ASSET REPRESENTATIONS REVIEW AGREEMENT VOLKSWAGEN AUTO LEASE TRUST 2024-A, as Issuer and VW CREDIT, INC., as Servicer and CLAYTON FIXED INCOME SERVICES LLC, as Asset Representations Reviewer Dated as of March 27, 2024
Exhibit 10.7
ASSET REPRESENTATIONS REVIEW AGREEMENT
VOLKSWAGEN AUTO LEASE TRUST 2024-A,
as Issuer
and
VW CREDIT, INC.,
as Servicer
and
XXXXXXX FIXED INCOME SERVICES LLC,
as Asset Representations Reviewer
Dated as of March 27, 2024
TABLE OF CONTENTS
ARTICLE I. USAGE AND DEFINITIONS | 1 | |
Section 1.01 | Usage and Definitions | 1 |
Section 1.02 | Definitions | 2 |
ARTICLE II. ENGAGEMENT; ACCEPTANCE | 3 | |
Section 2.01 | Engagement; Acceptance | 3 |
Section 2.02 | Confirmation of Status | 3 |
ARTICLE III. ASSET REPRESENTATIONS REVIEW PROCESS | 3 | |
Section 3.01 | Review Notices and Identification of Subject Leases | 3 |
Section 3.02 | Review Materials | 4 |
Section 3.03 | Performance of Reviews | 4 |
Section 3.04 | Review Report | 5 |
Section 3.05 | Review Representatives | 5 |
Section 3.06 | Dispute Resolution | 6 |
Section 3.07 | Limitations on Review Obligations | 6 |
ARTICLE IV. ASSET REPRESENTATIONS REVIEWER | 7 | |
Section 4.01 | Representations, Warranties and Covenants of the Asset Representations Reviewer | 7 |
Section 4.02 | Fees and Expenses | 8 |
ARTICLE V. OTHER MATTERS PERTAINING TO THE ASSET REPRESENTATIONS REVIEWER | 9 | |
Section 5.01 | Limitation on Liability | 9 |
Section 5.02 | Indemnification by Servicer | 9 |
Section 5.03 | Indemnification by Asset Representations Reviewer | 9 |
Section 5.04 | Inspections of Asset Representations Reviewer | 10 |
Section 5.05 | Delegation of Obligations | 10 |
ARTICLE VI. TREATMENT OF CONFIDENTIAL INFORMATION | 10 | |
Section 6.01 | Confidential Information | 10 |
Section 6.02 | Personally Identifiable Information | 12 |
ARTICLE VII. REMOVAL, RESIGNATION | 13 | |
Section 7.01 | Eligibility of the Asset Representations Reviewer | 13 |
Section 7.02 | Resignation and Removal of Asset Representations Reviewer | 14 |
Section 7.03 | Successor Asset Representations Reviewer | 14 |
Section 7.04 | Merger, Consolidation or Succession | 15 |
ARTICLE VIII. OTHER AGREEMENTS | 15 | |
Section 8.01 | Independence of the Asset Representations Reviewer | 15 |
Section 8.02 | No Petition | 15 |
Section 8.03 | Limitation of Liability of Owner Trustee | 16 |
Section 8.04 | Termination of Agreement | 16 |
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ARTICLE IX. MISCELLANEOUS PROVISIONS | 16 | |
Section 9.01 | Amendments | 16 |
Section 9.02 | Assignment; Benefit of Agreement; Third Party Beneficiaries | 17 |
Section 9.03 | Notices | 17 |
Section 9.04 | GOVERNING LAW | 18 |
Section 9.05 | Submission to Jurisdiction; Waiver of Jury Trial | 18 |
Section 9.06 | No Waiver; Remedies | 19 |
Section 9.07 | Severability | 19 |
Section 9.08 | Headings | 19 |
Section 9.09 | Counterparts | 19 |
Section 9.10 | Electronic Signatures and Transmission | 19 |
Schedule A – Representations and Warranties, Review Materials and Tests
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This ASSET REPRESENTATIONS REVIEW AGREEMENT (this “Agreement”), is entered into as of March 27, 2024, by and among VOLKSWAGEN AUTO LEASE TRUST 2024-A, a Delaware statutory trust, as issuer (the “Issuer”), VW CREDIT, INC., a Delaware corporation (“VCI”), as servicer (in such capacity, the “Servicer”), and XXXXXXX FIXED INCOME SERVICES LLC, a Delaware limited liability company, as asset representations reviewer (the “Asset Representations Reviewer”).
WHEREAS, the Origination Trust issued the 2024-A SUBI Certificate to VCI, as UTI Beneficiary, and VCI sold the 2024-A SUBI Certificate to Volkswagen Auto Lease/Loan Underwritten Funding, LLC (the “Transferor”), which in turn resold the 2024-A SUBI Certificate to the Issuer pursuant to a SUBI Transfer Agreement, in exchange for the Notes and Certificates issued by the Issuer;
ARTICLE I.
USAGE AND DEFINITIONS
Section 1.01 Usage and Definitions.
