EXHIBIT 10.4
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VW CREDIT LEASING, LTD.,
U.S. BANK NATIONAL ASSOCIATION,
Not in its Individual Capacity
but Solely as SUBI Trustee,
and
VW CREDIT, INC.,
as Servicer
TRANSACTION SUBI SUPPLEMENT 2002-A TO
SERVICING AGREEMENT
Dated as of November [ ], 2002
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TABLE OF CONTENTS
PAGE
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ARTICLE V DEFINITIONS...............................................................2
Section 5.1 Definitions.......................................................2
ARTICLE VI REPRESENTATIONS AND WARRANTIES OF SERVICER................................3
Section 6.1 Existence and Power...............................................3
Section 6.2 Authorization and No Contravention................................3
Section 6.3 No Consent Required...............................................3
Section 6.4 Binding Effect....................................................3
Section 6.5 Accuracy of Information...........................................3
Section 6.6 No Proceedings....................................................3
ARTICLE VII SPECIFIC REQUIREMENTS FOR ADMINISTRATION AND SERVICING OF THE
TRANSACTION SUBI PORTFOLIO................................................4
Section 7.1 Appointment of Servicer...........................................4
Section 7.2 Servicer Bound by Servicing Agreement.............................4
Section 7.3 Application of Proceeds...........................................5
Section 7.4 Servicer Certificate..............................................5
Section 7.5 Servicer Fee......................................................6
Section 7.6 Insurance Lapses; Repairs.........................................6
Section 7.7 Licensing of Origination Trust....................................6
Section 7.8 Servicer Advances.................................................6
Section 7.9 Payment of Fees and Expenses......................................6
Section 7.10 Annual Independent Public Accountants' Servicing Report...........6
Section 7.11 Annual Officer's Certificate; Annual ERISA Certification..........7
Section 7.12 Postmaturity Term Extension.......................................7
Section 7.13 Insurance Policies; Additional Insureds...........................7
Section 7.14 Security Deposits.................................................7
ARTICLE VIII TERMINATION OF SERVICER...................................................8
Section 8.1 Termination of Servicer as to Transaction SUBI Portfolio..........8
Section 8.2 No Effect on Other Parties........................................9
ARTICLE IX MISCELLANEOUS.............................................................9
Section 9.1 Amendment.........................................................9
Section 9.2 Governing Law....................................................10
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TABLE OF CONTENTS
(continued)
PAGE
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Section 9.3 Notices..........................................................10
Section 9.4 Third-Party Beneficiaries........................................10
Section 9.5 Severability.....................................................10
Section 9.6 Binding Effect...................................................11
Section 9.7 Article and Section Headings.....................................11
Section 9.8 Execution in Counterparts........................................11
Section 9.9 Further Assurances...............................................11
Section 9.10 Each SUBI Separate; Assignees of SUBI............................11
Section 9.11 No Petition......................................................12
Section 9.12 Submission to Jurisdiction.......................................12
Section 9.13 Limitation of Liability of U.S. Bank.............................13
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TRANSACTION SUBI SUPPLEMENT 2002-A TO
SERVICING AGREEMENT
THIS TRANSACTION SUBI SUPPLEMENT 2002-A TO SERVICING AGREEMENT (as
amended, modified or supplemented from time to time, the "Transaction SUBI
Servicing Supplement"), dated as of November [ ], 2002, is among VW CREDIT
LEASING, LTD., a Delaware business trust (the "Origination Trust"), U.S. BANK
NATIONAL ASSOCIATION, a national banking association, as successor to U.S. Bank
Trust National Association, not in its individual capacity but solely as a SUBI
Trustee (hereinafter, together with its successors and assigns, the "SUBI
Trustee") of the Origination Trust, and VW CREDIT, INC., a Delaware corporation
("VCI"), as Servicer (in such capacity, the "Servicer").
RECITALS
A. VCI (in its capacity as settlor, the "Settlor"), Wilmington Trust
Company, as Delaware Trustee (the "Delaware Trustee"), and U.S. Bank National
Association, as successor to U.S. Bank Trust National Association, as
Administrative Trustee and UTI Trustee (in such capacity, together with any
successor or permitted assign, the "Administrative Trustee" and the "UTI
Trustee", respectively; collectively with the Delaware Trustee and the SUBI
Trustee, the "Origination Trustees") have entered into that certain Trust
Agreement dated as of June 2, 1999 (as modified, supplemented or amended from
time to time, the "Origination Trust Agreement") pursuant to which the Settlor
formed the Origination Trust for the purpose of acting as agent and nominee
owner of various Origination Trust Assets in accordance with the Origination
Trust Agreement.
B. The Origination Trust and the Servicer also have entered into that
certain Servicing Agreement dated as of June 22, 1999, as amended and restated
as of December 21, 2000 (as modified, supplemented or amended from time to time,
the "Servicing Agreement"), which provides, among other things, for the
servicing of the Origination Trust Assets by the Servicer.
C. The Origination Trust Agreement contemplates that from time to time
the UTI Trustee, on behalf of the Origination Trust and at the direction of the
Initial Beneficiary, will identify and allocate on the Origination Trust's books
and records certain Origination Trust Assets within separate SUBI Portfolios and
create and issue to the Initial Beneficiary separate special units of beneficial
interest in the Origination Trust or "SUBIs", the beneficiary or beneficiaries
of which will hold an exclusive 100% beneficial ownership interest in the
related SUBI Portfolios, all as set forth in the Origination Trust Agreement.
