or the Certificates.
"ERISA" is defined in Section 11.12 of the Trust Agreement.
"Event of Default" is defined in Section 5.1 of the Indenture.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Executive Officer" means, with respect to any corporation, the Chief
Executive Officer, Chief Operating Officer, Chief Financial Officer, Chief
Accounting Officer, President, Executive Vice President, any Vice President, the
Secretary or the Treasurer of such corporation; and with respect to any
partnership, any general partner thereof.
"Expenses" is defined in Section 8.2 of the Trust Agreement.
"Final Scheduled Distribution Date" means for (a) the Class A-1 Notes,
the ______________ Distribution Date, (b) the Class A-2 Notes, the _____________
Distribution Date and (c) the Certificates, the ______________ Distribution
Date.
Appendix A-10
"Final Scheduled Maturity Date" means the last day of the Collection
Period immediately preceding the Final Scheduled Distribution Date for the
Certificates.
"Financed Vehicle" means a new or used automobile or light duty truck,
together with all accessions thereto, securing an Obligor's indebtedness under
the respective Receivable.
"Fitch" means Fitch, Inc., or its successor.
"GAAP" is defined in Section 10.1 of the
Sale and Servicing Agreement.
"Grant" means mortgage, pledge, bargain, sell, warrant, alienate,
remise, release, convey, assign, transfer, create, xxxxx x xxxx upon and a
security interest in and right of set-off against, deposit, set over and confirm
pursuant to the Indenture. A Grant of the Collateral or of any other agreement
or instrument shall include all rights, powers and options (but none of the
obligations) of the Granting party thereunder, including the immediate and
continuing right to claim for, collect, receive and give receipt for principal
and interest payments in respect of the Collateral and all other moneys payable
thereunder, to give and receive notices and other communications, to make
waivers or other agreements, to exercise all rights and options, to bring
proceedings in the name of the Granting party or otherwise and generally to do
and receive anything that the Granting party is or may be entitled to do or
receive thereunder or with respect thereto. Other forms of the verb "to Grant"
shall have correlative meanings.
"Holder" means, as the context may require, a Certificateholder or a
Noteholder or both.
"Indemnified Parties" is defined in Section 8.2 of the Trust Agreement.
"Indenture" means the Indenture dated as of _________ __, 200[_],
between Issuer and Indenture Trustee, as the same may be amended and
supplemented from time to time.
"Indenture Trustee" means __________________________, not in its
individual capacity but as trustee under the Indenture, or any successor trustee
under the Indenture.
"Independent" means, when used with respect to any specified Person,
that the person (a) is in fact independent of Issuer, any other obligor upon the
Notes, Seller and any Affiliate of any of the foregoing Persons, (b) does not
have any direct financial interest or any material indirect financial interest
(other than less than 5% of the outstanding amount of any publicly traded
security) in Issuer, any such other obligor, Seller or any Affiliate of any of
the foregoing Persons and (c) is not connected with Issuer, any such other
obligor, Seller or any Affiliate of any of the foregoing Persons as an officer,
employee, promoter, underwriter, trustee, partner, director or Person performing
similar functions.
"Independent Certificate" means a certificate or opinion to be
delivered to Indenture Trustee under the circumstances described in, and
otherwise complying with, the applicable requirements of Section 11.1 of the
Indenture, made by an Independent appraiser or other expert appointed by an
Issuer Order and approved by Indenture Trustee in the exercise of reasonable
care, and such opinion or certificate shall state that the signer has read the
definition of "Independent" in the Indenture and that the signer is Independent
within the meaning thereof.
Appendix A-11
"Initial Principal Balance" means, in respect of a Receivable, the
amount advanced under the Receivable toward the purchase price of the Financed
Vehicle and related costs, including accessories, service and warranty
contracts, insurance premiums, other items customarily financed as part of
retail motor vehicle loans and/or retail installment sales contracts and other
fees charged by a Seller Affiliate or the applicable Dealer and included in the
amount to be financed, the total of which is shown as the initial principal
balance in the note and security agreement or retail installment sale contract
evidencing and securing such Receivable.
