EXHIBIT 10.5
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SUBI SALE AGREEMENT
dated as of March 3, 2005
between
VW CREDIT, INC.,
as Seller
and
VOLKSWAGEN AUTO LEASE UNDERWRITTEN FUNDING, LLC,
as Buyer
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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 Subordinated Note................................................................ 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..................................................................... 8
SECTION 3.6 Amendment........................................................................ 8
SECTION 3.7 Waivers.......................................................................... 9
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 No Waiver; Cumulative Remedies................................................... 10
SECTION 3.13 Nonpetition Covenant............................................................. 10
SECTION 3.14 Each SUBI Separate; Assignees of SUBI............................................ 10
SECTION 3.15 Submission to Jurisdiction; Waiver of Jury Trial................................. 11
Schedule I Representations and Warranties with Respect to Units
Schedule II Perfection Representations, Warranties and Covenants
SUBI SALE AGREEMENT
THIS SUBI SALE AGREEMENT is made and entered into as of March 3, 2005 (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 2005-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 March 3, 2005 (as amended, supplemented or modified from time to
time, the "Indenture"), between Volkswagen Auto Lease Trust 2005-A, a Delaware
statutory trust (the "Issuer"), and JPMorgan Chase Bank, 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 Sale Agreement
"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), (x)
such excess shall automatically be considered to have been contributed to the
Buyer by the Seller as a capital contribution or (y) at the option of the Seller
(as evidenced by notice to the Buyer), to the extent the Buyer would not be left
with insufficient capital to meet, with a reasonable degree of certainty, its
reasonably foreseeable obligations as they come due, the Buyer may increase the
principal amount due and outstanding under the Subordinated Note (as defined
below). As of the Closing Date, the Buyer paid in cash $ of the SUBI
Allocation Price, and the Seller contributed to the Buyer such Units as had an
aggregate Securitization Value equal to $ and received the Subordinated Note
(as defined below) in an initial outstanding principal amount of $ .
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, duly organized,
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
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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 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
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other parties. 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 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 Subordinated Note.
(a) On the Closing Date, the Buyer will deliver to the Seller a
subordinated promissory note, payable to the order of the Seller (as the same
may be amended, supplemented, endorsed or otherwise modified from time to time,
together with any promissory note issued from time to time in substitution
therefor or renewal thereof, being herein called the "Subordinated Note").
(b) The Seller shall make all appropriate record keeping entries with
respect to the Subordinated Note to reflect the payments on and adjustment of
the Subordinated Note. The Seller's books and records shall constitute
rebuttable presumptive evidence of the principal amount of and accrued interest
on the Subordinated Note at any time, and the Seller hereby promises to xxxx the
Subordinated Note "CANCELED" and return it to the Buyer upon the final payment
thereof.
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.
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(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 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
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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;
(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 notices and other communications provided
for hereunder shall, unless otherwise stated herein, be in writing (including
facsimile communication) and shall be personally delivered or sent by certified
mail, postage prepaid, or by facsimile, to the intended party at the address or
facsimile number of such party set forth under its name on the signature pages
hereof or at such other address or facsimile number as shall be designated by
such party in a written notice to the other parties hereto. All such notices and
communications shall be effective (a) if personally delivered when received, (b)
if sent by certified mail, three Business Days after having been deposited in
the mail, postage prepaid, (c) if sent by overnight courier, one Business Day
after having been given to such courier, and (d) if transmitted by facsimile,
when sent, receipt confirmed by telephone or electronic means.
SECTION 3.4 Choice of Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL, SUBSTANTIVE LAWS OF THE STATE OF NEW
YORK WITHOUT REFERENCE TO THE RULES THEREOF RELATING TO CONFLICTS OF LAW AND THE
OBLIGATIONS,
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RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE
WITH SUCH LAWS.
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
or the Owner Trustee; 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 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.
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(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 the Buyer 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.
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.
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SECTION 3.12 No Waiver; 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 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 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 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)
SUBI Sale Agreement
10
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;
(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
11
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first written above.
VW CREDIT, INC.
By: ________________________________________
Name:___________________________________
Title:__________________________________
By: ________________________________________
Name:___________________________________
Title:__________________________________
Address:
0000 Xxxxxx Xxxx
Xxxxxx Xxxxx, Xxxxxxxx 00000
Attn: Treasurer
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
SUBI Sale Agreement
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VOLKSWAGEN AUTO LEASE
UNDERWRITTEN FUNDING, LLC
By: ________________________________________
Name:___________________________________
Title:__________________________________
By: ________________________________________
Name:___________________________________
Title:__________________________________
Address:
0000 Xxxxxx Xxxx
Xxxxxx Xxxxx, Xxxxxxxx 00000
Attn: Treasurer
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
SUBI Sale Agreement
S-2
SCHEDULE I
REPRESENTATIONS AND WARRANTIES
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 $1,685,393,258.
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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