SUBI SALE AGREEMENT dated as of August 3, 2006 between VW CREDIT, INC., as Seller and VOLKSWAGEN AUTO LEASE UNDERWRITTEN FUNDING, LLC, as Buyer
Exhibit 10.3
dated as of August 3, 2006
between
VW CREDIT, INC.,
as Seller
as Seller
and
VOLKSWAGEN AUTO LEASE UNDERWRITTEN FUNDING, LLC,
as Buyer
as Buyer
TABLE OF CONTENTS
| Page | ||||
ARTICLE I DEFINITIONS |
1 | |||
SECTION 1.1 Certain Terms |
1 | |||
SECTION 1.2 Other Definitional Provisions |
2 | |||
SECTION 1.3 Other Terms |
2 | |||
SECTION 1.4 Computation of Time Periods |
2 | |||
ARTICLE II PURCHASE AND CONTRIBUTION |
2 | |||
SECTION 2.1 Agreement to Sell and Contribute |
2 | |||
SECTION 2.2 Consideration and Payment |
2 | |||
SECTION 2.3 Representations, Warranties and Covenants |
3 | |||
SECTION 2.4 [RESERVED] |
5 | |||
SECTION 2.5 Protection of Title |
5 | |||
SECTION 2.6 Other Adverse Claims or Interests |
6 | |||
ARTICLE III MISCELLANEOUS |
6 | |||
SECTION 3.1 Transfers Intended as Sale; Security Interest |
6 | |||
SECTION 3.2 Specific Performance |
7 | |||
SECTION 3.3 Notices, Etc |
7 | |||
SECTION 3.4 Choice of Law |
7 | |||
SECTION 3.5 Counterparts |
7 | |||
SECTION 3.6 Amendment |
7 | |||
SECTION 3.7 Waivers |
8 | |||
SECTION 3.8 Entire Agreement |
9 | |||
SECTION 3.9 Severability of Provisions |
9 | |||
SECTION 3.10 Binding Effect; Assignability |
9 | |||
SECTION 3.11 Acknowledgment and Agreement |
9 | |||
SECTION 3.12 Cumulative Remedies |
9 | |||
SECTION 3.13 Nonpetition Covenant |
9 | |||
SECTION 3.14 Each SUBI Separate; Assignees of SUBI |
10 | |||
SECTION 3.15 Submission to Jurisdiction; Waiver of Jury Trial |
10 | |||
Schedule I Representations and Warranties with Respect to Units |
||||
Schedule II Perfection Representations, Warranties and Covenants |
||||
-i-
THIS SUBI SALE AGREEMENT is made and entered into as of August 3, 2006 (as amended,
supplemented or modified from time to time, this “Agreement”) by VW CREDIT, INC., a
Delaware corporation (the “Seller”), and VOLKSWAGEN AUTO LEASE UNDERWRITTEN FUNDING, LLC, a
Delaware limited liability company (the “Buyer”).
WITNESSETH:
WHEREAS, VW Credit Leasing, Ltd. is a Delaware statutory trust (the “Origination
Trust”) formed and operated pursuant to that certain Trust Agreement dated as of June 2, 1999
(as amended, modified or supplemented from time to time, the “Origination Trust Agreement”)
for the purpose, among other things, of acquiring title to Units;
WHEREAS, on the date hereof, the Seller, as owner of the entire undivided interest in the
Origination Trust (the “UTI Portfolio”), and U.S. Bank National Association, as UTI Trustee
(in such capacity, the “UTI Trustee”), SUBI Trustee (in such capacity, the “SUBI
Trustee”) and Administrative Trustee (in such capacity, the “Administrative Trustee”;
together with the UTI Trustee, the SUBI Trustee and Wilmington Trust Company, as Delaware Trustee
(the “Delaware Trustee”), the “Origination Trustees”), are entering into that
certain Transaction SUBI Supplement 2006-A to Origination Trust Agreement (as amended, modified or
supplemented from time to time, the “Transaction SUBI Supplement”) to create a special unit
of beneficial interest (the “Transaction SUBI”); and
WHEREAS, the Seller desires to sell to the Buyer, and the Buyer desires to acquire, the
Seller’s entire beneficial ownership interest in (A) the Units allocated to the Transaction SUBI
(the “Transaction SUBI Portfolio”) and (B) the certificate issued as evidence thereof (the
“Transaction SUBI Certificate”);
NOW, THEREFORE, in consideration of the premises and the mutual agreements set forth herein,
the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Certain Terms. Terms defined in Appendix A to the Indenture, dated as of
August 3, 2006 (as amended, supplemented or modified from time to time, the “Indenture”),
between Volkswagen Auto Lease Trust 2006-A, a Delaware statutory trust (the “Issuer”), and
Citibank, N.A., as indenture trustee, are, unless otherwise defined herein or unless the context
otherwise requires, used herein as defined therein. In addition, the following terms shall have
the following meanings (such terms applicable to both the singular and plural form):
“Allocation Price” means, with respect to any Unit, an amount equal to 100% of the
Securitization Value thereof as of the Cut-Off Date.