Except as otherwise defined herein or as the context may otherwise require, capitalized terms used but not otherwise defined herein are defined in Appendix A to the Indenture, dated as of the date hereof (as from time to time amended, supplemented or otherwise modified and in effect, the “Indenture”) between the Issuer and the Indenture Trustee, which also contains rules as to usage that are applicable herein.
Whenever used in this Agreement, the following words and phrases shall have the following meanings:
“Annual Fee” has the meaning stated in Section 4.02(a).
“Asset Review” means the completion by the Asset Representations Reviewer of the testing procedures for each Test and for each Subject Lease as further described in Section 3.03.
“Confidential Information” has the meaning stated in Section 6.01(b).
“Eligible Representations” shall mean those representations identified on Schedule A attached hereto.
“Information Recipients” has the meaning stated in Section 6.01(a).
“Indemnified Person” has the meaning stated in Section 4.05(a).
“Indenture” means the Indenture, dated as of March 27, 2024, between the Issuer and the Indenture Trustee, as the same may be amended, supplemented or modified from time to time.
“Indenture Trustee” means Citibank, N.A., a national banking association, as indenture trustee under the Indenture, and any successor thereto.
“Issuer PII” has the meaning stated in Section 6.02(a).
“Personally Identifiable Information” or “PII” has the meaning stated in Section 6.02(a).
“Review Fee” has the meaning stated in Section 4.02(b).
“Review Materials” means the documents, data, and other information required for each Test listed under “Documents” in Schedule A attached hereto.
“Review Notice” means a notice delivered to the Asset Representations Reviewer by the Indenture Trustee pursuant to Section 7.5(b) of the Indenture.
“Review Report” means, for an Asset Review, the report of the Asset Representations Reviewer prepared according to Section 3.04.
“Test” has the meaning stated in Section 3.03(a).
“Test Complete” has the meaning stated in Section 3.03(c).
“Test Fail” has the meaning stated in Section 3.03(a).
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“Test Incomplete” has the meaning stated in Section 3.03(a).
“Test Pass” has the meaning stated in Section 3.03(a).
“Underwriter” means each of X.X. Xxxxxx Securities LLC, TD Securities (USA) LLC, U.S. Bancorp Investments, Inc., Xxxxx Fargo Securities, LLC, BofA Securities, Inc. and RBC Capital Markets, LLC.
ARTICLE II.
ENGAGEMENT; ACCEPTANCE
Section 2.01 Engagement; Acceptance.
The Issuer hereby engages Xxxxxxx Fixed Income Services LLC to act as the Asset Representations Reviewer for the Issuer. Xxxxxxx Fixed Income Services LLC accepts the engagement and agrees to perform the obligations of the Asset Representations Reviewer on the terms stated in this Agreement.
Section 2.02 Confirmation of Status.
The parties confirm that the Asset Representations Reviewer is not responsible for (a) reviewing the Leases for compliance with the representations and warranties under the Transaction Documents, except as described in this Agreement, or (b) determining whether noncompliance with the representations or warranties constitutes a breach of the Transaction Documents.
ARTICLE III.
ASSET REPRESENTATIONS REVIEW PROCESS
Section 3.01 Review Notices and Identification of Subject Leases.
(a) On receipt of a Review Notice from the Indenture Trustee according to Section 7.5(b) of the Indenture, the Asset Representations Reviewer will start an Asset Review. The Asset Representations Reviewer will not be obligated to start an Asset Review until a Review Notice is received.
(b) Within 10 Business Days after receipt of a Review Notice, the Servicer will deliver to the Asset Representations Reviewer, with a copy to the Indenture Trustee, a list of the Subject Leases. The Asset Representations Reviewer will not be obligated to start an Asset Review until a Review Notice and the related list of Subject Leases is received. The Asset Representations Reviewer is not obligated to verify (i) whether the Indenture Trustee properly determined that a Review Notice was required or (ii) the accuracy or completeness of the list of Subject Leases provided by the Servicer.
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Section 3.02 Review Materials.
Section 3.03 Performance of Reviews.
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Within 10 calendar days after the end of the applicable Asset Review period under Section 3.03(b), the Asset Representations Reviewer will deliver to the Issuer, the Servicer, and the Indenture Trustee a Review Report indicating for each Subject Lease whether there was a Test Pass, Test Incomplete, Test Fail or Test Complete for each related Test. For each Test Fail or Test Complete, the Review Report will indicate the related reason. The Review Report will contain the findings and conclusions of the Asset Representations Reviewer with respect to the Asset Review, and will be included in the Issuer’s Form 10-D report for the Collection Period in which the Review Report is received. The Asset Representations Reviewer will ensure that the Review Report does not contain any PII. On reasonable request of the Servicer, the Asset Representations Reviewer will provide additional details on the Test results.
Section 3.05 Review Representatives.
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Section 3.06 Dispute Resolution.
If a Subject Lease that was the subject of an Asset Review becomes the subject of a dispute resolution proceeding under Section 11.27 of the Indenture, the Asset Representations Reviewer will participate in the dispute resolution proceeding on request of a party to the proceeding. The reasonable out-of-pocket expenses of the Asset Representations Reviewer for its participation in any dispute resolution proceeding will be considered expenses of the Requesting Party for the dispute resolution and will be paid by a party to the dispute resolution as determined by the mediator or arbitrator for the dispute resolution according to Section 11.27 of the Indenture. If not paid by a party to the dispute resolution, the expenses will be reimbursed according to Section 4.02(c) of this Agreement.
