EXHIBIT 10.4
AMENDED AND RESTATED
RECEIVABLES PURCHASE AGREEMENT
BETWEEN
VW CREDIT, INC.,
as Seller
AND
VOLKSWAGEN DEALER FINANCE, LLC,
as Buyer
DATED AS OF _____________ , 200_
TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS............................................................................ 1
SECTION 1.1 Definitions...................................................................... 1
ARTICLE II CONVEYANCE OF RECEIVABLES.............................................................. 2
SECTION 2.1 Conveyance of Receivables........................................................ 2
SECTION 2.2 Representations and Warranties of VCI Relating to VCI and this Agreement......... 4
SECTION 2.3 Representations and Warranties of VCI Relating to the Receivables................ 6
SECTION 2.4 Addition of Accounts............................................................. 7
SECTION 2.5 Covenants of VCI................................................................. 8
SECTION 2.6 Removal of Accounts.............................................................. 9
SECTION 2.7 Removal of Receivables With Accounts............................................. 10
SECTION 2.8 Sale of Ineligible Receivables................................................... 10
ARTICLE III ADMINISTRATION AND SERVICING OF RECEIVABLES............................................ 11
SECTION 3.1 Acceptance of Appointment and Other Matters Relating to the Servicer............. 11
SECTION 3.2 Servicing Compensation........................................................... 11
ARTICLE IV ALLOCATION AND APPLICATION OF COLLECTIONS.............................................. 11
SECTION 4.1 Allocations and Applications of Collections and Other Funds...................... 11
ARTICLE V OTHER MATTERS RELATING TO SELLER....................................................... 11
SECTION 5.1 VCI Indemnification of VDF....................................................... 11
SECTION 5.2 VCI Acknowledgment of Transfers to the Trust..................................... 12
ARTICLE VI TERMINATION............................................................................ 12
ARTICLE VII INTERCREDITOR PROVISIONS............................................................... 13
ARTICLE VIII MISCELLANEOUS PROVISIONS............................................................... 13
SECTION 8.1 Amendment........................................................................ 13
SECTION 8.2 Protection of Right, Title and Interest to Receivables........................... 15
SECTION 8.3 Limited Recourse................................................................. 15
SECTION 8.4 Nonpetition Covenant............................................................. 15
SECTION 8.5 GOVERNING LAW.................................................................... 16
SECTION 8.6 Notices.......................................................................... 16
SECTION 8.7 Severability of Provisions....................................................... 16
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TABLE OF CONTENTS
(continued)
PAGE
SECTION 8.8 Assignment....................................................................... 16
SECTION 8.9 Further Assurances............................................................... 16
SECTION 8.10 No Waiver; Cumulative Remedies................................................... 17
SECTION 8.11 Counterparts..................................................................... 17
SECTION 8.12 Third-Party Beneficiaries........................................................ 17
SECTION 8.13 Merger and Integration........................................................... 17
SECTION 8.14 Headings......................................................................... 17
SECTION 8.15 Submission to Jurisdiction....................................................... 17
EXHIBITS
Exhibit A Form of Assignment
Exhibit B Form of Reassignment
SCHEDULES
Schedule 1 List of Accounts
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AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT, dated as of
_____________ , 200 _ (as amended, supplemented or modified from time to time,
this "Agreement") between VW CREDIT, INC., a Delaware corporation ("VCI"), as
seller, and VOLKSWAGEN DEALER FINANCE, LLC, a Delaware limited liability company
("VDF"), as buyer.
W I T N E S S E T H :
WHEREAS, VCI and VDF entered into that certain Receivables Purchase
Agreement, dated as of August 10, 2000 (as amended, supplemented, amended and
restated or otherwise modified from time to time prior to the date hereof, the
"Existing Agreement");
WHEREAS VCI in the ordinary course of its business finances the purchase
of floorplan inventory by automotive and/or light duty truck dealers thereby
generating certain payment obligations under revolving credit account agreements
established with such dealers;
WHEREAS VCI wishes to sell certain of such existing and future payment
obligations generated under such accounts from time to time to VDF;
WHEREAS VDF desires to sell such payment obligations to the Volkswagen
Credit Auto Master Owner Trust, a Delaware statutory trust (the "Trust")
pursuant to an amended and restated trust sale and servicing agreement, dated as
of _____________ , 200 _ (as the same may from time to time be amended,
supplemented or otherwise modified, the "Trust Sale and Servicing Agreement"),
among VDF, as transferor, VCI, as servicer (in such capacity, the "Servicer")
and the Trust;
WHEREAS, the Trust will pledge all such payment obligations to the
Indenture Trustee pursuant to the Indenture for the benefit of the Noteholders;
and
WHEREAS, this Agreement amends and restates as of the date hereof in its
entirety the Existing Agreement, and upon the effectiveness of this Agreement,
the terms and provisions of the Existing Agreement shall be superseded hereby in
their entirety.
NOW THEREFORE, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions. Certain capitalized terms used in this Agreement
shall have the respective meanings assigned to them in Part I of Appendix A to
the Trust Sale and Servicing Agreement. All references herein to Articles,
Sections and subsections are to Articles, Sections and subsections of this
Agreement unless otherwise specified. The rules of construction set forth in
Part II of Appendix A to the Trust Sale and Servicing Agreement shall be
applicable to this Agreement.