“SUBI Allocation Price” means, with respect to all Units to be allocated to the
Transaction SUBI in accordance with Section 2.1 on the Closing Date, the aggregate of the
Allocation Prices for all Units to be so allocated on such date.
SECTION 1.2 Other Definitional Provisions.
(a) Each term defined in the singular form in this Agreement shall mean the plural thereof
when the plural form of such term is used in this Agreement or any certificate, report or other
document made or delivered pursuant hereto, and each term defined in the plural form in shall mean
the singular thereof when the singular form of such term is used herein or therein.
(b) The words “hereof”, “herein”, “hereunder” and similar terms when used in this Agreement
shall refer to this Agreement as a whole and not to any particular provision of this Agreement, and
article, section, subsection, schedule and exhibit references herein are references to articles,
sections, subsections, schedules and exhibits to or of this Agreement unless otherwise specified.
SECTION 1.3 Other Terms. All accounting terms not specifically defined herein or in
Appendix A to the Indenture shall be construed in accordance with GAAP. All terms used in Article
9 of the UCC and not specifically defined herein or in Appendix A to the Indenture are used herein
as defined in such Article 9.
SECTION 1.4 Computation of Time Periods. Unless otherwise stated in this Agreement,
in the computation of a period of time from a specified date to a later specified date, the word
“from” means “from and including” and the words “to” and “until” each mean “to but excluding”.
ARTICLE II
PURCHASE AND CONTRIBUTION
SECTION 2.1 Agreement to Sell and Contribute.
On the terms and subject to the conditions set forth in this Agreement, on the date hereof,
the Seller hereby:
(a) transfers, assigns, sets over, sells and otherwise conveys to the Buyer, and the Buyer
hereby purchases from the Seller, all of the Seller’s right, title and interest in and to the
Transaction SUBI Certificate and the Transaction SUBI, including, but not limited to, all
Collections thereunder after the Cut-Off Date; and
(b) directs the UTI Trustee and the Servicer to identify from the Origination Trust Assets
allocable to the UTI Interest, and to allocate to the Transaction SUBI Portfolio represented by the
Transaction SUBI Certificate, the Transaction SUBI Assets identified in Section 11.1 of the
Transaction SUBI Supplement.
SECTION 2.2 Consideration and Payment. In consideration of the transfer of the
Transaction SUBI transferred to the Buyer on the Closing Date, the Buyer shall pay to the Seller
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on the Closing Date the SUBI Allocation Price with respect thereto by (i) making a cash
payment to the Seller to the extent that the Buyer has received a cash payment from the Issuer
pursuant to the SUBI Transfer Agreement and (ii) if the SUBI Allocation Price to be paid for the
Units exceeds the amount of any cash payment for the account of the Seller on such day pursuant to
clause (i), such excess shall automatically be considered to have been contributed to the
Buyer by the Seller as a capital contribution. As of the Closing Date, the Buyer paid in cash
$1,487,545,292 of the SUBI Allocation Price, and the Seller contributed to the Buyer such Units as
had an aggregate Securitization Value equal to $160,834,901.
SECTION 2.3 Representations, Warranties and Covenants.
(a) The Seller hereby represents and warrants to the Buyer that, as of the date hereof:
(i) Existence and Power. The Seller is a corporation and the Origination Trust is a
statutory trust, in each case validly existing and in good standing under the laws of its
state of organization, and each of the Seller and the Origination Trust has all power and
authority required to carry on its business as it is now conducted. Each of the Seller and
the Origination Trust 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 Seller or the Origination
Trust, respectively, taken as a whole.