D. Concurrently herewith, Volkswagen Auto Lease Underwritten Funding,
LLC (the "Transferor") will purchase the Transaction SUBI and the Transaction
SUBI Certificate from VCI and the Issuer will purchase the Transaction SUBI
Certificate from the Transferor. The Issuer is expected to fund such purchase
from proceeds of the issuance of the Notes and Certificates.
E. Concurrently herewith, Volkswagen Auto Lease Trust 2002-A, by U.S.
Bank Trust National Association, not in its individual capacity but solely as
owner trustee (the
"Issuer"), is entering into an asset-backed financing transaction pursuant to,
among other agreements, an Indenture with The Bank of New York, as indenture
trustee (the "Indenture Trustee"), pursuant to which the Issuer will issue
asset-backed notes and will grant a security interest to the Indenture Trustee
in certain of its assets.
F. Concurrently herewith, the Initial Beneficiary, the UTI Trustee, the
Administrative Trustee and the SUBI Trustee are entering into that certain
Transaction SUBI Supplement 2002-A to Origination Trust Agreement (as amended,
modified or supplemented from time to time, the "Transaction SUBI Supplement")
to supplement the terms of the Origination Trust Agreement (i) to cause the UTI
Trustee to identify and allocate Origination Trust Assets to a particular SUBI
Portfolio (the "Transaction SUBI Portfolio"), which shall consist of Origination
Trust Assets which shall constitute SUBI Assets, and (ii) to create and issue to
VCI a SUBI Certificate (such SUBI Certificate, together with any replacements
thereof, the "Transaction SUBI Certificate"), that will evidence the entire
beneficial ownership interest in the related SUBI Portfolio (the "Transaction
SUBI") including the Transaction Vehicles, with the Origination Trust continuing
to hold record title to the Transaction Vehicles as agent and nominee for the
holder of the Transaction SUBI Certificate, and (iii) to set forth the terms and
conditions thereof.
G. Concurrently herewith, the UTI Trustee, on behalf of the Origination
Trust and at the direction of the Initial Beneficiary, is issuing to VCI the
Transaction SUBI Certificate, representing all of the Initial Beneficiary's
right, title and interest in and to the Transaction SUBI, and the right to
realize on any property that may be included in the Transaction SUBI Portfolio,
and all proceeds thereof.
H. The Origination Trust desires to retain the Servicer to provide
certain services with respect to the Transaction SUBI Portfolio beneficially
owned by the Issuer, and the parties hereto desire, pursuant to this Transaction
SUBI Servicing Supplement, to supplement the terms of the Servicing Agreement
insofar as they apply to the Transaction SUBI Portfolio, providing for specific
servicing obligations that will benefit the Issuer, as holder of the Transaction
SUBI Certificate, and the Indenture Trustee, as the pledgee of the Transaction
SUBI Certificate on behalf of the Noteholders.
NOW THEREFORE, in consideration of the premises and the mutual
covenants herein contained and in the Servicing Agreement, the parties hereto
agree to the following supplemental obligations with regard to the Transaction
SUBI Portfolio:
ARTICLE V
DEFINITIONS
SECTION 5.1 DEFINITIONS. For all purposes of this Transaction SUBI
Servicing Supplement, except as otherwise expressly provided or unless the
context otherwise requires, (a) unless otherwise defined herein, all capitalized
terms used herein shall have the meanings attributed to them (i) in Appendix A
of the Indenture, (ii) if not defined therein, by the Servicing Agreement, (iii)
if not defined therein, by the Origination Trust Agreement, or (iv) if not
defined therein, by the Transaction SUBI Supplement, (b) the capitalized terms
defined in this Transaction SUBI Servicing Supplement have the meanings assigned
to them in this Transaction
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SUBI Servicing Supplement and include (i) all genders and (ii) the plural as
well as the singular, (c) all references to words such as "herein", "hereof" and
the like shall refer to this Transaction SUBI Servicing Supplement as a whole
and not to any particular article or section within this Transaction SUBI
Servicing Supplement, (d) the term "include" and all variations thereon shall
mean "include without limitation", and (e) the term "or" shall include "and/or".
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF SERVICER
The Servicer represents and warrants to the Transferor, the Issuer and
the Indenture Trustee on behalf of the Noteholders as follows:
SECTION 6.1 EXISTENCE AND POWER. The Servicer is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware and has all power and authority required to carry on its business as it
is now conducted. The Servicer has obtained all necessary licenses and approvals
in all jurisdictions where the failure to do so would materially and adversely
affect the business, properties, financial condition or results of operations of
the Servicer, taken as a whole.
SECTION 6.2 AUTHORIZATION AND NO CONTRAVENTION. The execution, delivery
and performance by the Servicer of each Transaction Document to which it is a
party (i) have been duly authorized by all necessary corporate action and (ii)
do not violate or constitute a default under (A) any applicable law, rule or
regulation, (B) its organizational instruments or (C) any agreement, contract,
order or other instrument to which it is a party or its property is subject and
(iii) will not result in any Adverse Claim on any Transaction Unit or Collection
or give cause for the acceleration of any indebtedness of the Servicer.
SECTION 6.3 NO CONSENT REQUIRED. No approval, authorization or other
action by, or filing with, any Governmental Authority is required in connection
with the execution, delivery and performance by the Servicer of any Transaction
Document, other than UCC filings and other than approvals and authorizations
that have previously been obtained and filings which have previously been made.
SECTION 6.4 BINDING EFFECT. Each Transaction Document to which the
Servicer is a party constitutes the legal, valid and binding obligation of the
Servicer enforceable against the Servicer in accordance with its terms, except
as limited by bankruptcy, insolvency, or other similar laws of general
application relating to or affecting the enforcement of creditors' rights
generally and subject to general principles of equity.