"Insolvency Event" means, for a specified Person, (a) the filing of a
decree or order for relief by a court having jurisdiction in the premises in
respect of such Person or any substantial part of its property in an involuntary
case under any applicable Federal or state bankruptcy, insolvency or other
similar law now or hereafter in effect, or appointing a receiver (including any
receiver appointed under the Financial Institutions Reform, Recovery and
Enforcement Act of 1989, as amended), liquidator, assignee, custodian, trustee,
sequestrator or similar official for such Person or for any substantial part of
its property, or ordering the winding-up or liquidation of such Person's
affairs, and such decree or order shall remain unstayed and in effect for a
period of 60 consecutive days; or (b) the commencement by such Person of a
voluntary case under any applicable Federal or state bankruptcy, insolvency or
other similar law now or hereafter in effect, or the consent by such Person to
the entry of an order for relief in an involuntary case under any such law, or
the consent by such Person to the appointment of or taking possession by a
receiver, liquidator, assignee, custodian, trustee, sequestrator or similar
official for such Person or for any substantial part of its property, or the
making by such Person of any general assignment for the benefit of creditors, or
the failure by such Person generally to pay its debts as such debts become due,
or the taking of action by such Person in furtherance of any of the foregoing.
"Insurance Policies" means, all credit life and disability insurance
policies maintained by the Obligors and all Physical Damage Insurance Policies.
"Interest Period" means, with respect to any specified Distribution
Date, the period from and including the Closing Date (in the case of the first
Distribution Date) and thereafter from and including the preceding Distribution
Date to but excluding such specified Distribution Date.
"Interest Rate" means, with respect to the (a) Class A-1 Notes, the
Class A-1 Interest Rate and (b) Class A-2 Notes, the Class A-2 Interest Rate.
"Issuer" means Volkswagen Auto Loan Enhanced [Trust] [LLC] 200_-_.
"Issuer Order" and "Issuer Request" means a written order or request
signed in the name of Issuer by any one of its Authorized Officers and delivered
to Indenture Trustee.
"Lien" means a security interest, lien, charge, pledge, preference,
participation interest or encumbrance of any kind, other than liens for taxes
not yet due and payable, mechanics' or materialmen's liens and other liens for
work, labor or materials, and any other liens that may attach by operation of
law.
"Liquidation Proceeds" means, with respect to any Receivable that has
become a Defaulted Receivable, (a) insurance proceeds received by Servicer with
respect to the Insurance Policies, (b) amounts received by Servicer in
connection with such Defaulted Receivable
Appendix A-12
pursuant to the exercise of rights under that Receivable and (c) the monies
collected by Servicer (from whatever source, including proceeds of a sale of a
Financed Vehicle, a deficiency balance recovered after the charge- off of the
related Receivable or as a result of any Dealer Recourse) on such Defaulted
Receivable net of any expenses incurred by Servicer in connection therewith and
any payments required by law to be remitted to the Obligor.
"Minimum Specified Reserve Balance" with respect to any Distribution
Date means the lesser of (i) $__________ and (ii) the aggregate outstanding
principal amount of the Notes and the Certificate Balance (after giving effect
to any distributions on the Notes and Certificates on such Distribution Date).
"Moody's" means Xxxxx'x Investors Service, Inc., or its successor.
"Motor Vehicle" means a new or used automobile or light duty truck.
"Motor Vehicle Loan" means a Direct Loan or retail installment sales
contract secured by a Motor Vehicle originated by a Seller Affiliate or another
financial institution.
"Note" means a Class A-1 Note or Class A-2 Note.
"Note Depository Agreement" means the agreement among Issuer, Servicer
and The Depository Trust Company, as the initial Clearing Agency, dated as of
the Closing Date, relating to the Notes, as the same may be amended or
supplemented from time to time.
"Note Distribution Account" means the account designated as such,
established and maintained pursuant to Section 5.1 of the
Sale and Servicing
Agreement.