Section 3.07 Limitations on Review Obligations.
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ARTICLE IV.
ASSET REPRESENTATIONS REVIEWER
Section 4.01 Representations, Warranties and Covenants of the Asset Representations Reviewer.
The Asset Representations Reviewer hereby makes the following representations, warranties and covenants as of the Closing Date:
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Section 4.02 Fees and Expenses.
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ARTICLE V.
OTHER MATTERS PERTAINING TO THE ASSET REPRESENTATIONS REVIEWER
Section 5.01 Limitation on Liability.
The Asset Representations Reviewer will not be liable to any Person for any action taken, or not taken, in good faith under this Agreement or for errors in judgment. However, the Asset Representations Reviewer will be liable for its willful misconduct, bad faith, breach of this Agreement or negligence in performing its obligations under this Agreement. In no event will the Asset Representations Reviewer be liable for special, indirect or consequential losses or damages (including lost profit), even if the Asset Representations Reviewer has been advised of the likelihood of the loss or damage and regardless of the form of action.
Section 5.02 Indemnification by Servicer.
The Servicer shall indemnify the Asset Representations Reviewer against any and all loss, liability or expense (including reasonable attorneys’ fees) incurred by it in connection with the administration of this Agreement and the performance of its duties hereunder. The Asset Representations Reviewer shall notify the Servicer promptly of any claim for which it may seek indemnity. Failure by the Asset Representations Reviewer to so notify the Servicer shall not relieve the Servicer of its obligations hereunder. The Servicer shall defend any such claim, and the Asset Representations Reviewer may have separate counsel and the Servicer shall pay the fees and expenses of such counsel. The Servicer shall not reimburse any expense or indemnify against any loss, liability or expense incurred by the Asset Representations Reviewer arising out of or resulting from the Asset Representations Reviewer’s own bad faith, negligence, willful misfeasance or breach of this Agreement. The Servicer’s obligations under this Section 5.02 will survive the termination of this Agreement, the termination of the Issuer and the resignation or removal of the Asset Representations Reviewer.
Section 5.03 Indemnification by Asset Representations Reviewer.
The Asset Representations Reviewer will indemnify each of the Issuer, the Transferor, the Servicer, the Administrator, the Owner Trustee and the Indenture Trustee and their respective directors, officers, employees and agents for all fees, expenses (including reasonable attorneys’ fees and expenses), losses, damages and liabilities, including legal fees and expenses incurred in connection with the enforcement by such Person of an indemnification or other obligation of the Asset Representations Reviewer, resulting from (a) the willful misconduct, bad faith or negligence of the Asset Representations Reviewer in performing its obligations under this Agreement and (b) the Asset Representations Reviewer’s breach of any of its representations or warranties in this Agreement. The Asset Representations Reviewer’s obligations under this Section 4.04 will survive the termination of this Agreement, the termination of the Issuer and the resignation or removal of the Asset Representations Reviewer.
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Section 5.04 Inspections of Asset Representations Reviewer.
The Asset Representations Reviewer agrees that, with reasonable advance notice not more than once during any year, it will permit authorized representatives of the Issuer or the Servicer, during the Asset Representations Reviewer’s normal business hours, to examine and review the books of account, records, reports and other documents and materials of the Asset Representations Reviewer relating to (a) the performance of the Asset Representations Reviewer’s obligations under this Agreement, (b) payments of fees and expenses of the Asset Representations Reviewer for its performance and (c) a claim made by the Asset Representations Reviewer under this Agreement. In addition, the Asset Representations Reviewer will permit the Issuer’s or the Servicer’s representatives to make copies and extracts of any of those documents and to discuss them with the Asset Representations Reviewer’s officers and employees. Each of the Issuer and the Servicer will, and will cause its authorized representatives to, hold in confidence the information except if disclosure may be required by law or if the Issuer or the Servicer reasonably determines that it is required to make the disclosure under this Agreement or the other Transaction Documents. The Asset Representations Reviewer will maintain all relevant books, records, reports and other documents and materials for a period of at least two years after the termination of its obligations under this Agreement.
Section 5.05 Delegation of Obligations.
The Asset Representations Reviewer may not delegate or subcontract its obligations under this Agreement to any Person without the consent of the Issuer and the Servicer.
ARTICLE VI.
TREATMENT OF CONFIDENTIAL INFORMATION
Section 6.01 Confidential Information.
(i) lists of Subject Leases and any related Review Materials;
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(ii) origination and servicing guidelines, policies and procedures, and form contracts; and
(iii) notes, analyses, compilations, studies or other documents or records prepared by the Servicer, which contain information supplied by or on behalf of the Servicer or its representatives.
However, Confidential Information will not include information that (A) is or becomes generally available to the public other than as a result of disclosure by the Information Recipients, (B) was available to, or becomes available to, the Information Recipients on a non-confidential basis from a Person or entity other than the Issuer or the Servicer before its disclosure to the Information Recipients who, to the knowledge of the Information Recipient is not bound by a confidentiality agreement with the Issuer or the Servicer and is not prohibited from transmitting the information to the Information Recipients, (C) is independently developed by the Information Recipients without the use of the Confidential Information, as shown by the Information Recipients’ files and records or other evidence in the Information Recipients’ possession or (D) the Issuer or the Servicer provides permission to the applicable Information Recipients to release.