SECTION 6.5 ACCURACY OF INFORMATION. All information heretofore
furnished by or on behalf of the Servicer in writing to the Agent for purposes
of or in connection with this Agreement or any transaction contemplated hereby
is true and accurate in all material respects on and as of the date such
information was furnished (except to the extent that such furnished information
relates solely to an earlier date, in which case such information is true and
accurate in all material respects on and as of such earlier date).
SECTION 6.6 NO PROCEEDINGS. There is no action, suit, proceeding or
investigation pending or, to the knowledge of the Servicer, threatened against
the Servicer which, either in any
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one instance or in the aggregate, would result in any material adverse change in
the business, operations, financial condition, properties or assets of the
Servicer, or in any material impairment of the right or ability of the Servicer
to carry on its business substantially as now conducted, or in any material
liability on the part of the Servicer, or which would render invalid this
Agreement or the Transaction Units or the obligations of the Servicer
contemplated herein, or which would materially impair the ability of the
Servicer to perform under the terms of this Agreement or any other Transaction
Document.
ARTICLE VII
SPECIFIC REQUIREMENTS FOR
ADMINISTRATION AND SERVICING OF THE
TRANSACTION SUBI PORTFOLIO
SECTION 7.1 APPOINTMENT OF SERVICER.
(a) The Servicer shall manage, for the benefit of each holder and
pledgee of the Transaction SUBI, at its expense, service, administer and make
collections on the Transaction Units in accordance with its Customary Servicing
Practices in effect from time to time, using the same degree of skill and
attention that the Servicer exercises with respect to all comparable retail
automotive leases that it services for itself or others.
(b) The Servicer may delegate its duties and obligations as
Servicer in accordance with Section 2.10 of the Servicing Agreement.
(c) If the Servicer shall commence a legal proceeding to enforce
a Transaction Unit, the Origination Trust shall thereupon be deemed to have
automatically assigned, solely for the purpose of collection, such Transaction
Unit to the Servicer. If in any enforcement suit or legal proceeding it shall be
held that the Servicer may not enforce a Transaction Unit on the ground that it
is not a real party in interest or a holder entitled to enforce such Transaction
Unit, the Issuer shall, at the Servicer's expense and direction, take steps to
enforce such Transaction Unit, including bringing suit in its name.
(d) The Servicer shall account for the Transaction SUBI Portfolio
separately from any other SUBI Portfolio.
SECTION 7.2 SERVICER BOUND BY SERVICING AGREEMENT.
(a) The Servicer shall continue to be bound by all provisions of
the Servicing Agreement with respect to the Transaction Units allocated to the
Transaction SUBI Portfolio, including the provisions of Article II thereof
relating to the administration and servicing of Leases; and the provisions set
forth herein shall operate either as additions to or modifications of the
existing obligations of the Servicer under the Servicing Agreement, as the
context may require. In the event of any conflict between the provisions of this
Transaction SUBI Servicing Supplement and the Servicing Agreement with respect
to the Transaction SUBI, the provisions of this Transaction SUBI Servicing
Supplement shall prevail.
(b) For purposes of determining the Servicer's obligations with
respect to the servicing of the Transaction SUBI Portfolio under this
Transaction SUBI Servicing Supplement,
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general references in the Servicing Agreement to: (i) a SUBI Portfolio shall be
deemed to refer more specifically to the Transaction SUBI Portfolio; (ii) a SUBI
Servicing Agreement Supplement shall be deemed to refer more specifically to
this Transaction SUBI Servicing Supplement; and (iii) a SUBI Supplement shall be
deemed to refer more specifically to the Transaction SUBI Supplement.
SECTION 7.3 APPLICATION OF PROCEEDS.
(a) Prior to the satisfaction and discharge of the Indenture with
respect to the Collateral, the Servicer shall pay an amount equal to all
Collections received in respect of the Transaction SUBI during any Collection
Period into the Collection Account on or prior to 11:00 a.m., New York City
time, on the following Payment Date; provided, however, that if the Monthly
Remittance Condition is not satisfied, the Servicer will be required to deposit
an amount equal to all Collections into the Collection Account within two
Business Days after receipt (it being understood that, with respect to Sales
Proceeds, the Servicer shall not be obligated to remit the actual Sales Proceeds
but instead such actual Sales Proceeds shall be held by the Qualified
Intermediary or in a Qualified Intermediary Account which shall not constitute
Collateral). The "Monthly Remittance Condition" shall be deemed to be satisfied
if (i) VCI is the Servicer, (ii) no Servicer Replacement Event has occurred and
is continuing, and (iii)(x) Volkswagen AG has a short-term debt rating of at
least "P-1" from Xxxxx'x and "A-1" from Standard & Poor's, (y) both Xxxxx'x and
Standard & Poor's are then rating a debt issuance of Volkswagen of America, Inc.
or VCI (and, in the case of VCI, such debt issuance is guaranteed by Volkswagen
of America, Inc.) and (z) VCI remains a direct or indirect wholly-owned
subsidiary of Volkswagen AG. Pending deposit into the Collection Account,
Collections may be used by the Servicer at its own risk and for its own benefit
and will not be segregated from its own funds.
(b) After the satisfaction and discharge of the Indenture with
respect to the Collateral, the Servicer shall pay an amount equal to Collections
in accordance with the instructions provided from time to time by the holder of
the Transaction SUBI Certificate.