"Noteholder" means the Person in whose name a Note is registered on the
Note Register.
"Note Owner" means, with respect to a Book-Entry Note, the person who
is the owner of such Book-Entry Note, as reflected on the books of the Clearing
Agency, or on the books of a Person maintaining an account with such Clearing
Agency (directly as a Clearing Agency Participant or as an indirect participant,
in each case in accordance with the rules of such Clearing Agency).
"Note Pool Factor" for each class of Notes as of the close of business
on a Distribution Date means a seven-digit decimal figure equal to the
outstanding principal balance of such class of Notes divided by the original
outstanding principal balance of such class of Notes. The Note Pool Factor for
each class of Notes will be 1.0000000 as of the Cutoff Date; thereafter, the
Note Pool Factor for each class of Notes will decline to reflect reductions in
the outstanding principal balance of such class of Notes.
"Noteholders' Distributable Amount" means, for any Distribution Date,
the sum of the Noteholders' Principal Distributable Amount and the Noteholders'
Interest Distributable Amount.
"Noteholders' Interest Distributable Amount" means, for any
Distribution Date, the sum of (a) the Class A-1 Noteholders' Interest
Distributable Amount and (b) the Class A-2 Noteholders' Interest Distributable
Amount for such Distribution Date.
Appendix A-13
"Noteholders' Monthly Principal Distributable Amount" means, for any
Distribution Date, the Noteholders' Percentage of the Principal Distribution
Amount.
"Noteholders' Percentage" means 100% until the point in time at which
the Class A-1 Notes and Class A-2 Notes have been paid in full and zero
thereafter.
"Noteholders' Principal Carryover Shortfall" means, as of the close of
business on any specified Distribution Date, the excess of the Noteholders'
Monthly Principal Distributable Amount for such Distribution Date and any
outstanding Noteholders' Principal Carryover Shortfall from the Distribution
Date preceding the specified Distribution Date over the amount in respect of
principal that is actually deposited in the Note Distribution Account on the
specified Distribution Date.
"Noteholders' Principal Distributable Amount" means, for any
Distribution Date, the sum of the Noteholder's Monthly Principal Distributable
Amount for such Distribution Date and the Noteholders' Principal Carryover
Shortfall as of the close of business on the preceding Distribution Date;
provided that the Noteholders' Principal Distributable Amount shall not exceed
the aggregate outstanding principal balance of the Notes. In addition, on the
Final Scheduled Distribution Date of each class of Notes, the principal required
to be deposited in the Note Distribution Account will include the amount
necessary (after giving effect to the other amounts to be deposited in the Note
Distribution Account on such Distribution Date and allocable to principal) to be
paid to Noteholders of such class to reduce the Outstanding Amount of such class
of Notes to zero.
"Note Register" and "Note Registrar" are defined in Section 2.4 of the
Indenture.
"Obligor" means, with respect to a Receivable, the borrower or
co-borrowers under the related Receivable and any co-signer of the Receivable or
other Person who owes or may be primarily or secondarily liable for payments
under such Receivable.
"Officer's Certificate" means: (a) for purposes of the Indenture, a
certificate signed by any Authorized Officer of Issuer, under the circumstances
described in, and otherwise complying with, the applicable requirements of
Section 11.1 and TIA Section 314, and delivered to Indenture Trustee; and (b)
otherwise, a certificate signed by the chairman, the president, any vice
president or the treasurer of Seller or Servicer, as the case may be, and
delivered to Indenture Trustee. Unless otherwise specified, any reference in the
Indenture to an Officer's Certificate shall be to an Officer's Certificate of
any Authorized Officer of Issuer.
"Opinion of Counsel" means one or more written opinions of counsel who
may, except as otherwise expressly provided in the Indenture, be employees of or
counsel to Issuer and who shall be satisfactory to Issuer, Owner Trustee or
Indenture Trustee, as applicable, and which opinion or opinions shall be
addressed to Issuer, Owner Trustee, or Indenture Trustee, as applicable and
shall be in form and substance satisfactory to the Issuer, Owner Trustee, and
Indenture Trustee, as applicable.