(ii) Corporate Authorization and No Contravention. The execution, delivery and
performance by each of the Seller and the Origination Trust of each Transaction Document to
which it is a party (i) have been duly authorized by all necessary corporate action, (ii) do
not contravene or constitute a default under (A) any applicable law, rule or regulation, (B)
its organizational documents 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 the Transaction SUBI or give cause for the acceleration of any indebtedness of the
Seller or the Origination Trust.
(iii) 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 Seller or the Origination Trust 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.
(iv) Binding Effect. Each Transaction Document to which the Seller or the Origination
Trust is a party constitutes the legal, valid and binding obligation of such Person
enforceable against such Person 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.
(v) Ownership and Transfer of Transaction SUBI. Immediately preceding its sale of the
Transaction SUBI to the Buyer, the Seller was the owner of the Transaction SUBI, free and
clear of any Adverse Claim, and after such sale of the Transaction SUBI
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to the Buyer, the Buyer shall at all times be entitled, with respect to the Transaction
SUBI, to all of the rights and benefits of a holder of a SUBI under the Origination Trust
Documents.
(vi) Applicable Law. Each of the Seller and the Origination Trust is in compliance
with all Applicable Laws, the failure to comply with which would have a material adverse
effect.
(vii) Litigation. There are no actions, suits or proceedings pending or, to the
knowledge of the Seller, threatened against the Seller before or by any Governmental
Authority that (i) question the validity or enforceability of this Agreement or adversely
affect the ability of the Seller to perform its obligations hereunder or (ii) individually
or in the aggregate would have a material adverse effect. Neither the Seller nor the
Origination Trust is in default with respect to any orders of any Governmental Authority,
the default under which individually or in the aggregate would have a material adverse
effect.
(viii) Status of Seller. The Seller is not an “investment company” within the meaning
of the Investment Company Act of 1940, as amended. The Seller is not subject to regulation
as a “holding company”, an “affiliate” of a “holding company”, or a “subsidiary company” of
a “holding company”, within the meaning of the Public Utility Holding Company Act of 1935,
as amended.
(ix) Status of Origination Trust. The Origination Trust is not an “investment company”
within the meaning of the Investment Company Act of 1940, as amended. The Origination Trust
is not subject to regulation as a “holding company”, an “affiliate” of a “holding company”,
or a “subsidiary company” of a “holding company”, within the meaning of the Public Utility
Holding Company Act of 1935, as amended.
The representations and warranties set forth in this Section 2.3(a) shall speak only
as of the date hereof and shall survive the sale of the Transaction SUBI hereunder.
(b) The Seller hereby represents and warrants to the Buyer with respect to each Unit being
allocated to the Transaction SUBI on the Closing Date that, as of the Cut-Off Date or the Closing
Date, as applicable, the representations and warranties set forth on Schedule I hereto were
true and correct with respect to such Unit. The representation and warranties set forth on
Schedule I hereto shall survive the allocation of such Unit hereunder.
(c) Upon discovery by the Buyer or the Seller of a breach of any of the representations and
warranties set forth in Section 2.3(b) at the time such representations and warranties were
made which materially and adversely affects the interests of the Issuer in the related Unit, the
party discovering such breach shall give prompt written notice thereof to the other parties,
provided that, delivery of the Servicer’s Certificate shall be deemed to constitute prompt notice
by the Seller and the Buyer of such breach. If the Seller does not correct or cure such breach
prior to the end of the Collection Period after the date that the Seller was notified of such
breach, then the Seller shall direct the SUBI Trustee and the Servicer to reallocate the
noncompliant Units from the Transaction SUBI Portfolio to the UTI Portfolio on the Payment
4
Date following the end of such Collection Period. In consideration for such reallocation, the
Seller shall make a payment to the Buyer equal to the Securitization Value of such Unit as of the
beginning 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. It is understood
and agreed that the obligation of the Seller to reallocate any Unit as to which such a breach has
occurred and is continuing as described above and to make the related reallocation payment shall
constitute the sole remedy respecting such breach available to the Buyer.