(c) Notwithstanding anything to the contrary contained in this
Agreement, for so long as the Monthly Remittance Condition has been satisfied,
the Servicer shall be permitted to deposit into the Collection Account only the
net amount distributable to the Issuer, as holder of the Transaction SUBI
Certificate, on the Payment Date. The Servicer shall, however, account for all
Collections as if all of the deposits and distributions described herein were
made individually.
SECTION 7.4 SERVICER CERTIFICATE. On each Determination Date prior to
the satisfaction and discharge of the Indenture with respect to the Collateral,
the Servicer shall deliver to the Indenture Trustee, the Owner Trustee, the
Administrator and each Paying Agent a Servicer Certificate reflecting
information as of the close of business of the Servicer for the immediately
preceding Collection Period containing the information described in Section
8.3(a) of the Indenture. At the sole option of the Servicer, each Servicer
Certificate may be delivered in electronic or hard copy format.
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SECTION 7.5 SERVICER FEE. On each Payment Date, the Issuer shall pay to
the Servicer in accordance with Section 8.4(a) of the Indenture the Servicing
Fee for the immediately preceding Collection Period as compensation for its
services. In addition, the Servicer may retain any Supplemental Servicing Fees.
SECTION 7.6 INSURANCE LAPSES; REPAIRS. The Servicer shall not be
required to monitor whether any Lessee has, and shall have no liability in the
event that any Lessee fails to maintain in full force and effect, a physical
damage insurance policy covering any Transaction Unit or naming the Origination
Trust as loss payee. Without limiting the foregoing, in no event shall the
Servicer be obligated to perform or be liable for any repairs or maintenance
with respect to any Transaction Unit.
SECTION 7.7 LICENSING OF ORIGINATION TRUST. The Servicer shall cause the
Origination Trust to maintain at all times all licenses and permits necessary to
carry on the Origination Trust's leasing business in each jurisdiction in which
the Origination Trust operates, except where the failure to have any license or
permit would not materially and adversely affect the business, properties,
financial condition or results of operation of the Origination Trust, taken as a
whole.
SECTION 7.8 SERVICER ADVANCES. On each Payment Date, the Servicer shall
deposit into the Collection Account prior to 11:00 a.m., New York City time, an
advance in an amount equal to the lesser of (a) any shortfall in the amounts
available to make the payments in clauses (i) through (iv) of Section 8.4(a) of
the Indenture and (b) the aggregate scheduled monthly lease payments due on
Included Units but not received (or not received in full) during and prior to
the related Collection Period (an "Advance"); provided, however, that the
Servicer will not be obligated to make an Advance if the Servicer reasonably
determines in its sole discretion that such Advance is not likely to be repaid
from future cash flows from the Transaction SUBI Portfolio. No Advances will be
made with respect to Defaulted Leases.
SECTION 7.9 PAYMENT OF FEES AND EXPENSES. The Servicer shall pay all
expenses incurred in connection with the administration and servicing of the
Transaction SUBI and the Transaction Units, including, without limitation,
expenses incurred by it in connection with its activities hereunder, including
fees and disbursements of the SUBI Trustee, independent accountants, taxes
imposed on the Servicer and any SUBI Trustee indemnity claims.
SECTION 7.10 ANNUAL INDEPENDENT PUBLIC ACCOUNTANTS' SERVICING REPORT.
The Servicer shall cause a firm of independent certified public accountants, who
may also render other services to the Servicer or to its Affiliates, to deliver
to the Owner Trustee, the Indenture Trustee and the Rating Agencies on or before
April 30 of each year, beginning April 30, 2004, a report addressed to the board
of directors of the Servicer, to the effect that such firm has examined the
financial statements of the Servicer or, if applicable, the parent corporation
of the Servicer, and issued its report thereon and that such examination: (a)
was made in accordance with generally accepted auditing standards, and
accordingly included such tests of the accounting records and such other
auditing procedures as such firm considered necessary in the circumstances, (b)
included tests relating to Units serviced for others in accordance with the
Uniform Single Audit Program for Mortgage Bankers, to the extent the procedures
in such program are applicable to the servicing obligations set forth in this
Agreement, and (c) except as
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described in the report, disclosed no exceptions or errors in the records
relating to Units serviced for others that, in the firms' opinion, paragraph
four of such Uniform Single Audit Program for Mortgage Bankers requires such
firm to report.
SECTION 7.11 ANNUAL OFFICER'S CERTIFICATE; ANNUAL ERISA CERTIFICATION.
(a) The Servicer will deliver to the Rating Agencies, the Owner
Trustee and the Indenture Trustee on or before April 30 of each calendar year,
beginning with April 30, 2004, an Officers' Certificate substantially in the
form of Exhibit A stating that (i) a review of the activities of the Servicer
during the preceding calendar year (or since the Closing Date, in the case of
the first such Officers' Certificate) and of its performance under the Servicing
Agreement and this Transaction SUBI Servicing Supplement was made under the
supervision of the officer signing such certificate and (ii) to the best of such
officer's knowledge, based on such review, the Servicer has performed in all
material respects its obligations under the Transaction SUBI Servicing
Supplement throughout such year (or since the Closing Date, in the case of the
first such Officers' Certificate), or, if there has been a material default in
the performance of any such obligation, specifying each such default known to
such officer and the nature and status thereof.
(b) The Servicer will deliver to the Rating Agencies, the Owner
Trustee and the Indenture Trustee on or before April 30 of each calendar year,
beginning with April 30, 2004, an Officers' Certificate substantially in the
form of Exhibit B with respect to the ERISA plans maintained or sponsored by the
Servicer.