"Original Pool Balance" means the Pool Balance as of the Cutoff Date,
which is $____________.
Appendix A-14
"Originator" means, with respect to any Direct Loan or retail
installment sales contract, the Seller Affiliate that was the lender with
respect to such Direct Loan or that acquired such Direct Loan or retail
installment sales contract from a Dealer or other Person.
"Outstanding" means, as of the date of determination, all Notes
theretofore authenticated and delivered under the Indenture except:
(a) Notes theretofore canceled by Note Registrar or delivered to Note
Registrar for cancellation;
(b) Notes or portions thereof the payment for which money in the
necessary amount has been theretofore deposited with Indenture Trustee or any
Paying Agent in trust for the Holders of such Notes (provided that if such Notes
are to be redeemed, notice of such redemption has been duly given pursuant to
the Indenture or provision therefor, satisfactory to Indenture Trustee); and
(c) Notes in exchange for or in lieu of other Notes which have been
authenticated and delivered pursuant to the Indenture unless proof satisfactory
to Indenture Trustee is presented that any such Notes are held by a bona fide
purchaser; provided that in determining whether the Holders of the requisite
Outstanding Amount of the Notes have given any request, demand, authorization,
direction, notice, consent or waiver hereunder or under any Basic Document,
Notes owned by Issuer, any other obligor upon the Notes, Seller or any Affiliate
of any of the foregoing Persons shall be disregarded and deemed not to be
Outstanding, except that, in determining whether Indenture Trustee shall be
protected in relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only Notes that a Responsible Officer of Indenture
Trustee either actually knows to be so owned or has received written notice
thereof shall be so disregarded. Notes so owned that have been pledged in good
faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of Indenture Trustee the pledgee's right so to act with respect to
such Notes and that the pledgee is not Issuer, any other obligor upon the Notes,
Seller or any Affiliate of any of the foregoing Persons.
"Outstanding Amount" means the aggregate principal amount of all Notes,
or class of Notes, as applicable, Outstanding at the date of determination.
"Owner" means each Person who is the beneficial owner of a Book-Entry
Certificate as reflected in the records of the Clearing Agency or if a Clearing
Agency Participant is not the Owner, then as reflected in records of a Person
maintaining an account with such Clearing Agency (directly or indirectly, in
accordance with the rules of such Clearing Agency).
"Owner Trust Estate" means all right, title and interest of Issuer in
and to the property and rights assigned to Issuer pursuant to Article II of the
Sale and Servicing Agreement, all funds on deposit from time to time in the
Trust Accounts and the Certificate Distribution Account and all other property
of Issuer from time to time, including any rights of Owner Trustee and Issuer
pursuant to the
Sale and Servicing Agreement.
"Owner Trustee" means ___________________, a Delaware banking
corporation, not in its individual capacity but solely as owner trustee under
the Trust Agreement, and any successor Owner Trustee hereunder.
Appendix A-15
"Payaheads" means early payments by or on behalf of Obligors on
Precomputed Receivables which, in accordance with the Servicer's customary
practices, do not constitute scheduled payments or full prepayments and are
applied to principal and interest in a subsequent period.
"Payahead Account" means the account designated as such, established
and maintained pursuant to Section 5.1 of the Sale and Servicing Agreement.
"Paying Agent" means: (a) when used in the Indenture or otherwise with
respect to the Notes, Indenture Trustee or any other Person that meets the
eligibility standards for Indenture Trustee specified in Section 6.11 of the
Indenture and is authorized by Issuer to make the payments to and distributions
from the Collection Account and the Note Distribution Account, including payment
of principal of or interest on the Notes on behalf of Issuer; and (b) when used
in the Trust Agreement or otherwise with respect to the Certificates, Owner
Trustee or any other paying agent or co-paying agent appointed pursuant to
Section 3.9 of the Trust Agreement.