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Section 6.02 Personally Identifiable Information.
(i) The Asset Representations Reviewer will not disclose Issuer PII to its personnel or allow its personnel access to Issuer PII except (A) for the Asset Representations Reviewer personnel who require Issuer PII to perform an Asset Review, (B) with the prior consent of the Issuer or (C) as required by applicable law. When permitted, the disclosure of or access to Issuer PII will be limited to the specific information necessary for the individual to complete the assigned task. The Asset Representations Reviewer will inform personnel with access to Issuer PII of the confidentiality requirements in this Agreement and train its personnel with access to Issuer PII on the proper use and protection of Issuer PII; and
(ii) The Asset Representations Reviewer will not sell, disclose, provide or exchange Issuer PII with or to any third party without the prior consent of the Issuer.
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ARTICLE VII.
Section 7.01 Eligibility of the Asset Representations Reviewer.
The Asset Representations Reviewer must be a Person who (a) is not Affiliated with the Sponsor, the Transferor, the Servicer, the Indenture Trustee, the Owner Trustee or any of their Affiliates and (b) was not, and is not Affiliated with a Person that was, engaged by the Sponsor or any Underwriter to perform any due diligence on the Leases prior to the Closing Date.
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Section 7.02 Resignation and Removal of Asset Representations Reviewer.
(i) the Asset Representations Reviewer no longer meets the eligibility requirements in Section 7.01;
(ii) the Asset Representations Reviewer breaches any of its representations, warranties, covenants or obligations in this Agreement; or
(iii) a Bankruptcy Event of the Asset Representations Reviewer occurs.
Section 7.03 Successor Asset Representations Reviewer.
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Section 7.04 Merger, Consolidation or Succession.
Any Person (a) into which the Asset Representations Reviewer is merged or consolidated, (b) resulting from any merger or consolidation to which the Asset Representations Reviewer is a party or (c) succeeding to the business of the Asset Representations Reviewer, if that Person meets the eligibility requirements in Section 7.01, will be the successor to the Asset Representations Reviewer under this Agreement. Such Person will execute and deliver to the Issuer and the Servicer an agreement to assume the Asset Representations Reviewer’s obligations under this Agreement (unless the assumption happens by operation of law).
ARTICLE VIII.
OTHER AGREEMENTS
Section 8.01 Independence of the Asset Representations Reviewer.
The Asset Representations Reviewer will be an independent contractor and will not be subject to the supervision of, or deemed to be the agent of, the Issuer, the Indenture Trustee or the Owner Trustee for the manner in which it accomplishes the performance of its obligations under this Agreement. None of the Issuer, the Indenture Trustee or the Owner Trustee shall be responsible for monitoring the performance of the Asset Representations Reviewer or liable to any Person for the failure of the Asset Representations Reviewer to perform its obligations hereunder. Unless authorized by the Issuer, the Indenture Trustee or the Owner Trustee, respectively, the Asset Representations Reviewer will have no authority to act for or represent the Issuer, the Indenture Trustee or the Owner Trustee and will not be considered an agent of the Issuer, the Indenture Trustee or the Owner Trustee. Nothing in this Agreement will make the Asset Representations Reviewer and either of the Issuer, the Indenture Trustee or the Owner Trustee members of any partnership, joint venture or other separate entity or impose any liability as such on any of them.
Each party hereto agrees that, prior to the date which is one year and one day after payment in full of all obligations of each Bankruptcy Remote Party in respect of all securities issued by any Bankruptcy Remote Party (a) such party hereto shall not authorize any Bankruptcy Remote Party to commence a voluntary winding-up or other voluntary case or other proceeding seeking liquidation, reorganization or other relief with respect to such Bankruptcy Remote Party or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect in any jurisdiction or seeking the appointment of an administrator, a trustee, receiver, liquidator, custodian or other similar official with respect to such Bankruptcy Remote Party or any substantial part of its property or to consent to any such relief or to the appointment of or taking possession by any such official in an involuntary case or other proceeding commenced against such Bankruptcy Remote Party, or to make a general assignment for the benefit of its creditors generally, any party hereto or any other creditor of such Bankruptcy Remote Party, and (b) such party shall not commence or join with any other Person in commencing any proceeding against such Bankruptcy Remote Party under any bankruptcy, reorganization, liquidation or insolvency law or statute now or hereafter in effect in any jurisdiction. This Section 8.02 shall survive the termination of this Agreement.
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Section 8.03 Limitation of Liability of Owner Trustee.
Section 8.04 Termination of Agreement.
This Agreement will terminate, except for the obligations under Article VI and Sections 5.02 and 5.03, on the earlier of (a) the payment in full of all outstanding Notes and the satisfaction and discharge of the Indenture and (b) the date the Issuer is terminated under the Trust Agreement.
ARTICLE IX.