SECTION 7.12 POSTMATURITY TERM EXTENSION. Consistent with its Customary
Servicing Practices, the Servicer may, in its discretion, grant a Postmaturity
Term Extension with respect to any Transaction Lease. If the Servicer grants a
Postmaturity Term Extension with respect to a Transaction Lease, then the
Servicer shall direct the SUBI Trustee and the Servicer to reallocate the Unit
related to such Transaction Lease from the Transaction SUBI Portfolio to the UTI
Portfolio (if the Servicer is VCI) or to an Other SUBI designated by the
Servicer (if the Servicer is not VCI) on the Payment Date following the
beginning of the Collection Period during which such Postmaturity Term Extension
was granted. In consideration for such reallocation, the Servicer shall make a
payment to the Issuer equal to the Securitization Value of such Unit as of the
end of the Collection Period preceding such Payment Date by depositing such
amount into the Collection Account prior to 11:00 a.m., New York City time, on
such Payment Date.
SECTION 7.13 INSURANCE POLICIES; ADDITIONAL INSUREDS. The Servicer shall
cause all policies of insurance required to be maintained pursuant to Section
2.9 of the Servicing Agreement to name the Transferor, the Issuer, the Owner
Trustee and the Indenture Trustee as additional insureds.
SECTION 7.14 SECURITY DEPOSITS. In accordance with Section 2.4 of the
Servicing Agreement, on the Payment Date related to the Collection Period in
which a Security Deposit (as defined in the Servicing Agreement) becomes a
Collection, the Servicer shall deposit such amounts in the Collection Account.
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ARTICLE VIII
TERMINATION OF SERVICER
SECTION 8.1 TERMINATION OF SERVICER AS TO TRANSACTION SUBI PORTFOLIO.
(a) Upon the occurrence and continuation of any Servicer
Replacement Event, the Servicer shall provide to the Indenture Trustee, the
Owner Trustee, the Administrator and each Rating Agency prompt notice specifying
such Servicer Replacement Event, together with a description of its efforts to
perform its obligations. The Servicer may not resign except in accordance with
Section 2.10(a) of the Servicing Agreement.
(b) If a Servicer Replacement Event shall have occurred and be
continuing, the SUBI Trustee on behalf of the holder of the Transaction SUBI
Certificate, shall, at the direction of the Required Related Holders, by notice
given to the Servicer, the Owner Trustee, the Indenture Trustee, the
Administrator and each Rating Agency, terminate the rights and obligations of
the Servicer under this Transaction SUBI Servicing Supplement and the Servicing
Agreement with respect to the Transaction SUBI and the Included Units. In the
event the Servicer is removed or resigns as Servicer with respect to servicing
the Transaction SUBI Assets, the Required Related Holders shall appoint a
successor Servicer. With respect to any Servicer Replacement Event, the SUBI
Trustee, acting on the direction of the Required Related Holders may waive any
default of the Servicer. For purposes of this Section, so long as the Lien of
the Indenture is in place, the "Required Related Holders" shall be deemed to be
the Indenture Trustee, acting at the direction of the Noteholders holding not
less than 66-2/3% of the Outstanding Notes and thereafter, the Owner Trustee,
acting at the direction of the Majority Certificateholders.
(c) If replaced, the Servicer agrees that it will use
commercially reasonable efforts to effect the orderly and efficient transfer of
the servicing of the Transaction Units to a successor Servicer.
(d) Upon the effectiveness of the assumption by the successor
Servicer of its duties pursuant to this Section 8.1, the successor Servicer
shall be the successor in all respects to the Servicer in its capacity as
Servicer under the Servicing Agreement with respect to the Transaction SUBI
Portfolio, and shall be subject to all the responsibilities, duties and
liabilities relating thereto, except with respect to the obligations of the
predecessor Servicer that survive its termination as Servicer as set forth in
Section 8.1(e). No Servicer shall resign or be relieved of its duties under the
Servicing Agreement, as Servicer of the Transaction SUBI Portfolio, until a
newly appointed Servicer for the Transaction SUBI Portfolio shall have assumed
the responsibilities and obligations of the resigning or terminated Servicer
under this Transaction SUBI Servicing Supplement. In the event of a replacement
of VCI as Servicer, the Required Related Holders shall cause the successor
Servicer to agree to indemnify VCI against any losses, liabilities, damages or
expenses (including attorneys' fees) as a result of the negligence or willful
misconduct of such successor Servicer. The predecessor Servicer shall be
entitled to receive reimbursement for any outstanding Advances made with respect
to the Transaction Units to the extent funds are available therefor in
accordance with the Indenture.
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(e) No termination or resignation of the Servicer as to the
Transaction SUBI Portfolio shall affect the obligations of the Servicer pursuant
to Section 2.7(c) of the Servicing Agreement; provided that following the
replacement of the Servicer pursuant to this Section 8.1, such Servicer shall
have no duties, responsibilities or other obligations hereunder with respect to
matters arising after such replacement.
SECTION 8.2 NO EFFECT ON OTHER PARTIES. Upon any termination of the
rights and powers of the Servicer with respect to the Transaction SUBI Portfolio
pursuant to Section 8.1 hereof, or upon any appointment of a successor Servicer
with respect to the Transaction SUBI Portfolio, all the rights, powers, duties
and obligations of the Origination Trustees, the UTI Holder and the Settlor
under the Origination Trust Agreement, the Servicing Agreement, the Transaction
SUBI Supplement, any other SUBI Supplement, any other SUBI Servicing Agreement
Supplement or any other Origination Trust Document shall remain unaffected by
such termination or appointment and shall remain in full force and effect
thereafter, except as otherwise expressly provided herein or therein.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 AMENDMENT.