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ARTICLE II
CONVEYANCE OF RECEIVABLES
SECTION 2.1 Conveyance of Receivables. By execution of this Agreement, VCI
does hereby sell, transfer, assign, contribute, set over and otherwise convey,
without recourse (except as expressly provided herein), to VDF on the Initial
Closing Date, in the case of the Initial Accounts, and on the applicable
Addition Date, in the case of Additional Accounts, all of its right, title and
interest in, to and under the Receivables in each Account and all Collateral
Security with respect thereto owned by VCI at the close of business on the
Initial Cut-Off Date (including all interest thereon accruing after June 30,
2000, whether paid or payable), in the case of the Initial Accounts, and on the
applicable Additional Cut-Off Date, in the case of Additional Accounts, and all
monies due or to become due thereon and all amounts received with respect
thereto and all proceeds of all of the foregoing (including "proceeds" as
defined in Section 9-102 of the UCC) and Recoveries thereof (all such assets
conveyed pursuant to this Agreement, the "Conveyed Assets"). Subject to Article
VI, prior to the earlier of (x) the occurrence of an Early Amortization Event
specified in Section 5.17(a), (b), (c), (d), (e) or (f) of the Indenture and (y)
the Trust Termination Date, as of each Business Day on which Receivables are
created in the Accounts (a "Transfer Date"), VCI does hereby sell, transfer,
assign, set over and otherwise convey (except as expressly provided herein) to
VDF, all of its right, title and interest in, to and under the Receivables in
each Account (other than any Receivables created in any Removed Account from and
after the applicable Removal Date) and all Collateral Security with respect
thereto owned by VCI at the close of business on such Transfer Date and not
theretofore conveyed to VDF, all monies due or to become due and all amounts
received with respect thereto and all proceeds of all of the foregoing
(including "proceeds" as defined in Section 9-102 of the UCC) and Recoveries
thereof. The foregoing sale, contribution, transfer, assignment, set-over and
conveyance and any subsequent sales, transfers, assignments, set-overs and
conveyances do not constitute, and are not intended to result in, the creation
or an assumption by VDF of any obligation of the Servicer, VCI, or any other
Person in connection with the Accounts, the Receivables or under any agreement
or instrument relating thereto, including any obligation to any Dealers.
It is the express intent of the parties hereto that the conveyance of the
Conveyed Assets by VCI be, and be construed as, sales and contributions of such
Conveyed Assets by VCI to VDF, and not a pledge by VCI to VDF to secure a debt
or other obligations of VCI. However, in the event that, notwithstanding the
aforementioned intent of the parties, any such Conveyed Assets are held to be
the property of VCI, then it is the express intent of the parties to this
Agreement that this Agreement constitutes a "security agreement" under the UCC
and applicable law, and VCI hereby grants to VDF a first priority, continuing
lien and security interest in all right, title and interest of VCI in, to and
under the Conveyed Assets sold and contributed pursuant to this Agreement, and
all proceeds in respect thereof. VCI shall take such actions, as may be
necessary to ensure that if this Agreement were deemed to create a security
interest, such security interest would be a perfected security interest of first
priority under applicable law and will be maintained as such for the term of
this Agreement.
In connection with such sales and contributions, VCI agrees to record and
file, at its own expense, a financing statement on form UCC-1 or any other
applicable form (and continuation statements when applicable) naming VCI as
"seller" or "debtor" and VDF as "buyer" or "secured
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party" thereon with respect to the Receivables now existing and hereafter
created for the sale of chattel paper, general intangibles, payment intangibles
or accounts (as defined in Sections 9-102 of the UCC) meeting the requirements
of applicable law in such manner and in such jurisdictions as are necessary to
perfect the sale, contribution and assignment of the Conveyed Assets to VDF, and
to deliver a file-stamped copy of such financing statements or other evidence of
such filing to VDF on or prior to the Initial Closing Date, in the case of
Initial Accounts, and (if any additional filing is so necessary) the applicable
Addition Date, in the case of Additional Accounts. In addition, VCI shall cause
to be timely filed in the appropriate filing office any form UCC-1 financing
statement and continuation statement necessary to perfect any sale or
contribution of Conveyed Assets to VDF. VDF shall be under no obligation
whatsoever to file such financing statement, or a continuation statement to such
financing statement, or to make any other filing under the UCC in connection
with such sales. The parties hereto intend that the transfers of Receivables
effected by this Agreement be sales. Nothing in this Agreement shall be
construed or interpreted to provide recourse against VCI for the financial
inability of a Dealer to make one or more payments on a Receivable.
In connection with such sales and contributions, VCI further agrees, at
its own expense, on or prior to the Initial Closing Date, in the case of Initial
Accounts, the applicable Addition Date, in the case of Additional Accounts, and
the applicable Removal Date, in the case of Removed Accounts, (a) to indicate in
its computer files that the Receivables created in connection with the Accounts
(other than Removed Accounts) have been sold, and the Collateral Security
assigned, to VDF pursuant to this Agreement and sold to the Trust pursuant to
the Trust Sale and Servicing Agreement for the benefit of the Residual
Interestholder and pledged to the Indenture Trustee under the Indenture for the
benefit of the Noteholders and the other Beneficiaries and (b) to deliver to VDF
a computer file or microfiche or written list (which may be in electronic form)
containing a true and complete list of all such Accounts (other than Removed
Accounts) specifying for each such Account, as of the Initial Cut-Off Date, in
the case of Initial Accounts, and the applicable Additional Cut-Off Date, in the
case of Additional Accounts (i) its account number and (ii) the aggregate amount
of Principal Receivables in such Account. Such file or list, as supplemented
from time to time to reflect Additional Accounts and Removed Accounts, shall be
marked as Schedule 1 to this Agreement and is hereby incorporated into and made
a part of this Agreement. In addition, in connection with such sales or
contributions, VCI shall deliver to VDF all documents constituting "instruments"
(as defined in Section 9-102 of the UCC) with such endorsements attached as VDF
may reasonably require.