MISCELLANEOUS PROVISIONS
(a) Any term or provision of this Agreement may be amended by the Servicer and the Asset Representations Reviewer without the consent of the Indenture Trustee, any Noteholder, the Issuer, the Owner Trustee or any other Person subject to the satisfaction of one of the following conditions:
(i) the Servicer delivers an Opinion of Counsel to the Indenture Trustee to the effect that such amendment will not materially and adversely affect the interests of the Noteholders;
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(ii) the Servicer delivers an Officer’s Certificate to the Indenture Trustee to the effect that such amendment will not materially and adversely affect the interests of the Noteholders; or
(iii) the Rating Agency Condition is satisfied with respect to such amendment and the Servicer notifies the Indenture Trustee in writing that the Rating Agency Condition is satisfied with respect to such amendment;
provided, that no amendment pursuant to this Section 9.01 shall be effective which affects the rights, protections or duties of the Indenture Trustee or the Owner Trustee without the prior written consent of such Person.
(b) This Agreement may also be amended from time to time by the Servicer and the Asset Representations Reviewer with the consent of the Holders of Notes evidencing not less than a majority of the aggregate principal balance of the Outstanding Notes 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. It will not be necessary for the consent of Noteholders to approve the particular form of any proposed amendment or consent, but it will be sufficient if such consent approves the substance thereof. The manner of obtaining such consents (and any other consents of Noteholders provided for in this Agreement) and of evidencing the authorization of the execution thereof by Noteholders will be subject to such reasonable requirements as the Indenture Trustee may prescribe, including the establishment of record dates pursuant to the Note Depository Agreement.
Section 9.02 Assignment; Benefit of Agreement; Third Party Beneficiaries.
All demands, notices and communications hereunder shall be in writing and shall be delivered or mailed by registered or certified first-class United States mail, postage prepaid, hand delivery, prepaid courier service, telecopier or electronic mail, and addressed in each case as set forth on Schedule II to the Indenture or at such other address as any party shall have provided to the other parties in writing. Delivery shall occur only upon receipt or reported tender of such communication by an officer of the recipient entitled to receive such notices located at the address of such recipient for notices hereunder.
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THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS, WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAW (OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK).
Section 9.05 Submission to Jurisdiction; Waiver of Jury Trial.
EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY:
(a) SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY DOCUMENTS EXECUTED AND DELIVERED IN CONNECTION HEREWITH, OR FOR RECOGNITION AND ENFORCEMENT OF ANY JUDGMENT IN RESPECT THEREOF, TO THE NONEXCLUSIVE GENERAL JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK, THE COURTS OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK AND APPELLATE COURTS FROM ANY THEREOF;
(b) CONSENTS THAT ANY SUCH ACTION OR PROCEEDING MAY BE BROUGHT AND MAINTAINED IN SUCH COURTS AND WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT SUCH ACTION OR PROCEEDING WAS BROUGHT IN AN INCONVENIENT COURT AND AGREES NOT TO PLEAD OR CLAIM THE SAME;
(c) AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR PROCEEDING MAY BE EFFECTED BY MAILING A COPY THEREOF BY REGISTERED OR CERTIFIED MAIL (OR ANY SUBSTANTIALLY SIMILAR FORM OF MAIL), POSTAGE PREPAID, TO SUCH PERSON AT ITS ADDRESS DETERMINED IN ACCORDANCE WITH SECTION 9.03;
(d) AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT TO SUE IN ANY OTHER JURISDICTION; AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY HERETO IRREVOCABLY WAIVES ALL RIGHT OF TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BASED ON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT, ANY OTHER TRANSACTION DOCUMENT, OR ANY MATTER ARISING HEREUNDER OR THEREUNDER.
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Section 9.06 No Waiver; Remedies.
No party’s failure or delay in exercising a power, right or remedy under this Agreement will operate as a waiver. No single or partial exercise of a power, right or remedy will preclude any other or further exercise of the power, right or remedy or the exercise of any other power, right or remedy. The powers, rights and remedies under this Agreement are in addition to any powers, rights and remedies under law.
In case any provision in this Agreement shall be invalid, illegal or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
The article and section headings hereof have been inserted for convenience of reference only and shall not be construed to affect the meaning, construction or effect of this Agreement.
This Agreement may be executed in any number of counterparts, including in counterparts executed via electronic signature, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument. Delivery of an executed counterpart of a signature page of this Agreement by electronic transmission shall be effective as delivery of a manually executed counterpart of this Agreement.
Section 9.10 Electronic Signatures and Transmission.
(a) For purposes of this Agreement, any reference to “written” or “in writing” means any form of written communication, including, without limitation, electronic signatures, and any such written communication may be transmitted by electronic transmission. The term “electronic signature” shall mean any electronic symbol or process attached to, or associated with, a contract or other record and adopted by a person with the intent to sign, authenticate or accept such contract or record. Each of the parties hereto agrees that this Agreement, any addendum or amendment hereto or any other document necessary for the consummation of the transactions contemplated by this Agreement may be accepted, executed or agreed to through the use of an electronic signature in accordance with the E-Sign Act, UETA or any applicable state law. Each of the parties hereto are authorized to accept written instructions, directions, reports, notices or other communications delivered by electronic transmission and shall not have any duty or obligation to verify or confirm that the Person sending instructions, directions, reports, notices or other communications or information by electronic transmission is, in fact, a Person authorized to give such instructions, directions, reports, notices or other communications or information on behalf of the party purporting to send such electronic transmission; and none of the parties hereto shall have any liability for any losses, liabilities, costs or expenses incurred or sustained by any party as a result of such reliance upon or compliance with such instructions, directions, reports, notices or other communications or information delivered to such party, including, without limitation, the risk of such party acting on unauthorized instructions, notices, reports or other communications or information, and the risk of interception and misuse by third parties.