"Person" means a legal person, including any individual, corporation,
estate, partnership, limited liability company, joint venture, association,
joint stock company, trust, unincorporated organization, or government or any
agency or political subdivision thereof, or any other entity of whatever nature.
"Physical Damage Insurance Policy" means a theft and physical damage
insurance policy maintained by the Obligor under a Receivable, providing
coverage against loss or damage to or theft of the related Financed Vehicle.
"Physical Property" is defined in the definition of "Delivery" above.
"Pool Balance" means, at any time, the aggregate Principal Balance of
the Receivables (excluding Purchased Receivables and Defaulted Receivables) at
such time.
"Precomputed Receivable" means (i) an Actuarial Receivable, (ii) a Rule
of 78's Receivable or (iii) a Sum of Periodic Balances Receivable.
"Predecessor Note" means, with respect to any particular Note, every
previous Note evidencing all or a portion of the same debt as that evidenced by
such particular Note; and, for the purpose of this definition, any Note
authenticated and delivered under Section 2.5 of the Indenture in lieu of a
mutilated, lost, destroyed or stolen Note shall be deemed to evidence the same
debt as the mutilated, lost, destroyed or stolen Note.
"Principal Balance" means, as of any time, for any Receivable, the
principal balance of such Receivable under the terms of the Receivable
determined in accordance with the Servicer's customary practices.
"Principal Distribution Amount" means, for any Distribution Date, the
sum of (a) the Available Principal for such Distribution Date, and (b) the
aggregate amount of Realized Losses for the related Collection Period.
Appendix A-16
"Proceeding" means any suit in equity, action at law or other judicial
or administrative proceeding.
"Purchase Agreement" means each agreement dated as of _________ __,
200[_] between a Seller Affiliate and Seller under which such Seller Affiliate
sells Receivables to Seller.
"Purchase Amount" of any Receivable means, with respect to any Deposit
Date and the last day of the related Collection Period, an amount equal to the
sum of (a) the outstanding Principal Balance of such Receivable as of the last
day of such Collection Period and (b) the amount of accrued and unpaid interest
on such Principal Balance at the related Contract Rate from the date a payment
was last made by or on behalf of the Obligor through and including the last day
of such Collection Period, in each case after giving effect to the receipt of
monies collected on such Receivable in such Collection Period.
"Purchased Receivable" means a Receivable purchased as of the close of
business on the last day of a Collection Period by Servicer pursuant to Section
4.7 of the Sale and Servicing Agreement or repurchased by Seller pursuant to
Section 3.3 of the Sale and Servicing Agreement.
"Rating Agencies" means [Moody's, Standard & Poor's and Fitch.]
"Rating Agency Condition" means, with respect to any action, that each
Rating Agency shall have been given 10 days' prior notice thereof (or such
shorter period as shall be acceptable to the Rating Agencies) and that none of
the Rating Agencies shall have notified Seller, Servicer, Owner Trustee or
Indenture Trustee in writing that such action will, in and of itself, result in
a reduction or withdrawal of the then current rating of any class of Notes, or
the Certificates.
"Realized Losses" means, for any Collection Period, the aggregate
Principal Balances of any Receivables that became Defaulted Receivables during
such Collection Period.
"Receivable" means each Motor Vehicle Loan described in the Schedule of
Receivables, but excluding (i) Defaulted Receivables to the extent the Principal
Balances thereof have been deposited in the Collection Account and (ii) any
Purchased Receivables.
"Receivable Files" is defined in Section 3.4 of the Sale and Servicing
Agreement.
"Record Date" means, with respect to any Distribution Date or
Redemption Date, the close of business on the day immediately preceding such
Distribution Date or Redemption Date; or, if Definitive Notes or Definitive
Certificates have been issued, the last day of the month preceding such
Distribution Date.
"Redemption Date" means in the case of a redemption of the Notes
pursuant to Section 10.1(a) of the Indenture or a payment to Noteholders
pursuant to Section 10.1(b) of the Indenture, the Distribution Date specified by
Servicer or Issuer pursuant to such Section 10.1(a) or (b).