In consideration for the sale of $495,750,000 of Principal Receivables
existing in the Initial Accounts, together with the related Collateral Security
and interest thereon and all monies due or to become due thereon and all amounts
received with respect thereto and all proceeds of all of the foregoing
(including "proceeds" as defined in Section 9-102 of the UCC) transferred to VDF
on the Initial Closing Date, VDF shall pay to VCI cash in an amount equal to
$495,750,000. On the Initial Closing Date, $28,000,000 of Principal Receivables
existing in the Initial Accounts, together with the related Collateral Security
and interest thereon and all monies due or to become due thereon and all amounts
received with respect thereto and all proceeds of all of the foregoing
(including "proceeds" as defined in Section 9-102 of the UCC) will be deemed to
have been transferred in the form of a capital contribution by VCI to VDF. VCI
will pay for the remaining Principal Receivables existing in the Initial
Accounts, together with the related Collateral Security and interest thereon and
all monies due or to become due thereon and
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all amounts received with respect thereto and all proceeds of all of the
foregoing (including "proceeds" as defined in Section 9-102 of the UCC),
transferred to VDF on the Initial Closing Date, by borrowing under the VDF
Subordinated Note an amount equal to the aggregate amount of such Principal
Receivables. The purchase price for the Receivables sold by VCI to VDF on each
Addition Date and on each Transfer Date thereafter shall be a price agreed to by
VDF and VCI at the time of acquisition by VDF, which price shall not, in the
opinion of VDF, be materially less favorable to VDF than prices for transactions
of a generally similar character at the time of the acquisition taking into
account the quality of such Receivables and other pertinent factors; provided
that such consideration shall in any event not be less than reasonably
equivalent value therefor. If and to the extent that VDF shall not have funds
available to pay VCI the purchase price for the Receivables transferred (such
difference is referred to herein as the "Excess Purchase Price"), (x) such
Excess Purchase Price 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 VDF Subordinated
Note.
SECTION 2.2 Representations and Warranties of VCI Relating to VCI and this
Agreement. VCI hereby represents and warrants to VDF as of each Closing Date and
as of each Addition Date that:
(a) Existence and Power. VCI is a corporation validly existing and
in good standing under the laws of its state of organization and has, in all
material respects, all power and authority required to carry on its business as
now conducted. VCI has obtained all necessary licenses and approvals in each
jurisdiction where the failure to do so would materially and adversely affect
the ability of VCI to perform its obligations under the Basic Documents or
affect the enforceability or collectibility of the Receivables or any other part
of the Conveyed Assets.
(b) Authorization and No Contravention. The execution, delivery and
performance by VCI of each Basic Document to which it is a party (i) have been
duly authorized by all necessary action on the part of VCI and (ii) do not
contravene or constitute a default under (A) any applicable law, rule or
regulation, (B) its organizational documents or (C) any material agreement,
contract, order or other instrument to which it is a party or its property is
subject (other than violations of which do not affect the legality, validity or
enforceability of any of such agreements and which, individually or in the
aggregate, would not materially and adversely affect the transactions
contemplated by, or VCI's ability to perform its obligations under, the Basic
Documents).
(c) No Proceedings. There are no actions, suits or proceedings
pending or, to the knowledge of VCI, threatened against VCI before or by any
Governmental Authority that (i) assert the invalidity or unenforceability of
this Agreement or any of the other Basic Documents, (ii) seeking to prevent the
issuance of any Series of Notes or the consummation of any of the transactions
contemplated by this Agreement or any of the other Basic Documents, (iii)
seeking any determination or ruling that would materially and adversely affect
the performance by VCI of its obligations under this Agreement or any of the
other Basic Documents, or (iv) relating to
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VCI that would materially and adversely affect the federal or applicable state
tax income, excise, franchise or similar tax attributes of any Series of Notes.
(d) No Consent Required. No approval or authorization by, or filing
with, any Governmental Authority is required in connection with the execution,
delivery and performance by VCI of any Basic Document other than (i) UCC
filings, (ii) approvals and authorizations that have previously been obtained
and filings that have previously been made and (iii) approvals, authorizations
or filings which, if not obtained or made, would not have a material adverse
effect on the enforceability or collectibility of the Receivables or any other
part of the Conveyed Assets or would not materially and adversely affect the
ability of VCI to perform its obligations under the Basic Documents.
(e) Binding Effect. Each Basic Document to which VCI is a party
constitutes the legal, valid and binding obligation of VCI enforceable against
VCI in accordance with its terms, except as such enforceability may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium, receivership,
conservatorship or other similar laws affecting creditors' rights generally and,
if applicable, the rights of creditors of limited liability companies from time
to time in effect or by general principles of equity.
(f) Record of Accounts. As of the Initial Closing Date, in the case
of Initial Accounts, as of the applicable Addition Date, in the case of the
Additional Accounts, and, as of the applicable Removal Date, in the case of
Removed Accounts, Schedule 1 to this Agreement is an accurate and complete
listing in all material respects of all the Accounts as of the Initial Cut-Off
Date, the applicable Additional Cut-Off Date or the applicable Removal Date, as
the case may be, and the information contained therein with respect to the
identity of such Accounts and the Receivables existing thereunder is true and
correct in all material respects as of the Initial Cut-Off Date, such applicable
Additional Cut-Off Date or such Removal Date, as the case may be.