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(b) Any requirement in this Agreement that a document, including this Agreement, is to be signed or authenticated by “manual signature” or similar language shall not be deemed to prohibit signature by facsimile or electronic signature and shall not be deemed to prohibit delivery thereof by electronic transmission.
[Remainder of Page Left Blank]
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VOLKSWAGEN AUTO LEASE TRUST 2024-A, as Issuer | |||
By: | Deutsche Bank Trust Company Delaware, not in its individual capacity, but solely as Owner Trustee | ||
By: | /s/ Xxxxxx Xxxxx | ||
Name: Xxxxxx Xxxxx | |||
Title: attorney-in-fact | |||
By: | /s/ Xxxxxxx Xxxxx | ||
Name: Xxxxxxx Xxxxx | |||
Title: attorney-in-fact | |||
VW CREDIT, INC., as Servicer | |||
By: | /s/ Xxxx Xxxxxxxxx | ||
Name: | Xxxx Xxxxxxxxx | ||
Title: | Treasurer | ||
By: | /s/ Xxxxxx Xxxxx | ||
Name: | Xxxxxx Xxxxx | ||
Title: | Assistant Treasurer | ||
XXXXXXX FIXED INCOME SERVICES LLC, as Asset Representations Reviewer | |||
By: | /s/ Xxxxxxx Xxxxx | ||
Name: Xxxxxxx Xxxxx | |||
Title: Senior Vice President |
Schedule A
REPRESENTATIONS AND WARRANTIES, REVIEW MATERIALS AND TESTS
Representation
(1) Ownership:
a) | As of the Cut-Off Date, good and valid ownership of each Unit will be validly and effectively vested in the Origination Trust, free and clear of all Adverse Claims, except for Permitted Liens (and no Adverse Claim, other than an Adverse Claim of the type described in clause (1)(f) of the definition of Permitted Liens, shall be noted on the certificate of title for any Vehicle included in any such Unit). | |
b) | As of the Closing Date, good and valid ownership of the beneficial interest in each Unit will be validly and effectively conveyed to, and vested in the Buyer, free and clear of all Adverse Claims, except for Permitted Liens. |
Documents
Lease
Title documents
Procedures to be Performed
(i) | Review the title documents (including any applications for title or DMV registration forms) and confirm the Origination Trust is listed as the owner of the related Vehicle. | |
(ii) | Confirm no marks or notations on the Lease indicating that it has been pledged, assigned or otherwise conveyed to any Person other than the Origination Trust. | |
(iii) | Review the title documents and confirm the VIN number matches that which is recorded on the Lease. | |
(iv) | If steps (i) through (iii) are confirmed, this will be a Test Pass. |
(2) Event of Loss: As of the Cut-Off Date, to the Seller’s knowledge, no Vehicle included in any such Unit was subject to an event which would constitute an Event of Loss.
Documents
Lease file
(i) | Confirm there is no indication within the lease file that the related Vehicle was subject to an event which would constitute an Event of Loss. | |
(ii) | If step (i) is confirmed, this will be a Test Pass. |
(3) Eligible Units: As of the Cut-Off Date, each Unit included in the Transaction SUBI Portfolio was an Eligible Unit (as described below in Representations (i) through (xix)).
