Exhibit 10.4
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SUBI TRANSFER AGREEMENT
dated as of [_____], [_____]
between
VOLKSWAGEN AUTO LEASE UNDERWRITTEN FUNDING, LLC,
as Seller
and
VOLKSWAGEN AUTO LEASE TRUST 20[__]-[_____],
as Buyer
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TABLE OF CONTENTS
(continued)
PAGE
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ARTICLE I DEFINITIONS.................................................... 2
SECTION 1.1 Certain Terms............................................ 2
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 Transfer Transaction SUBI.......... 2
SECTION 2.2 Consideration and Payment................................ 3
SECTION 2.3 Representations and Warranties........................... 3
SECTION 2.4 Protection of Title...................................... 4
SECTION 2.5 Other Adverse Claims or Interests........................ 5
ARTICLE III MISCELLANEOUS................................................ 5
SECTION 3.1 Transfers Intended as Sale; Security Interest............ 5
SECTION 3.2 Specific Performance..................................... 6
SECTION 3.3 Notices, Etc............................................. 6
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......................................... 8
SECTION 3.9 Severability of Provisions............................... 8
SECTION 3.10 Binding Effect; Assignability............................ 8
SECTION 3.11 Acknowledgment and Agreement............................. 8
SECTION 3.12 No Waiver; Cumulative Remedies........................... 9
SECTION 3.13 Nonpetition Covenant..................................... 9
SECTION 3.14 Each SUBI Separate; Assignees of SUBI.................... 9
SECTION 3.15 Submission to Jurisdiction; Waiver of Jury Trial......... 10
SECTION 3.16 Limitation of Liability of Owner Trustee................. 10
Schedule I Perfection Representations, Warranties and Covenants
-i-
SUBI TRANSFER AGREEMENT
THIS SUBI TRANSFER AGREEMENT (as amended, supplemented or modified from
time to time, this "Agreement") is made and entered into as of [_____], [_____]
by VOLKSWAGEN AUTO LEASE UNDERWRITTEN FUNDING, LLC, a Delaware limited liability
company (the "Seller"), and VOLKSWAGEN AUTO LEASE TRUST 20[__]-[_____], a
Delaware statutory trust (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 purchased the Transaction SUBI and
the Transaction SUBI Certificate (each as defined below) from VW Credit, Inc., a
Delaware corporation ("VCI"), pursuant to a SUBI Sale Agreement (the "SUBI Sale
Agreement");
WHEREAS, the Seller, as depositor, and [_____], as owner trustee, formed
Volkswagen Auto Lease Trust 20[__]-[_____] as a Delaware statutory trust
pursuant to a Trust Agreement;
WHEREAS, on the date hereof, VCI, 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 20[__]-[_____] 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");
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");
WHEREAS, the Seller desires to assign rights under the SUBI Sale Agreement
to the Buyer; and
WHEREAS, the Buyer will finance its acquisition of the Transaction SUBI
Portfolio and the Transaction SUBI Certificate by issuing notes pursuant to an
Indenture dated as of [_____], [_____] (as amended, supplemented or modified
from time to time, the "Indenture") with [_____], as indenture trustee (the
"Indenture Trustee");
NOW, THEREFORE, in consideration of the premises and the mutual agreements
set forth herein, the parties hereto agree as follows:
SUBI Transfer Agreement
ARTICLE I
DEFINITIONS
SECTION 1.1 Certain Terms. Terms defined in Appendix A to the Indenture
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 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 of or to 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 Transfer Transaction SUBI.
On the terms and subject to the conditions set forth in this Agreement, on
the date hereof, the Seller hereby:
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(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) assigns all rights of the Seller under the SUBI Sale Agreement to the
Buyer, including without limitation, the Seller's rights under Section 2.3(c) of
the SUBI Sale Agreement.
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 on the Closing Date the SUBI Allocation Price with
respect thereto by (i) making a cash payment to the Seller to the extent of the
Buyer's net proceeds from the issuance of the Notes 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
$[__________] of the SUBI Allocation Price, and the Seller contributed to the
Buyer such Units as had an aggregate Securitization Value equal to
$[__________].
SECTION 2.3 Representations and Warranties.
(a) The Seller hereby represents and warrants to the Buyer that, as of the
date hereof:
(i) Existence and Power. The Seller is a limited liability company
duly organized, validly existing and in good standing under the laws of its
state of organization and has all power and authority required to carry on
its business as it is now conducted. The Seller 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 taken as a whole.
(ii) Company Authorization and No Contravention. The execution,
delivery and performance by the Seller of each Transaction Document to
which it is a party (i) have been duly authorized by all necessary limited
liability company action and (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.
(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 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 is
a party constitutes the legal, valid and binding obligation of the Seller
enforceable against the
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Seller 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 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. The Seller 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. The Seller is not 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.
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) Perfection Representations. The representations, warranties and
covenants set forth on Schedule I 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 I
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 I; (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 I.
SECTION 2.4 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
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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 limited
liability company structure in any manner that would, could, or might make any
financing statement or continuation statement filed by the Seller in accordance
with Section 2.4(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 2.4(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 2.4(a). The Seller shall at all times maintain
its principal executive office within the United States of America.
SECTION 2.5 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
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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;
(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.
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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, 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 Seller
without the consent of the Indenture Trustee, any Noteholder or the Buyer;
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 Buyer 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 or the Buyer 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 Seller without the consent of any of the
Buyer, 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.
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(e) Prior to the execution of any amendment to this Agreement, the Seller
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 Seller 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 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 pledge of the Transaction SUBI and
the assignment of all rights and obligations of the Seller related thereto by
the Buyer to the Indenture Trustee pursuant to the Indenture for the benefit of
the Noteholders. In addition, the Seller hereby
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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 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
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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;
(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 ▇▇▇ 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.
SECTION 3.16 Limitation of Liability of Owner Trustee. Notwithstanding
anything contained herein to the contrary, this instrument has been signed by
[_____] not in its individual capacity but solely in its capacity as Owner
Trustee of the Issuer and in no event shall [_____] in its individual capacity
or any beneficial owner of the Issuer have any liability for the
representations, warranties, covenants, agreements or other obligations of the
Issuer hereunder, as to all of which recourse shall be had solely to the assets
of the Issuer.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first written above.
VOLKSWAGEN AUTO LEASE UNDERWRITTEN
FUNDING, LLC
By:
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Name:
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Title:
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By:
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Name:
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Title:
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Address:
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▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Treasurer
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
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VOLKSWAGEN AUTO LEASE TRUST
20[__]-[_____]
By: [__________], not in its individual
capacity but solely as owner trustee
By:
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Name:
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Title:
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Address:
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SCHEDULE I
PERFECTION REPRESENTATIONS, WARRANTIES AND COVENANTS
In addition to the representations, warranties and covenants contained in
the SUBI Transfer Agreement, the Seller hereby represents, warrants, and
covenants to the Buyer as follows on the Closing Date:
1. The SUBI Transfer 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 Transfer 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 VCI to the
Seller under the SUBI Sale Agreement and from the Seller to the Buyer 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 the Transaction
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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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