(g) Valid Transfer. This Agreement or, in the case of Additional
Accounts, the related Assignment constitutes a valid sale, transfer and
assignment to VDF of all right, title and interest of VCI in the Receivables and
the Collateral Security and the proceeds thereof. Upon the filing of the
financing statements described in Section 2.1 and, in the case of the
Receivables hereafter created and the proceeds thereof, upon the creation
thereof, VDF shall have a first priority perfected ownership interest in such
property. Except as otherwise provided in the Basic Documents, neither VCI nor
any Person claiming through or under VCI has any claim to or interest in the
Owner Trust Estate or the Trust Estate.
The representations and warranties set forth in this Section 2.2 shall
survive the transfer and assignment of the Receivables to VDF. Upon discovery by
VCI or VDF of a breach of any of the foregoing representations and warranties,
the party discovering such breach shall give prompt written notice to the other
party.
In the event a breach of any of the representations and warranties set
forth in this Section 2.2 results in the obligation of VDF to redeem the Notes
pursuant to Section 2.3 of the Trust Sale and Servicing Agreement and Section
10.1 of the Indenture, VCI shall repurchase the Receivables and the Collateral
Security and pay to VDF on the Business Day preceding the date
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on which such redemption of Notes is to be made an amount of cash equal to the
amount VDF is required to deposit into the Note Distribution Account pursuant to
Section 2.3 of the Trust Sale and Servicing Agreement. The obligation of VCI to
purchase the retransferred Receivables pursuant to this Section 2.2 shall
constitute the sole remedy against VCI respecting an event of the type specified
in the first sentence of this paragraph available to VDF, the Trust and the
Noteholders (or the Indenture Trustee on behalf of the Noteholders.)
SECTION 2.3 Representations and Warranties of VCI Relating to the
Receivables.
(a) Representations and Warranties. VCI represents and warrants to
VDF that as of each Closing Date and as of each Addition Date:
(i) Each Receivable and all Collateral Security existing on the
Initial Closing Date or, in the case of Additional Accounts, on the applicable
Addition Date, and on each Transfer Date, has been conveyed to VDF free and
clear of any Lien (other than the Lien held by VCI subject to Article VII
hereof).
(ii) With respect to each Receivable and all Collateral Security
existing on the Initial Closing Date or, in the case of Additional Accounts, on
the applicable Addition Date, and on each Transfer Date, all consents, licenses,
approvals or authorizations of or registrations or declarations with any
Governmental Authority required to be obtained, effected or given by VCI in
connection with the conveyance of such Receivable or Collateral Security to VDF
have been duly obtained, effected or given and are in full force and effect.
(iii) On the Initial Cut-Off Date and each Closing Date , each
Initial Account is an Eligible Account or in the case of an Additional Account,
on the applicable Additional Cut-Off Date and subsequent Closing Date , each
Account or Additional Account is an Eligible Account.
(iv) On the Initial Closing Date, in the case of the Initial
Accounts, and, in the case of the Additional Accounts, on the applicable
Additional Cut-Off Date, and on each Transfer Date, each Receivable conveyed to
VDF on such date is an Eligible Receivable or, if such Receivable is not an
Eligible Receivable, such Receivable is conveyed to VDF in accordance with
Section 2.8.
(b) Notice of Breach. The representations and warranties set forth
in this Section 2.3 shall survive the transfer and assignment of the Receivables
to VDF. Upon discovery by VCI or VDF of a breach of any of the representations
and warranties set forth in this Section 2.3, the party discovering such breach
shall give prompt written notice to the other party.
(c) Repurchase. In the event any representation or warranty under
Section 2.3(a) is not true and correct as of the date specified therein with
respect to any Receivable or Account and VDF in connection therewith, is
required to purchase such Receivable or all Receivables in such Account pursuant
to Section 2.4(c) of the Trust Sale and Servicing Agreement, then within 30 days
(or such longer period as may be agreed to by VDF) of the earlier to occur of
the discovery of any such event by VCI or VDF, or receipt by VCI or VDF of
written notice of any such event given by the Owner Trustee, the Indenture
Trustee, any
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Agent or Enhancement Providers, VCI shall repurchase such Receivable or
Receivables which VDF is required to accept reassignment pursuant to the Trust
Sale and Servicing Agreement on the Business Day preceding the Determination
Date on which such reassignment is to occur.
VCI shall purchase each such Receivable by making a payment to VDF in
immediately available funds on the Business Day preceding the Payment Date on
which such reassignment is to occur in an amount equal to the Purchase Price for
such Receivable. Upon payment of the Purchase Price, VDF shall automatically and
without further action be deemed to sell, transfer, assign, set over and
otherwise convey to VCI, without recourse, representation or warranty, all the
right, title and interest of VDF in and to such Receivable, all Collateral
Security and all monies due or to become due with respect thereto and all
proceeds thereof. VDF shall execute such documents and instruments of transfer
or assignment and take such other actions as shall reasonably be requested by
VCI to effect the conveyance of such Receivables pursuant to this Section. The
obligation of VCI to repurchase any such Receivable shall constitute the sole
remedy respecting the event giving rise to such obligation available to VDF, the
Trust, the Noteholders and the Residual Interestholder (or the Owner Trustee on
behalf of the Residual Interestholder or the Indenture Trustee on behalf of the
Noteholders).
SECTION 2.4 Addition of Accounts.