(a) Notwithstanding any provision of the Servicing Agreement, the
Servicing Agreement, as supplemented by this Transaction SUBI Servicing
Supplement, to the extent that it deals solely with the Transaction SUBI and the
Transaction SUBI Portfolio, may be amended in accordance with this Section 9.1.
(b) The Servicing Agreement (other than this Transaction SUBI
Servicing Supplement) may be amended by the Initial Beneficiary, without the
consent of any other Person, to cure any ambiguity or defect, to correct or
supplement any provisions in the Servicing Agreement or for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions in the Servicing Agreement or of modifying in any manner the rights
of the parties hereto; provided that such action shall not, as evidenced by an
Opinion of Counsel delivered no later than ten (10) Business Days after the
execution of any such amendment to the Transferor, the Owner Trustee, the
Indenture Trustee and the Origination Trustees, adversely affect the interests
of the Transferor, the Noteholders, the Indenture Trustee or the Origination
Trustees (as such and in their respective individual capacities).
(c) This Transaction SUBI Servicing Supplement may be amended
without the consent of the Noteholders or any other Person in any respect by the
parties hereto including (without limitation) to cure any ambiguity, correct or
supplement any provision in this Transaction SUBI Servicing Supplement, change
in any manner or eliminate any of the provisions in this Transaction Servicing
SUBI Supplement or modify the rights of the parties to this Transaction SUBI
Servicing Supplement; provided that such amendment shall not, in the good faith
judgment of the parties hereto, materially and adversely affect the interests of
the Noteholders. Without limiting the foregoing, any term or provision of this
Transaction SUBI Servicing Supplement may be amended by the parties hereto with
the consent of the Indenture Trustee; provided that such amendment shall not, as
evidenced by an Opinion of Counsel
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delivered to the Indenture Trustee, materially and adversely affect the
interests of the Noteholders.
(d) Notwithstanding anything herein to the contrary, any term or
provision of this Transaction SUBI Servicing Supplement may be amended by the
parties hereto without the consent of any of the Noteholders or any other Person
to add, modify or eliminate such provisions as may be necessary or advisable in
order to 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 the Rating Agency Condition shall have been satisfied.
(e) Prior to the execution of any such amendment, the Initial
Beneficiary shall furnish at least ten (10) Business Days' prior written
notification (or, if ten (10) days' advance notice is impracticable, as much
advance notice as is practicable) of the substance of such amendment (together
with a copy of the related Opinion of Counsel, if any) to the Transferor, the
Issuer, the Indenture Trustee, the Owner Trustee, the Origination Trustees and
each Rating Agency; provided that the Initial Beneficiary shall have no
obligation to furnish any Rating Agency with prior written notice of the
substance of any amendment to the Servicing Agreement. No later than ten (10)
Business Days after the execution of any such amendment, the Initial Beneficiary
shall furnish a copy of such amendment to each Rating Agency, the Transferor,
the Issuer, the Owner Trustee, the Origination Trustees and the Indenture
Trustee.
(f) Prior to the execution of any amendment to this Transaction
SUBI Servicing Supplement, the Transferor, the Owner Trustee, the Indenture
Trustee and the Origination Trustees 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 the Servicing Agreement or this
Transaction SUBI Servicing Supplement and that all conditions precedent to the
execution and delivery of such amendment have been satisfied.
SECTION 9.2 GOVERNING LAW. THIS TRANSACTION SUBI SERVICING SUPPLEMENT
SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, INCLUDING ALL MATTERS OF
CONSTRUCTION, VALIDITY AND PERFORMANCE (INCLUDING SECTIONS 5-1401 AND 5-1402 OF
THE NEW YORK GENERAL OBLIGATIONS LAW BUT EXCLUDING TO THE MAXIMUM EXTENT
PERMITTED BY LAW ALL OTHER CHOICE OF LAW AND CONFLICTS OF LAW RULES).
SECTION 9.3 NOTICES. The notice provisions of the Servicing Agreement
shall apply equally to this Transaction SUBI Servicing Supplement.
SECTION 9.4 THIRD-PARTY BENEFICIARIES. The Issuer and the Indenture
Trustee, as holder and pledgee, respectively, of the Transaction SUBI
Certificate, and their respective successors, permitted assigns and pledgees are
third-party beneficiaries of the obligations of the parties hereto and may
directly enforce the performance of any of such obligations hereunder.
SECTION 9.5 SEVERABILITY. If one or more of the provisions of this
Transaction SUBI Servicing Supplement shall be for any reason whatever held
invalid or unenforceable, such provisions shall be deemed severable from the
remaining covenants, agreements and provisions of this Transaction SUBI
Servicing Supplement, and such invalidity or unenforceability shall in
10
no way affect the validity or enforceability of such remaining covenants,
agreements and provisions, or the rights of any parties hereto. To the extent
permitted by law, the parties hereto waive any provision of law that renders any
provision of this Transaction SUBI Servicing Supplement invalid or unenforceable
in any respect.
SECTION 9.6 BINDING EFFECT. The provisions of the Servicing Agreement
and this Transaction SUBI Servicing Supplement, insofar as they relate to the
Transaction SUBI Portfolio, shall be binding upon and inure to the benefit of
the respective successors and permitted assigns of the parties hereto.
SECTION 9.7 ARTICLE AND SECTION HEADINGS. The article and section
headings herein are for convenience of reference only, and shall not limit or
otherwise affect the meaning hereof.