Documents
Lease
Data tape
Title documents
A-1
(i) | Confirm that the test questions for Representations (i) through (xxi) below are confirmed. | |
(ii) | If step (i) is confirmed, this will be a Test Pass. |
Each Unit:
(i) | the Lessee of which (i) is a resident of, or organized under the laws of and with its chief executive office in, the United States, (ii) is not an Affiliate of VCI, (iii) is not a government or a governmental subdivision or agency, (iv) is not shown on the Servicer's records as a debtor in a pending Bankruptcy Event and (v) is not the Lessee of any Defaulted Lease; |
(ii) | for which the related Vehicle, to VCI’s knowledge, was not subject to an event which would constitute a Casualty with respect to such Vehicle; |
(iii) | for which the related Lease is an “account” or “chattel paper” within the meaning of Section 9-102 of the UCC of all applicable jurisdictions; |
(iv) | for which the related Lease constitutes the legal, valid and binding obligation of the related Lessee enforceable against such Lessee in accordance with its terms subject to no offset, counterclaim, defense or other Adverse Claim; |
(v) | for which (i) good and valid ownership of such Lease has validly and effectively vested in the Origination Trust and (ii) as of the Closing Date, good and valid ownership of the beneficial interest of such Lease will be validly and effectively conveyed to, and vested in the Transferor, in each case, free and clear of all adverse claims, except for Permitted Liens; |
(vi) | for which the related Lease arises under a contract that does not require the Lessee under such contract to consent to the transfer, sale or assignment of the rights of the Origination Trust under such contract; |
(vii) | for which the related Lease does not, in whole or in part, materially contravene any law, rule or regulation applicable thereto (including, without limitation, those relating to usury, truth in lending, fair credit billing, fair credit reporting, equal credit opportunity, fair debt collection practices and privacy); |
(viii) | for which the related Lease was not originated in, or is subject to the laws of, any jurisdiction under which the transfer and assignment of a beneficial interest in such Vehicle pursuant to a transfer of the Transaction SUBI Certificate or the Transaction SUBI is unlawful, void or voidable; |
(ix) | for which the related Lease was originated in compliance, and complies in all material respects, with all material applicable legal requirements; |
(x) | which was generated in the ordinary course of the Origination Trust’s business; |
(xi) | for which only one original of the related Lease exists, which is held by the Servicer on behalf of the Origination Trust; |
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(xii) | for which there is no credit-related recourse to the related Dealer; |
(xiii) | for which the related Lease is in full force and effect, and has not been satisfied, subordinated or rescinded; |
(xiv) | for which the related Lease requires the related Lessee to obtain physical damage insurance covering the related Vehicle in accordance with the Servicer’s Customary Servicing Practices, was originated in compliance with the Servicer’s Customary Servicing Practices and otherwise complies with the Servicer’s Customary Servicing Practices; |
(xv) | for which the related Lease has a remaining term to maturity, as of the Cut-Off Date, greater than or equal to 3 months and less than or equal to 44 months and had an original lease term greater than or equal to 24 months and less than or equal to 48 months; |
(xvi) | which is not more than 30 days past due as of the Cut-Off Date and is not a Defaulted Lease; |
(xvii) | for which the related Lease is payable solely in U.S. dollars; |
(xviii) | which has a Securitization Value, as of the Cut-Off Date, not greater than $86,000; |
(xix) | for which the related Lease provides for substantially equal monthly payments and level payments that fully amortize the adjusted capitalized cost of the Lease to the related Stated Residual Value over the term of such Lease; |
(xx) | for which the related Lease was originated on or after October 1, 2020; and |
(xxi) | for which the related Vehicle is a new Volkswagen brand or Audi brand vehicle, in each case, that is not a diesel engine vehicle. |
Documents
Lease
Data tape
Title documents
Lease file
Procedures to be Performed
(i) | Lessee |
a. | Review the Lease and confirm the Lessee’s address is located within the United States. | |
b. | Review the Lease and confirm the Lessee is not an Affiliate of VCI, or a government or a governmental subdivision or agency. | |
c. | Confirm with Servicer that Lessee is not shown on the Servicer's records as a debtor in a pending Bankruptcy Event and is not in default. |
(ii) | Casualty |
a. | Confirm there is no indication within the lease file that the related Vehicle was subject to an event which would constitute a Casualty with respect to such Vehicle. |
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(iii) | “Account” or “chattel paper” |
a. | Review the Lease and confirm Lease is an “account” or “chattel paper” within the meaning of Section 9-102 of the UCC of all applicable jurisdictions. |
(iv) | Legal, valid and binding obligation of Lessee |
a. | Review the Lease and confirm Xxxxx has been fully executed by the related Lessee. | |
b. | Confirm that the Vehicle Identification Number (VIN) on the Lease matches the VIN on the title documents. |
(v) | Good and valid ownership |
a. | Review the title documents (including any applications for title or DMV registration forms) and confirm the Origination Trust is listed as the owner of the related Vehicle. | |
b. | Review the lease file and confirm no marks or notations indicating that it has been pledged, assigned or otherwise conveyed to any Person other than the Origination Trust. | |
c. | Review the title documents and confirm the VIN number matches that which is recorded on the Lease. |
(vi) | Consent |
a. | Review the Lease and confirm that Xxxxxx does not need to consent to the transfer, sale or assignment of the rights of the Origination Trust under such contract. |
(vii) | Law, rule or regulation |
a. | Review the Lease and confirm the form number and revision date are on the list of approved lease forms. | |
b. | Review the data tape and confirm that there is no evidence of any judgment against VCI indicating that the lease does not violate any applicable law, rule or regulation. |
(viii) | Transfer of the Transaction SUBI Certificate and the Transaction SUBI |
a. | Review the data tape and confirm that there is no evidence of any judgment against VCI indicating that the lease does not violate any applicable law regarding the transfer of the Transaction SUBI Certificate or the Transaction SUBI. |