"Redemption Price" means (a) in the case of a redemption of the Notes
pursuant to Section 10.1(a) of the Indenture, an amount equal to the unpaid
principal amount of the then
Appendix A-17
outstanding Class A-2 Notes plus accrued and unpaid interest thereon to but
excluding the Redemption Date, (b) in the case of a payment made to Noteholders
pursuant to Section 10.1(b) of the Indenture, the amount on deposit in the Note
Distribution Account, but not in excess of the amount specified in clause (a) or
(c) in the case of a redemption of the Certificates pursuant to Section 9.1 of
the Trust Agreement, an amount equal to the Certificate Balance of the
Certificates plus accrued interest thereon but excluding such Redemption Date.
"Required Rating" means a rating with respect to short term deposit
obligations of at least P-1 by Moody's and at least A-1 by Standard & Poor's.
"Reserve Account" means the account designated as such, established and
maintained pursuant to Section 5.8 of the Sale and Servicing Agreement.
"Reserve Account Deposit" means an amount equal to $__________.
"Reserve Account Property" means the Reserve Account, the Reserve
Account Deposit and all proceeds of the Reserve Account and the Reserve Account
Deposit, including all securities, investments, general intangibles, financial
assets and investment property from time to time credited to and any security
entitlement to the Reserve Account.
"Reserve Account Transfer Amount" means, with respect to any
Distribution Date, an amount equal to the lesser of (a) the amount of cash or
other immediately available funds on deposit in the Reserve Account on such
Distribution Date (before giving effect to any withdrawals therefrom relating to
such Distribution Date) or (b) the amount, if any, by which (i) the sum of the
Servicing Fee for the related Collection Period and all accrued and unpaid
Servicing Fees for prior Collection Periods, the Noteholders' Interest
Distributable Amount, the Certificateholders' Interest Distributable Amount, the
Noteholders' Principal Distributable Amount and the Certificateholders'
Principal Distributable Amount for such Distribution Date exceeds (ii) the sum
of the Available Interest and the Available Principal for such Distribution
Date.
"Responsible Officer" means, with respect to Indenture Trustee, any
officer within the Corporate Trust Office of Indenture Trustee, including any
Vice President, Assistant Vice President, Assistant Treasurer, Assistant
Secretary, or any other officer of Indenture Trustee customarily performing
functions similar to those performed by any of the above designated officers and
also, with respect to a particular matter, any other officer to whom such matter
is referred because of such officer's knowledge of and familiarity with the
particular subject.
"Rule of 78's Receivable" means a Receivable that provides for the
payment by the Obligor of a specified total amount of payments, payable in equal
monthly installments on each due date, which total represents the principal
amount financed and add-on interest in an amount calculated at the stated
Contract Rate for the term of the Receivable and allocated to each monthly
payment based upon a fraction, the numerator of which is the number of payments
scheduled to have been made prior to the due date for such monthly payment on
such Receivable and the denominator of which is the sum of all such numbers of
payments to be made until the maturity of such Receivable.
Appendix A-18
"Sale and Servicing Agreement" means the Sale and Servicing Agreement
among Issuer, Indenture Trustee, VW Credit, as Servicer, and Volkswagen Public
Auto Loan Securitization, LLC, as Seller, dated as of ________, 200[_], as the
same may be amended and supplemented from time to time.
"Schedule of Receivables" means, with respect to the Motor Vehicle
Loans to be conveyed to Seller by each Seller Affiliate and to Issuer by Seller,
the list identifying such Motor Vehicle Loans delivered to Indenture Trustee at
the Closing.
"Secretary of State" means the Secretary of State of the State of
Delaware.
"Securities Intermediary" is defined in Section 5.8 of the Sale and
Servicing Agreement.
"Seller" means Volkswagen Public Auto Loan Securitization, LLC, a
Delaware limited liability company, and any successor pursuant to Section 6.4 of
the Sale and Servicing Agreement.