(a) VCI may from time to time offer to voluntarily designate
additional Eligible Accounts to be included as Accounts, subject to the
conditions specified in paragraph (b) below. If any such offer is accepted by
VDF, Receivables and the related Collateral Security from such Additional
Accounts shall be sold to VDF effective on a date (the "Addition Date")
specified in a written notice provided by VCI (or the Servicer on its behalf) to
VDF and any Enhancement Providers specifying the Additional Cut-Off Date and the
Addition Date for such Additional Accounts (the "Addition Notice") on or before
the fifth Business Day but not more than the 30th day prior to the related
Addition Date (the "Notice Date").
(b) VCI shall be permitted to convey to VDF the Receivables and all
Collateral Security related thereto in any Additional Accounts designated by VCI
as such pursuant to Section 2.4(a) only upon satisfaction of each of the
following conditions on or prior to the related Addition Date; provided,
however, conditions (i), (vi), (vii) and (viii) below shall be inapplicable to
Accounts designated by VDF as Automatic Additional Accounts under Section 2.5(b)
of the Trust Sale and Servicing Agreement:
(i) VCI shall provide VDF and any Enhancement Providers with a
timely Addition Notice.
(ii) Such Additional Accounts shall all be Eligible Accounts.
(iii) VCI shall have delivered to VDF a duly executed written
assignment (including an acceptance by VDF) in substantially the form of Exhibit
A (the "Assignment") and the computer file or microfiche or written list (which
may be in electronic form) required to be delivered pursuant to Section 2.1.
(iv) VCI shall have delivered to VDF for deposit in the Collection
Account all Collections with respect to such Additional Accounts since the
Additional Cut-Off Date.
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(v) (A) No selection procedures believed by VCI to be adverse to the
interests of VDF or the Beneficiaries were used in selecting such Additional
Accounts; (B) the list of Additional Accounts delivered pursuant to clause (iii)
above is true and correct in all material respects as of the Additional Cut-Off
Date and (C) as of each of the Notice Date and the Addition Date, neither VCI,
VDF nor the Servicer is insolvent nor will have been made insolvent by such
transfer nor are aware of any pending insolvency.
(vi) After giving effect to the addition of such Additional
Accounts, (a) the result of (i) the Pool Balance minus the aggregate Invested
Amount for all Series minus (ii) the outstanding principal balance of the VDF
Subordinated Note is greater than or equal to (b) 4% of the Pool Balance.
(vii) The addition of the Receivables arising in such Additional
Accounts shall not result in the occurrence of an Early Amortization Event.
(viii) VCI shall have delivered to VDF and any Enhancement Providers
a certificate of an Executive Officer confirming the items set forth in
paragraphs (ii) through (vii) above.
With respect to Automatic Additional Accounts, VCI shall deliver to VDF
and any Enhancement Providers an Opinion of Counsel for the same time periods as
the Transferor is required to deliver under Section 2.5(b) of the Trust Sale and
Servicing Agreement.
(c) VCI hereby represents and warrants as of the applicable Addition
Date as to the matters set forth in Section 2.4(b)(v) and (vii). The
representations and warranties set forth in Section 2.4(b)(v) shall survive the
sale, contribution and assignment of the respective Receivables and the related
Collateral Security to VDF. Upon discovery by VCI or VDF of a breach of any of
the foregoing representations and warranties, the party discovering the breach
shall give prompt written notice to the other party and to any Enhancement
Providers.
SECTION 2.5 Covenants of VCI. VCI hereby covenants that:
(a) No Liens. Except for the conveyances hereunder and under the
other Basic Documents, VCI will not sell, pledge, assign or transfer to any
other Person, or grant, create, incur, assume or suffer to exist any Lien on,
any Receivable or any Collateral Security, whether now existing or hereafter
created, or any interest therein other than a Note or the Residual Interest
(other than the Lien held by VCI subject to Article VII hereof) and VCI shall
defend the right, title and interest of VDF and the Trust in, to and under the
Receivables and the Collateral Security, whether now existing or hereafter
created, against all claims of third parties claiming through or under VCI.
(b) Floorplan Financing Agreements and Guidelines. VCI shall comply
with and perform its servicing obligations with respect to the Accounts and
Receivables in accordance with the applicable Floorplan Financing Agreements
relating to the Accounts and the applicable Floorplan Financing Guidelines,
except insofar as any failure to so comply or perform would not materially and
adversely affect the rights of VDF, the Trust, the Residual Interestholder, the
Noteholders or any Enhancement Providers. Subject to compliance with all
Requirements of Law, VCI, in its capacity of Servicer, may change the terms and
provisions of the Floorplan
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Financing Agreement or the Floorplan Financing Guidelines in any respect
(including the calculation of the amount or the timing of charge-offs and the
rate of the finance charge assessed thereon) only if such change would be
permitted pursuant to Section 3.1(d) of the Trust Sale and Servicing Agreement.
(c) Account Allocations. In the event that VCI is unable for any
reason to transfer Receivables to VDF, then VCI agrees that it shall allocate,
after the occurrence of such event, payments on each Account with respect to the
principal balance of such Account first to the oldest principal balance of such
Account and to have such payments applied as Collections in accordance with the
terms of the Trust Sale and Servicing Agreement. The parties hereto agree that
Non-Principal Receivables, whenever created, accrued in respect of Principal
Receivables which have been conveyed to VDF and by VDF to the Trust shall
continue to be a part of the Trust notwithstanding any cessation of the transfer
of additional Principal Receivables to VDF and Collections with respect thereto
shall continue to be allocated and paid in accordance with Section 8.2 of the
Indenture.