SECTION 9.8 EXECUTION IN COUNTERPARTS. This Transaction SUBI Servicing
Supplement may be executed in any number of counterparts, each of which so
executed and delivered shall be deemed to be an original, but all of which shall
together constitute but one and the same instrument.
SECTION 9.9 FURTHER ASSURANCES. Each party will do such acts, and
execute and deliver to any other party such additional documents or instruments,
as may be reasonably requested in order to effect the purposes of this
Transaction SUBI Servicing Supplement and to better assure and confirm unto the
requesting party its rights, powers and remedies hereunder.
SECTION 9.10 EACH SUBI SEPARATE; ASSIGNEES OF SUBI. Each party hereto
acknowledges and agrees (and each holder or pledgee of the Transaction SUBI, by
virtue of its acceptance of such Transaction SUBI or pledge thereof acknowledges
and agrees) that (a) the Transaction SUBI is a separate series of the
Origination Trust as provided in Section 3806(b)(2) of Chapter 38 of Title 12 of
the Delaware Code, 12 Del. Code Section 3801 et seq., (b)(i) the debts,
liabilities, obligations and expenses incurred, contracted for or otherwise
existing with respect to the Transaction SUBI or the Transaction SUBI Portfolio
shall be enforceable against the Transaction SUBI Portfolio only and not against
any Other SUBI Assets or the UTI Portfolio and (ii) the debts, liabilities,
obligations and expenses incurred, contracted for or otherwise existing with
respect to any Other SUBI, any Other SUBI Portfolio, the UTI or the UTI
Portfolio shall be enforceable against such Other SUBI Portfolio or the UTI
Portfolio only, as applicable, and not against the Transaction SUBI or any
Transaction SUBI Assets, (c) except to the extent required by law, UTI Assets or
SUBI Assets with respect to any SUBI (other than the Transaction SUBI) shall not
be subject to the claims, debts, liabilities, expenses or obligations arising
from or with respect to the Transaction SUBI, in respect of such claim, (d)(i)
no creditor or holder of a claim relating to the Transaction SUBI or the
Transaction SUBI Portfolio shall be entitled to maintain any action against or
recover any assets allocated to the UTI or the UTI Portfolio or any Other SUBI
or the assets allocated thereto, and (ii) no creditor or holder of a claim
relating to the UTI, the UTI Portfolio or any SUBI other than the Transaction
SUBI or any SUBI Assets other than the Transaction SUBI Portfolio shall be
entitled to maintain any action against or recover any assets allocated to the
Transaction SUBI, and (e) any purchaser, assignee or pledgee of an interest in
the Transaction SUBI or, the Transaction SUBI Certificate, must, prior to or
contemporaneously with the grant of any such assignment, pledge or security
interest, (i) give to the Origination Trust a non-petition covenant
substantially similar to that set forth in Section 6.9
11
of the Origination Trust Agreement, and (ii) execute an agreement for the
benefit of each holder, assignee or pledgee from time to time of the UTI or UTI
Certificate and any Other SUBI or Other SUBI Certificate to release all claims
to the assets of the Origination Trust allocated to the UTI and each Other SUBI
Portfolio and, in the event that such release is not given effect, to fully
subordinate all claims it may be deemed to have against the assets of the
Origination Trust allocated to the UTI Portfolio and each Other SUBI Portfolio.
SECTION 9.11 NO PETITION. With respect to each Bankruptcy Remote Party,
each party hereto (and each holder and pledgee of the Transaction SUBI, by
virtue of its acceptance of such SUBI or pledge thereof) agrees that, prior to
the date which is one year and one day after payment in full of all obligations
under each Financing, (i) no party hereto shall authorize such 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, 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 any party hereto or any other creditor of
such Bankruptcy Remote Party, and (ii) none of the parties hereto shall 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.
SECTION 9.12 SUBMISSION TO JURISDICTION. 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 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 9.3 of this
Transaction SUBI Servicing Supplement; and
(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 xxx in any other jurisdiction.
12
SECTION 9.13 LIMITATION OF LIABILITY OF U.S. BANK. Notwithstanding
anything contained herein to the contrary, this instrument has been signed by
U.S. Bank not in its individual capacity but solely in its capacities as
Administrative Trustee and as SUBI Trustee and in no event shall U.S. Bank in
its individual capacity have any liability for the representations, warranties,
covenants, agreements or other obligations of the Origination Trust hereunder,
as to all of which recourse shall be had solely to the assets of the Origination
Trust.
[SIGNATURES ON THE FOLLOWING PAGE]
13
IN WITNESS WHEREOF, the parties hereto have caused this Transaction SUBI
Servicing Supplement to be duly executed by their respective officers duly
authorized as of the day and year first above written.
VW CREDIT LEASING, LTD.
By: U.S. Bank National Association, not in
its individual capacity but solely as
Administrative Trustee
By:
------------------------------------------
Name:
----------------------------------------
Title:
---------------------------------------
S-1
VW CREDIT, INC., as Servicer
By:
------------------------------------------
Name:
----------------------------------------
Title:
---------------------------------------
By:
------------------------------------------
Name:
----------------------------------------
Title:
---------------------------------------
S-2
U.S. BANK NATIONAL ASSOCIATION, not in its
individual capacity but solely as SUBI
Trustee
By:
------------------------------------------
Name:
----------------------------------------
Title:
---------------------------------------
S-3
EXHIBIT A
FORM OF ANNUAL OFFICER'S CERTIFICATE
(As required to be delivered on or before April 30 of each
calendar year beginning with April 30, 2004, pursuant to
Section 7.11 of the Transaction SUBI Servicing Supplement)
VW CREDIT, INC.