"Seller Affiliate" means each Affiliate of the Seller that has sold
Receivables to the Seller.
"Servicer" means VW Credit and each Successor Servicer.
"Servicer Termination Event" means an event specified in Section 8.1 of
the Sale and Servicing Agreement.
"Servicer's Report" means a report of Servicer delivered pursuant to
Section 4.9 of the Sale and Servicing Agreement, substantially in the form of
Exhibit C to that agreement.
"Servicing Fee" is defined in Section 4.8 of the Sale and Servicing
Agreement.
"Servicing Fee Rate" means [___]% per annum.
"Simple Interest Method" means the method of allocating a fixed level
payment monthly installments between principal and interest, pursuant to which
such payment is allocated first to accrued and unpaid interest at the Contract
Rate on the unpaid principal balance and the remainder of such payment is
allocable to principal.
"Simple Interest Receivable" means any Receivable under which the
portion of a payment allocable to interest and the portion allocable to
principal is determined in accordance with the Simple Interest Method.
"Specified Reserve Account Balance" means, for any Distribution Date,
the greater of (a) ___% of the sum of the aggregate outstanding principal amount
of each class of Notes plus the outstanding Certificate Balance on such
Distribution Date (after giving effect to all payments on the Notes and
distributions with respect to the Certificates to be made on or prior to such
Distribution Date), and (b) the Minimum Specified Reserve Balance as of such
Distribution Date.
Appendix A-19
"Standard & Poor's" means Standard & Poor's Ratings Services, a
division of The XxXxxx-Xxxx Companies, Inc., or its successor.
"State" means any one of the 50 states of the United States of America
or the District of Columbia.
"Successor Servicer" is defined in Section 3.7(e) of the Indenture.
"Sum of Periodic Balances Receivable" means a Receivable that provides
for the payment by the Obligor of a specified total amount of payments, payable
in equal monthly installments on each due date, which total represents the
principal amount financed and add-on interest in an amount calculated at the
stated Contract Rate for the term of the Receivable and allocated to each
monthly payment based upon a fraction, the numerator of which is the principal
balance of such Receivable immediately prior to the due date for such monthly
payment and the denominator of which is the sum of all principal balances for
each monthly payment to be made until the maturity of such Receivable.
"Supplemental Servicing Fee" is defined in Section 4.8 of the Sale and
Servicing Agreement.
"Total Distribution Amount" means, for each Distribution Date, the sum
of (a) the Available Interest, (b) the Available Principal and (c) the Reserve
Account Transfer Amount, in each case in respect of such Distribution Date.
"Transaction Documents" means the Purchase Agreement, the Indenture,
the Depository Agreement, the Sale and Servicing Agreement, the Trust Agreement,
the Administration Agreement, the Notes, [the Certificates], and other documents
and certificates delivered in connection therewith.
"Treasury Regulations" means regulations, including proposed or
temporary regulations, promulgated under the Code.
"Trust Account Property" means the Trust Accounts, all amounts and
investments held from time to time in any Trust Account (whether in the form of
deposit accounts, Physical Property, book-entry securities, uncertificated
securities or otherwise), and all proceeds of the foregoing.
"Trust Accounts" is defined in Section 5.1 of the Sale and Servicing
Agreement.
"Trust Agreement" means the Trust Agreement dated as of _______ __,
200[_], between Seller and Owner Trustee, as the same may be amended and
supplemented from time to time.
"Trust Estate" means all money, instruments, rights and other property
that are subject or intended to be subject to the lien and security interest of
the Indenture for the benefit of the Noteholders (including all property and
interests Granted to Indenture Trustee), including all proceeds thereof.
Appendix A-20
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939 as
in force on the date hereof, unless otherwise specifically provided.
"Trust Property" shall have the meaning set forth in Section 2.1 of the
Sale and Servicing Agreement.
"UCC" means the Uniform Commercial Code, as in effect in the relevant
jurisdiction.
"VW Credit" means VW Credit, Inc., a Delaware corporation.
Appendix A-21