(d) Delivery of Collections. In the event that VCI receives
Collections, VCI agrees to pay the Servicer or any Successor Servicer all
payments received by VCI in respect of the Receivables as soon as practicable
after receipt thereof by VCI, but in no event later than two Business Days after
the receipt by VCI thereof.
(e) Notice of Liens. VCI shall notify in writing VDF, the Owner
Trustee and the Indenture Trustee promptly after becoming aware of any Lien on
any Receivable other than the conveyances hereunder or under the Trust Sale and
Servicing Agreement or the Indenture.
(f) Compliance with Law. VCI hereby agrees to comply in all material
respects with all Requirements of Law applicable to VCI.
SECTION 2.6 Removal of Accounts.
(a) On each Determination Date on which Accounts, including all
amounts then held by the Trust or thereafter received by the Trust with respect
to such Accounts, are removed from the Trust pursuant to Section 2.7 of the
Trust Sale and Servicing Agreement, VDF shall be deemed to have offered to VCI
automatically and without notice to or action by or on behalf of VDF, the right
to remove Eligible Accounts from the operation of this Agreement in the manner
prescribed in Section 2.6(b).
(b) To accept such offer and remove Accounts, including all amounts
then held by the Trust or thereafter received by the Trust with respect to such
Accounts, VCI (or the Servicer on its behalf) shall take the following actions
and make the following determinations:
(i) not less than five Business Days prior to the Removal
Commencement Date, furnish to VDF, the Owner Trustee, the Indenture Trustee, any
Enhancement Providers and the Rating Agencies a written notice (the "Removal
Notice") specifying the Determination Date (which may be the Determination Date
on which such notice is given) on which removal of one or more Accounts (the
"Designated Accounts") will commence (a "Removal Commencement Date");
9
(ii) determine on the Removal Commencement Date the aggregate
principal balance of Receivables in respect of each Designated Account (the
"Designated Balance");
(iii) from and after such Removal Commencement Date, cease to
transfer to VDF any and all Receivables arising in such Designated Accounts;
(iv) from and after the Removal Commencement Date, allocate all
Principal Collections in respect of each Designated Account, first to the oldest
outstanding principal balance of the Designated Account, until the Determination
Date on which the Designated Balance in the Designated Account is reduced to
zero (the "Removal Date");
(v) on each Business Day from and after the Removal Commencement
Date to and until the related Removal Date, allocate (A) to the Trust (to be
further allocated pursuant to the Trust Sale and Servicing Agreement),
Non-Principal Collections in respect of each Designated Account for Receivables
in all Designated Accounts transferred to the Trust and (B) to the Transferor
the remainder of the Non-Principal Collections in the Designated Accounts;
(vi) represent and warrant that the removal of any Eligible Account
on the Removal Date shall not, in the reasonable belief of VCI, result in the
occurrence of an Early Amortization Event for any Series of Notes;
(vii) represent and warrant that no selection procedures believed by
VCI to be adverse to the interests of the Residual Interestholder, the
Noteholders or any Enhancement Providers were utilized in selecting the Accounts
to be removed.
(viii) represent and warrant that the removal will not result in a
reduction or withdrawal of the rating of any outstanding Series or class of
Notes; and
(ix) on or before the related Removal Date, deliver to the Indenture
Trustee and any Enhancement Provider an Officer's Certificate confirming the
items set forth in clauses (vi), (vii) and (viii) above.
(c) Subject to Section 2.6(b), and upon the satisfaction of the
conditions therein and upon VCI's consent to the proposed removal, on the
Removal Date with respect to any such Designated Accounts, such Designated
Accounts shall be deemed removed by operation of this Agreement for all purposes
(a "Removed Account"). After the Removal Date and upon the written request of
the Servicer, VDF shall deliver to VCI a reassignment in substantially the form
of Exhibit B (the "Reassignment") with respect to the Removed Accounts.
SECTION 2.7 Removal of Receivables With Accounts. The Transferor may
remove Accounts from designation to the Trust pursuant to Section 2.8(b) of the
Trust Sale and Servicing Agreement. Nothing in this Agreement shall require VCI
to acquire such Accounts or the related Receivables from the Transferor.
SECTION 2.8 Sale of Ineligible Receivables. VCI shall sell to VDF on each
Transfer Date any and all Receivables arising in any Eligible Accounts that are
Ineligible Receivables, provided that on the Initial Cut-Off Date or, in the
case of Receivables arising in Additional
10
Accounts, on the related Additional Cut-Off Date, and on the applicable Transfer
Date, the Account in which such Receivables arise is an Eligible Account.
ARTICLE III
ADMINISTRATION AND SERVICING OF RECEIVABLES
SECTION 3.1 Acceptance of Appointment and Other Matters Relating to the
Servicer.
(a) VCI agrees to act as the Servicer under this Agreement and the
Trust Sale and Servicing Agreement, and VDF consents to VCI acting as the
Servicer. VCI will have ultimate responsibility for servicing, managing and
making collections on the Receivables and will have the authority to make any
management decisions relating to such Receivables, to the extent such authority
is granted to the Servicer under the Basic Documents.
(b) The Servicer shall service and administer the Receivables in
accordance with the provisions of the Basic Documents.
SECTION 3.2 Servicing Compensation. As full compensation for its servicing
activities hereunder and under the Trust Sale and Servicing Agreement, the
Servicer shall be entitled to receive the Servicing Fee on each Payment Date.