(d) Perfection Representations. The representations, warranties and covenants set
forth on Schedule II hereto shall be a part of this Agreement for all purposes.
Notwithstanding any other provision of this Agreement or any other Transaction Document, the
perfection representations contained in Schedule II shall be continuing, and remain in full
force and effect until such time as all obligations under the Indenture have been finally and fully
paid and performed. The parties to this Agreement: (i) shall not waive any of the perfection
representations contained in Schedule II; (ii) shall provide the Rating Agencies with
prompt written notice of any breach of perfection representations contained in this Schedule and
(iii) shall not waive a breach of any of the perfection representations contained in Schedule
II.
SECTION 2.4 [RESERVED]
SECTION 2.5 Protection of Title.
(a) Filings. The Seller shall file such financing statements and cause to be filed
such continuation and other statements, all in such manner and in such places as may be required by
law fully to preserve, maintain and protect the interest of the Buyer under this Agreement in the
Transaction SUBI. The Seller shall deliver (or cause to be delivered) to the Buyer file-stamped
copies of, or filing receipts for, any document filed as provided above, as soon as available
following such filing.
(b) Name Change. The Seller shall not change its name, identity or corporate
structure in any manner that would, could, or might make any financing statement or continuation
statement filed by the Seller in accordance with Section 2.5(a) “seriously misleading”
within the meaning of Section 9-506, 9-507 and 9-508 of the UCC, unless it shall have given the
Buyer at least 30 days’ prior written notice thereof and shall have taken all action prior to
making such change (or shall have made arrangements to take such action substantially
simultaneously with such change, if it is not possible to take such action in advance) reasonably
necessary or advisable in the opinion of the Buyer to amend all previously filed financing
statements or continuation statements described in Section 2.5(a).
(c) Sales Tax. All sales, property, use, transfer or other similar taxes due and
payable upon the purchase of the Transaction SUBI and the beneficial interest in the Units included
in the Transaction SUBI Portfolio by the Buyer will be paid or provided for by the Seller.
(d) Executive Office; Maintenance of Offices. The Seller shall give the Buyer at
least 30 days’ prior written notice of any change of location of the Seller for purposes of Section
9-307 of the UCC and shall have taken all action prior to making such change (or shall have made
arrangements to take such action substantially simultaneously with such change, if it is not
5
possible to take such action in advance) reasonably necessary or advisable in the opinion of
the Buyer to amend all previously filed financing statements or continuation statements described
in Section 2.5(a). The Seller shall at all times maintain each office from which it
services Origination Trust Assets and its principal executive office within the United States of
America.
SECTION 2.6 Other Adverse Claims or Interests. Except for the conveyances and grants
of security interests pursuant to this Agreement and the other Transaction Documents, the Seller
shall not sell, pledge, assign or transfer the Transaction SUBI to any other Person, or grant,
create, incur, assume or suffer to exist any Adverse Claim on any interest therein, and the Seller
shall defend the right, title and interest of the Buyer in, to and under the Transaction SUBI
against all claims of third parties claiming through or under the Seller.
ARTICLE III
MISCELLANEOUS
SECTION 3.1 Transfers Intended as Sale; Security Interest.
(a) Each of the parties hereto expressly intends and agrees that the transfers contemplated
and effected under this Agreement are complete and absolute sales and contributions rather than
pledges or assignments of only a security interest and shall be given effect as such for all
purposes. The sale and contribution of the Transaction SUBI and the Transaction SUBI Certificate
shall be reflected on the Seller’s balance sheet and other financial statements as a sale and
contribution of assets by the Seller. The sales and contributions by the Seller of the Transaction
SUBI and the Transaction SUBI Certificate and the beneficial interest in the Units allocated
thereto hereunder are and shall be without recourse to, or representation or warranty (express or
implied) by, the Seller, except as otherwise specifically provided herein. The limited rights of
recourse specified herein against the Seller are intended to provide a remedy for breach of
representations and warranties relating to the condition of the property sold, rather than to the
collectibility of underlying indebtedness, and therefore are intended to be consistent with
warranties ordinarily given by a seller of goods under Article 2 of the UCC.