-----------------------------------------------
VOLKSWAGEN AUTO LEASE TRUST 2002-A
-----------------------------------------------
The undersigned, duly authorized representatives of VW Credit,
Inc.("VCI"), as Servicer, pursuant to the Transaction SUBI Supplement 2002-A to
Servicing Agreement dated as of November [ ], 2002 (as amended and supplemented,
or otherwise modified and in effect from time to time, the "Transaction SUBI
Servicing Supplement"), by and among VW CREDIT LEASING, LTD., VCI, as Servicer,
and U.S. BANK NATIONAL ASSOCIATION, not in its individual capacity but solely as
SUBI Trustee, do hereby certify that:
1. VCI is, as of the date hereof, the Servicer under the
Transaction SUBI Servicing Supplement.
2. The undersigned are Authorized Officers of the Servicer.
3. A review of the activities of the Servicer during the calendar
year ended December 31, ____, and of its performance under the Transaction SUBI
Servicing Supplement was conducted under our supervision.
4. Based on such review, the Servicer has, to the best of our
knowledge, performed in all material respects all of its obligations under the
Transaction SUBI Servicing Supplement throughout such year and no default in the
performance of such obligations has occurred or is continuing except as set
forth in paragraph 5 below.
5. The following is a description of each default in the
performance of the Servicer's obligations under the provisions of the
Transaction SUBI Servicing Supplement known to us to have been made by the
Servicer during the year ended December 31, ____, which sets forth in detail the
(a) nature of each such default, (b) the action taken by the Servicer, if any,
to remedy each such default and (c) the current status of each such default: (If
applicable, insert "None.")
Capitalized terms used but not defined herein are used as defined
in the Transaction SUBI Servicing Supplement.
A-1
IN WITNESS WHEREOF, each of the undersigned has duly executed
this Certificate this ____ day of __________.
By:
---------------------------------
Name:
Title:
By:
---------------------------------
Name:
Title:
A-2
EXHIBIT B
FORM OF ANNUAL ERISA CERTIFICATION
(As required to be delivered on or before April 30 of each
calendar year beginning with April 30, 2004, pursuant to
Section 7.11 of the Transaction SUBI Servicing Supplement)
VW CREDIT, INC.
-----------------------------------------------
VOLKSWAGEN AUTO LEASE TRUST 2002-A
-----------------------------------------------
The undersigned, duly authorized representatives of VW Credit,
Inc. ("VCI"), as Servicer, pursuant to the Transaction SUBI Supplement 2002-A to
Servicing Agreement dated as of November [ ], 2002 (as amended and supplemented,
or otherwise modified and in effect from time to time, the "Transaction SUBI
Servicing Supplement"), by and among VW CREDIT LEASING, LTD., VCI, as Servicer,
and U.S. BANK NATIONAL ASSOCIATION, not in its individual capacity but solely as
SUBI Trustee, do hereby certify that:
1. The undersigned are Authorized Officers of VCI.
2. As of the end of VCI's preceding fiscal year, with respect to the
ERISA plans maintained or sponsored by VCI or any of VCI's ERISA
Affiliates (i.e., any member of VCI's "controlled group," within the
meaning of Section 4001 of ERISA) (collectively, the "Plans"):
(a) Plan assets exceed the present value of accrued benefits
under each of the Plans as of the close of the most recent Plan
year, as reported in the financial statements for such Plan filed
with the most recent Form 5500 for such Plan (the "Most Recent
Plan Financial Statements").
(b) Neither VCI nor any of its ERISA Affiliates (i) anticipates
that the value of the assets of any Plan it maintains would not
be sufficient to cover any Current Liability; or (ii) is
contemplating benefit improvements with respect to any Plan then
maintained by any such entity or the establishment of any new
Plan, either of which would cause any such entity to maintain a
Plan with Unfunded Current Liability. The term "Current
Liability" means, with respect to any Plan, the present value of
the accrued benefits under the Plan, as set forth in the Most
Recent Plan Financial Statements. The term "Unfunded Current
Liability" of any Plan means the amount, if any, by which the
present value of the accrued benefits
B-1
under the Plan, as reported in the Most Recent Plan Financial
Statements, exceeds the value of the Plan's assets, as set forth
in the Most Recent Plan Financial Statements.
(c) If all of the Plans (other than a multiemployer Plan) were
terminated (disregarding any Plans with surpluses), the unfunded
liabilities at such date with respect to such Plans, their
participants or beneficiaries, and the PBGC, would not have
exceeded 5% of the consolidated net worth of Volkswagen AG or 25%
of the consolidated net worth of Volkswagen of America, Inc. at
such date.
(d) If VCI or any of VCI's ERISA Affiliates withdrew or were to
have withdrawn from all multiemployer Plans at such date, the
aggregate withdrawal liability would not have exceeded 5% of the
consolidated net worth of Volkswagen AG or 25% of the
consolidated net worth of Volkswagen of America, Inc. at such
date.
(e) No accumulated funding deficiency or waived funding
deficiency as defined in section 412 of the IRC or under any
multiemployer plan or collective bargaining agreement existed at
such date and there was no failure to make any required
contribution under the minimum funding requirements of the
Internal Revenue Code.
Capitalized terms used but not defined herein are used as defined
in the Transaction SUBI Servicing Supplement.
IN WITNESS WHEREOF, each of the undersigned has duly executed
this Certificate this ____ day of __________.
By:
---------------------------------
Name:
Title:
By:
---------------------------------
Name:
Title:
B-2