(ix) | Compliance with material applicable legal requirements |
a. | Review the Lease and confirm the form number and revision date are on the list of approved lease forms. | |
b. | Review the data tape and confirm that there is no evidence of any judgment against VCI indicating that the lease was originated in violation of applicable law. | |
c. | Review the data tape and confirm that there is no evidence of any Lessee alleging non-compliance. |
(x) | Ordinary course of the Origination Trust’s business |
a. | Review the Lease and confirm the form number and revision date are on the list of approved lease forms. |
(xi) | One original |
a. | Review the Lease and confirm that the Lease either constitutes an electronically authenticated original, or is marked “Authoritative Copy.” |
(xii) | No credit-related recourse |
a. | Confirm the Lease form number and revision date are on the list of approved forms. |
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(xiii) | Full force and effect |
a. | Confirm there is no indication within the lease file that the Lease has been satisfied, subordinated or rescinded. |
(xiv) | Servicer’s Customary Servicing Practices |
a. | Review the Lease and confirm the form number and revision date are on the list of approved lease forms. | |
b. | Review the data tape and confirm that the Lease was automatically approved by VCI’s electronic decisioning model, or if not automatically approved, was approved by a VCI credit analysis with appropriate approval authority. |
(xv) | Remaining term to maturity; original lease term |
a. | Review the data tape and confirm the Lease has a remaining term to maturity, as of the Cut-Off Date, which does not exceed the maximum allowable number of months. | |
b. | Review the Lease and confirm the number of payments, including any first and last payment if applicable, is within the original lease term limits. |
(xvi) | Defaulted Lease |
a. | Review the data tape and confirm the Lease is not more than 30 days past due as of the Cut-Off Date. | |
b. | Review the data tape and confirm that, if the related Vehicle has been repossessed, it has been charged off. | |
c. | Review the data tape and confirm that the Lease has not been charged off. |
(xvii) | U.S. Dollars |
a. | Review the Lease and confirm that all amounts are reported in U.S. dollars. |
(xviii) | Securitization Value |
a. | Review the data tape and confirm the Lease has a Securitization Value that does not exceed the maximum allowable dollar amount. |
(xix) | Amortization |
a. | Review the Lease and confirm the product of the number of payments and the base monthly payment, together with any first and last payments, if applicable, is equal to the total of base monthly payments. | |
b. | Review the Lease and confirm the adjusted capitalized cost minus the Stated Residual Value is equal to the depreciation and any amortized amounts. | |
c. | Review the Lease and confirm that the depreciation and any amortized amounts equals the total of base monthly payments. |
(xx) | Origination Date |
a. | Review the Lease and confirm it was originated on or after the oldest allowable date of origination. |
(xxi) | New Volkswagen or Audi vehicle that is not a diesel engine vehicle |
a. | Review the Lease and confirm the related Vehicle is a new vehicle. | |
b. | Review the Lease and confirm the related Vehicle’s make is within guidelines. |
(xxii) | If steps (i) through (xxi) are confirmed, then this will be a Test Pass. |
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Representation
(4) Amortization of Leases: The Lease included in such Unit was written on a constant yield basis and provides for substantially equal monthly payments, such that, at the end of the lease term, the capitalized cost has been amortized to an amount equal to the Stated Residual Value of the related Vehicle.
Documents
Lease |
(i) | Review the Lease and confirm the product of the number of payments and the base monthly payment, together with any first and last payments, if applicable, is equal to the total of base monthly payments. | |
(ii) | Review the Lease and confirm the adjusted capitalized cost minus the Stated Residual Value is equal to the depreciation and any amortized amounts. | |
(iii) | Review the Lease and confirm that the depreciation and any amortized amounts equals the total of base monthly payments. | |
(iv) | If steps (i) through (iii) are confirmed, this will be a Test Pass. |
(5) Valid Assignment: No Transaction Lease was originated in, or is subject to the laws of, any jurisdiction under which the transfer and assignment of a beneficial interest in such Transaction Vehicle pursuant to a transfer of the Transaction SUBI Certificate or the Transaction SUBI or any other transaction contemplated hereunder to occur on or about the Closing Date, is unlawful, void or voidable. No Transaction Vehicle is subject to the laws of any jurisdiction under which the transfer and assignment of a beneficial interest in such Vehicle pursuant to transfer of the Transaction SUBI Certificate or the Transaction SUBI, or any other transaction contemplated hereunder to occur on or about the Closing Date, is unlawful, void or voidable
Documents
Lease
(i) | Review the data tape and confirm that there is no evidence of any judgment against VCI indicating that the lease does not violate any applicable law regarding the transfer of the Transaction SUBI Certificate or the Transaction SUBI. | |
(ii) | If step (i) is confirmed, this will be a Test Pass. |
(6) Aggregate Securitization Value: As of the Cut-Off Date, the aggregate Securitization Value of all Transaction Units was $1,744,186,117.32.
Documents
Data tape
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Procedures to be Performed
(i) | Review the data tape and confirm all the Leases have an aggregate Securitization Value noted. | |
(ii) | If step (i) is confirmed, this will be a Test Pass. |
(7) Location of Leases: As of the Closing Date, the files and records for each Unit included in the Transaction SUBI Portfolio are maintained at the offices of the Servicer.
Documents
None
(i) | Confirm the location of the Lease with the Servicer. | |
(ii) | If step (i) is confirmed, this will be a Test Pass. |
(8) Accuracy of Information: The information relating to each Unit set forth on Schedule 1 to the Transaction SUBI Supplement is true and correct in all material respects.
Documents
Data tape
(i) | Review the data tape and confirm that the terms of the Unit match the terms of the Unit from the Lease. | |
(ii) | If step (i) is confirmed, this will be a Test Pass. |
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