(b) Notwithstanding the foregoing, in the event that the Transaction SUBI and the Transaction
SUBI Certificate are held to be property of the Seller, or if for any reason this Agreement is held
or deemed to create a security interest in the Transaction SUBI and the Transaction SUBI
Certificate, then it is intended that:
(i) This Agreement shall be deemed to be a security agreement within the meaning of
Articles 8 and 9 of the New York UCC and the UCC of any other applicable jurisdiction;
(ii) The conveyance provided for in Section 2.1 shall be deemed to be a grant
by the Seller to the Buyer of a security interest in all of its right (including the power
to convey title thereto), title and interest, whether now owned or hereafter acquired, in
and to the Transaction SUBI and the Transaction SUBI Certificate, to secure the performance
of the obligations of the Seller hereunder;
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(iii) The possession by the Buyer or its agent of the Transaction SUBI Certificate
shall be deemed to be “possession by the secured party” or possession by the purchaser or a
person designated by such purchaser, for purposes of perfecting the security interest
pursuant to the New York UCC and the UCC of any other applicable jurisdiction; and
(iv) Notifications to persons holding such property, and acknowledgments, receipts or
confirmations from persons holding such property, shall be deemed to be notifications to, or
acknowledgments, receipts or confirmations from, bailees or agents (as applicable) of the
Buyer for the purpose of perfecting such security interest under applicable law.
SECTION 3.2 Specific Performance. Either party may enforce specific performance of
this Agreement.
SECTION 3.3 Notices, Etc. 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, or by telecopier, and addressed in
each case as set forth in Schedule II to the Indenture or at such other address as shall be
designated by any of the foregoing in a written notice to the other parties hereto. 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.
SECTION 3.4 Choice of Law. 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 3.5 Counterparts. This Agreement may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original, but all of such
counterparts shall together constitute but one and the same instrument.
SECTION 3.6 Amendment.
(a) Any term or provision of this Agreement may be amended by the parties hereto without the
consent of the Indenture Trustee, any Noteholder, the Issuer, the Owner Trustee or any other
Person; provided that (i) any amendment that materially and adversely affects the interests of the
Noteholders shall require the consent of Noteholders evidencing not less than a majority of the
aggregate outstanding principal amount of the Outstanding Notes, voting as a single class, and (ii)
any amendment that materially and adversely affects the interests of the Certificateholders, the
Indenture Trustee or the Owner Trustee shall require the prior written consent of the Persons whose
interests are materially and adversely affected. An amendment shall be deemed not to materially
and adversely affect the interests of the Noteholders if the Rating Agency Condition is satisfied
with respect to such amendment. The consent of the
7
Certificateholders, the Indenture Trustee or the Owner Trustee shall be deemed to have been
given if the Servicer does not receive a written objection from such Person within 10 Business Days
after a written request for such consent shall have been given.
(b) Notwithstanding the foregoing, no amendment shall (i) reduce the interest rate or
principal amount of any Note, or delay the Final Scheduled Payment Date of any Note without the
consent of the Holder of such Note, or (ii) reduce the percentage of the aggregate outstanding
principal amount of the Outstanding Notes, the Holders of which are required to consent to any
matter without the consent of the Holders of at least the percentage of the aggregate outstanding
principal amount of the Outstanding Notes which were required to consent to such matter before
giving effect to such amendment.
(c) Notwithstanding anything herein to the contrary, any term or provision of this Agreement
may be amended by the parties hereto without the consent of any of the Noteholders or any other
Person to add, modify or eliminate any provisions as may be necessary or advisable in order to
comply with or obtain more favorable treatment under or with respect to any law or regulation or
any accounting rule or principle (whether now or in the future in effect); it being a condition to
any such amendment that the Rating Agency Condition shall have been satisfied.
(d) It shall not be necessary for the consent of any Person pursuant to this Section for such
Person to approve the particular form of any proposed amendment, but it shall be sufficient if such
Person consents to the substance thereof.
(e) Prior to the execution of any amendment to this Agreement, the Buyer shall provide each
Rating Agency with written notice of the substance of such amendment. No later than 10 Business
Days after the execution of any amendment to this Agreement, the Buyer shall furnish a copy of such
amendment to each Rating Agency, the Issuer, the Owner Trustee and the Indenture Trustee.