The Servicing Fee shall be paid in accordance with the terms of the Trust Sale
and Servicing Agreement.
ARTICLE IV
ALLOCATION AND APPLICATION OF COLLECTIONS
SECTION 4.1 Allocations and Applications of Collections and Other Funds.
The Servicer will apply all Collections with respect to the Receivables and all
funds on deposit in the Collection Account as described in Article IV of the
Trust Sale and Servicing Agreement and Article VIII of the Indenture.
ARTICLE V
OTHER MATTERS RELATING TO SELLER
SECTION 5.1 VCI Indemnification of VDF. VCI shall indemnify and hold
harmless VDF, from and against any loss, liability, expense, claim, damage or
injury suffered or sustained by reason of any acts, omissions or alleged acts or
omissions arising out of activities of VCI pursuant to this Agreement arising
out of or based on the arrangement created by this Agreement and the activities
of VCI taken pursuant thereto, including any judgment, award, settlement,
reasonable attorneys' fees and other costs or expenses incurred in connection
with the defense of any actual or threatened action, proceeding or claim;
provided, however, that VCI shall not indemnify VDF if such acts, omissions or
alleged acts or omissions constitute fraud, gross negligence or wilful
misconduct by VDF; and provided further, that VCI shall not indemnify VDF for
any liabilities, cost or expense of VDF with respect to any federal, state or
local income or franchise taxes (or any interest or penalties with respect
thereto) required to be paid by VDF in connection herewith to any taxing
authority. Any indemnification under this Section 5.1 shall survive the
termination of the Agreement.
11
SECTION 5.2 VCI Acknowledgment of Transfers to the Trust. By its execution
of the Trust Sale and Servicing Agreement, VCI acknowledges that VDF shall,
pursuant to the Trust Sale and Servicing Agreement, transfer the Receivables
purchased hereunder and the Collateral Security to the Trust and assign its
rights associated therewith under this Agreement to the Trust, subject to the
terms and conditions of the Trust Sale and Servicing Agreement, and that the
Trust shall in turn further pledge, assign or transfer its rights in such
property and this Agreement to the Indenture Trustee under the Indenture.
ARTICLE VI
TERMINATION
This Agreement will terminate immediately after the Trust terminates
pursuant to the Trust Agreement. In addition, VDF shall not purchase Receivables
nor shall VCI designate Additional Accounts if VCI shall become an involuntary
party to (or be made the subject of) any proceeding provided for by any
insolvency, readjustment of debt, marshaling of assets and liabilities or
similar proceedings of or relating to VCI or relating to all or substantially
all of its property (an "Involuntary Case") and such Involuntary Case shall have
continued for a period of twenty Business Days from and including the day of
receipt by VCI at its principal corporate office of notice of such Involuntary
Case; provided that during such twenty Business Day period, VDF shall suspend
its purchase of Receivables and shall hold all Collections of Principal
Receivables that would have been available to purchase Receivables in the
Collection Account and (a) if by the first Business Day after such twenty
Business Day period, neither VCI nor VDF has obtained an order from the court
having jurisdiction of such case or filing which order approves the continuation
of the sale of Receivables by VCI to VDF and which provides that VDF and any of
its transferees (including the Owner Trustee and the Indenture Trustee) may
conclusively rely on such order for the validity and nonavoidance of such
transfer (the "Order"), VDF shall hold such Collections in the Collection
Account until such time as they may be paid as elsewhere provided herein and
shall not purchase Receivables thereafter, or (b) if by such first Business Day,
VCI or VDF has obtained such Order, VCI may continue selling Receivables, and
VDF may continue purchasing Receivables, pursuant to the terms hereof, as
modified by the immediately succeeding sentence. During the period after the
twenty Business Day period described above and before the end of the 90-day
period described below, the purchase price of the Receivables transferred during
such period, notwithstanding anything in this Agreement to the contrary, shall
be paid to VCI by VDF in cash not later than the same Business Day of any sale
of Receivables. During such period, Receivables will be considered transferred
to VDF only to the extent that the purchase price therefor has been paid in cash
on the same Business Day. If an Order is obtained but subsequently is reversed
or rescinded or expires, VCI shall immediately cease selling Receivables to VDF,
and VDF shall immediately cease buying Receivables. VCI shall give prompt
written notice to each of VDF, the Owner Trustee and the Indenture Trustee
immediately upon becoming a party to an Involuntary Case. If by the first
Business Day after the 60-day period after such involuntary filing, such
Involuntary Case has not been dismissed, VDF shall not purchase thereafter
Receivables or designated Additional Accounts for transfer to the Issuer.