(f) Prior to the execution of any amendment to this Agreement, the Owner Trustee and the
Indenture Trustee shall be entitled to receive and conclusively rely upon an Opinion of Counsel
stating that the execution of such amendment is authorized or permitted by this Agreement and that
all conditions precedent to the execution and delivery of such amendment have been satisfied.
SECTION 3.7 Waivers. No failure or delay on the part of the Buyer, the Servicer, the
Seller, the Issuer or the Indenture Trustee in exercising any power or right hereunder (to the
extent such Person has any power or right hereunder) shall operate as a waiver thereof, nor shall
any single or partial exercise of any such power or right preclude any other or further exercise
thereof or the exercise of any other power or right. No notice to or demand on the Buyer or the
Seller in any case shall entitle it to any notice or demand in similar or other circumstances. No
waiver or approval by either party under this Agreement shall, except as may otherwise be stated in
such waiver or approval, be applicable to subsequent transactions. No waiver or approval under
this Agreement shall require any similar or dissimilar waiver or approval thereafter to be granted
hereunder.
SUBI Sale Agreement
8
SECTION 3.8 Entire Agreement. The Transaction Documents contain a final and complete
integration of all prior expressions by the parties hereto with respect to the subject matter
thereof and shall constitute the entire agreement among the parties hereto with respect to the
subject matter thereof, superseding all prior oral or written understandings. There are no
unwritten agreements among the parties.
SECTION 3.9 Severability of Provisions. If any one or more of the covenants,
agreements, provisions or terms of this Agreement shall be for any reason whatsoever held invalid,
then such covenants, agreements, provisions or terms shall be deemed severable from the remaining
covenants, agreements, provisions or terms of this Agreement and shall in no way affect the
validity or enforceability of the other provisions of this Agreement.
SECTION 3.10 Binding Effect; Assignability. This Agreement shall be binding upon and
inure to the benefit of the Buyer and the Seller and their respective successors and permitted
assigns. The Seller may not assign any of its rights hereunder or any interest herein without the
prior written consent of the Buyer, except as otherwise herein specifically provided. This
Agreement shall create and constitute the continuing obligations of the parties hereto in
accordance with its terms, and shall remain in full force and effect until such time as the parties
hereto shall agree.
SECTION 3.11 Acknowledgment and Agreement. By execution below, the Seller expressly
acknowledges and consents to the sale of the Transaction SUBI and the assignment of all rights and
obligations of the Seller related thereto by the Buyer to the Issuer pursuant to the SUBI Transfer
Agreement and the mortgage, pledge, assignment and grant of a security interest in the Transaction
SUBI by the Issuer to the Indenture Trustee pursuant to the Indenture for the benefit of the
Noteholders. In addition, the Seller hereby acknowledges and agrees that for so long as the Notes
are outstanding, the Indenture Trustee will have the right to exercise all powers, privileges and
claims of the Buyer under this Agreement.
SECTION 3.12 Cumulative Remedies. The remedies herein provided are cumulative and not
exclusive of any remedies provided by law.
SECTION 3.13 Nonpetition Covenant. With respect to each Bankruptcy Remote Party, each
party hereto 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, 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 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. Each of the parties hereto agrees that, prior
SUBI Sale Agreement
9
to the date which is one year and one day after the payment in full of all obligations under
each Financing, it will not institute against, or join any other Person in instituting against, any
Bankruptcy Remote Party an action in bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings or similar proceeding under the laws of the United States or any State of
the United States.
SECTION 3.14 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 § 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 Transaction 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 Other 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 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 Portfolio 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 3.15 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;
SUBI Sale Agreement
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(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 3.3 of this
Agreement;
(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; and
(e) to the extent permitted by applicable law, 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.
[Signature Page Follows]
SUBI Sale Agreement
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year
first written above.
| VW CREDIT, INC. |
||||
| By: | /s/ Xxxxxx Xxxxxxx | |||
| Name: | Xxxxxx Xxxxxxx | |||
| Title: | Treasurer | |||
| By: | /s/ Xxxxxxx Xxxxxxxx | |||
| Name: | Xxxxxxx Xxxxxxxx | |||
| Title: | Assistant Treasurer | |||
SUBI Sale Agreement
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| VOLKSWAGEN AUTO LEASE UNDERWRITTEN FUNDING, LLC |
||||
| By: | /s/ Xxxxxx Xxxxxxx | |||
| Name: | Xxxxxx Xxxxxxx | |||
| Title: | President and Treasurer | |||
| By: | /s/ Xxxxxxx Xxxxxxxx | |||
| Name: | Xxxxxxx Xxxxxxxx | |||
| Title: | Assistant Treasurer | |||
SUBI Sale Agreement
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SCHEDULE I
REPRESENTATIONS AND WARRANTIES
WITH RESPECT TO UNITS
WITH RESPECT TO UNITS
1. Ownership of the Units.
(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 (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.
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.
3. Eligible Units. As of the Cut-Off Date, each Unit included in the Transaction SUBI
Portfolio was an Eligible Unit.
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.
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.
6. Aggregate Securitization Value. As of the Cut-Off Date, the aggregate
Securitization Value of all Transaction Units was $1,648,380,193.
7. New Vehicles. Each Vehicle related to a Unit included in the Transaction SUBI
Portfolio was new Vehicle at the inception of the related Lease.
8. 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.
9. 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.
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SCHEDULE II
PERFECTION REPRESENTATIONS, WARRANTIES AND COVENANTS
In addition to the representations, warranties and covenants contained in the SUBI Sale
Agreement, the Seller hereby represents, warrants, and covenants to the Buyer as follows on the
Closing Date:
1. The SUBI Sale Agreement creates a valid and continuing security interest (as defined in the
applicable UCC) in the Transaction SUBI Certificate in favor of the Buyer, which security interest
is prior to all other Adverse Claims and is enforceable as such as against creditors of and
purchasers from the Seller.
2. The Transaction SUBI Certificate constitutes a “general intangible,” “instrument,” “certificated
security,” or “tangible chattel paper,” within the meaning of the applicable UCC.
3. The Seller owns and has good and marketable title to the Transaction SUBI Certificate free and
clear of any Adverse Claim, claim or encumbrance of any Person, excepting only liens for taxes,
assessments or similar governmental charges or levies incurred in the ordinary course of business
that are not yet due and payable or as to which any applicable grace period shall not have expired,
or that are being contested in good faith by proper proceedings and for which adequate reserves
have been established, but only so long as foreclosure with respect to such a lien is not imminent
and the use and value of the property to which the Adverse Claim attaches is not impaired during
the pendency of such proceeding.
4. The Seller has received all consents and approvals to the sale of the Transaction SUBI
Certificate hereunder to the Buyer required by the terms of the Transaction SUBI Certificate to the
extent that it constitutes an instrument or a payment intangible.
5. The Seller has received all consents and approvals required by the terms of the Transaction SUBI
Certificate, to the extent that it constitutes a securities entitlement, certificated security or
uncertificated security, to the transfer to the Buyer of its interest and rights in the Transaction
SUBI Certificate hereunder.
6. The Seller has caused or will have caused, within ten days after the effective date of the SUBI
Sale Agreement, the filing of all appropriate financing statements in the proper filing office in
the appropriate jurisdictions under applicable law in order to perfect the sale of the Transaction
SUBI Certificate from the Seller to the Buyer and the security interest in the Transaction SUBI
Certificate granted to the Buyer hereunder.
7. To the extent that the Transaction SUBI Certificate constitutes an instrument or tangible
chattel paper, all original executed copies of each such instrument or tangible chattel paper have
been delivered to the Buyer.
8. Other than the transfer of the Transaction SUBI Certificate from the Seller to the Buyer under
the SUBI Sale Agreement and from the Buyer to the Issuer under the SUBI Transfer Agreement and the
security interest granted to the Indenture Trustee pursuant to the Indenture, the Seller has not
pledged, assigned, sold, granted a security interest in, or otherwise conveyed
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the Transaction SUBI Certificate. The Seller has not authorized the filing of, nor is aware of,
any financing statements against the Seller that include a description of collateral covering the
Transaction SUBI Certificate other than any financing statement relating to any security interest
granted pursuant to the Transaction Documents or that has been terminated.
9. No instrument or tangible chattel paper that constitutes or evidences the Transaction SUBI
Certificate has any marks or notations indicating that it has been pledged, assigned or otherwise
conveyed to any Person other than the Indenture Trustee.
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