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ARTICLE VII
INTERCREDITOR PROVISIONS
With respect to a Dealer which is the obligor under Receivables that have
been or will be sold to VDF hereunder, VCI may be or become a lender to such
Dealer under an agreement or arrangement (a "Nonfloorplan Agreement") other than
a Floorplan Financing Agreement pursuant to which VCI has been granted a
security interest in the same collateral (the "Common Collateral") in which the
Floorplan Financing Agreement for such Dealer creates a security interest, which
Common Collateral may include the same Vehicle (the "Common Vehicle Collateral")
in which such Floorplan Financing Agreement creates a security interest. The
Common Collateral other than the related Common Vehicle Collateral is referred
to herein as the "Common Non-Vehicle Collateral." VCI agrees that with respect
to each Receivable of each such Dealer (i) the security interest in such Common
Vehicle Collateral granted to VCI pursuant to any Nonfloorplan Agreement is
junior and subordinate to the security interest created by the related Floorplan
Financing Agreement, (ii) VCI has no legal right to realize upon such Common
Vehicle Collateral or exercise its rights under the Nonfloorplan Agreement in
any manner that is materially adverse to VDF, the Trust, the Residual
Interestholder or the Noteholders in respect of the Common Vehicle Collateral
until all required payments in respect of such Receivable under the Floorplan
Financing Agreement have been paid, and (iii) in realizing upon such Common
Vehicle Collateral, neither VDF nor the Trust shall have any obligation to
protect or preserve the rights of VCI in such Common Vehicle Collateral. VDF
agrees that with respect to each Receivable of each such Dealer (a) the security
interest in such Common Non-Vehicle Collateral created by the Floorplan
Financing Agreement and hereby assigned to VDF is junior and subordinate to the
security interest therein created by the Nonfloorplan Agreement, (b) VDF has no
legal right to realize upon such Common Non-Vehicle Collateral or exercise its
rights under the Floorplan Financing Agreement in any manner that is materially
adverse to VCI until all required payments in respect of the obligation created
or secured by the Nonfloorplan Agreement have been made, and (c) in realizing on
such Common Non-Vehicle Collateral, VCI shall not be obligated to protect or
preserve the rights of VDF or the Trust in such Common Non-Vehicle Collateral.
The Trust Sale and Servicing Agreement and the Indenture shall provide that the
Trust and the Indenture Trustee on behalf of the Noteholders is subject to the
preceding sentence. If VCI in any manner assigns or transfers any rights under,
or any obligation evidenced or secured by, a Nonfloorplan Agreement, VCI shall
make such assignment or transfer subject to the provisions of this Article VII
and shall require such assignee or transferee to acknowledge that it takes such
assignment or transfer subject to the provisions of this Article VII and to
agree that it will require the same acknowledgment from any subsequent assignee
or transferee.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
SECTION 8.1 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, any Enhancement Provider 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 Notes of
13
each Outstanding Series, voting as a single class, and (ii) any amendment that
materially and adversely affects the interests of the Residual Interestholder,
the Indenture Trustee, any Enhancement Provider 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 of any Outstanding Series of
Notes if the Rating Agency Condition is satisfied with respect to such
amendment. The consent of the Residual Interestholder, any Enhancement Provider,
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 Notes of any Outstanding Series, or
delay the expected principal payment date of any Notes of any Outstanding Series
without the consent of the Holder of such Note, or (ii) reduce the percentage of
the aggregate outstanding principal amount of the Notes of any Outstanding
Series, 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 Notes of such Outstanding Series 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, any Enhancement Provider and
the Indenture Trustee.
(f) Prior to the execution of any amendment to this Agreement, the
Owner Trustee, any Enhancement Provider 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.
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SECTION 8.2 Protection of Right, Title and Interest to Receivables.
(a) VCI shall cause this Agreement, all amendments hereto and/or all
financing statements and continuation statements and any other necessary
documents covering VDF's right, title and interest to the Receivables and
Collateral Security (other than the Lien held by VCI subject to Article VII
hereof) relating thereto to be promptly recorded, registered and filed, and at
all times to be kept recorded, registered and filed, all in such manner and in
such places as may be required by law fully to preserve and protect the right,
title and interest of VDF hereunder. VCI shall deliver to VDF file-stamped
copies of, or filing receipts for, any document recorded, registered or filed as
provided above, as soon as available following such recording, registration or
filing. VDF shall cooperate fully with VCI in connection with the obligations
set forth above and will execute any and all documents reasonably required to
fulfill the intent of this Section 8.2(a).
(b) Within 30 days after VCI makes any change in its name, identity,
corporate structure or jurisdiction of organization which would make any
financing statement or continuation statement filed in accordance with Section
8.2(a) "seriously misleading" within the meaning of Section 9-506(b) of the UCC,
VCI shall give VDF and any Agent notice of any such change and shall file such
financing statements or amendments as may be necessary to continue the
perfection of VDF's security interest in the Receivables and the proceeds
thereof.
(c) VCI will give VDF prompt written notice of any change of
location of VCI for purposes of Section 9-307 of the UCC and shall file such
financing statements or amendments as may be necessary to perfect or to continue
the perfection of VDF's security interest in the Receivables and the proceeds
thereof. VCI will at all times maintain its "location" within the United States
of America.
(d) VCI will deliver to VDF on each Addition Date on which any
Additional Accounts are to be included as the Accounts pursuant to Section 2.4
hereof, an Opinion of Counsel as specified in Section 2.4; provided, however,
that no such Opinion of Counsel shall be necessary in the case of Automatic
Additional Accounts as contemplated in Section 2.5 of the Trust Sale and
Servicing Agreement.
SECTION 8.3 Limited Recourse. Notwithstanding anything to the contrary
contained herein, the obligations of VDF hereunder shall not be recourse to VDF
(or any person or organization acting on behalf of VDF or any affiliate, officer
or director of VDF), other than to any assets of VDF not pledged to third
parties or otherwise encumbered in a manner permitted by VDF's Limited Liability
Company Agreement; provided, however, that any payment by VDF made in accordance
with this Section 8.3 shall be made only after payment in full of any amounts
that VCI is obligated to deposit in the Collection Account pursuant to this
Agreement; provided further that the Noteholders shall be entitled to the
benefits of the subordination of the Collections allocable to the Residual
Interest to the extent provided in the Series Supplement.
SECTION 8.4 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
15
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 8.5 GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO THE PRINCIPLES OF
CONFLICTS OF LAW THEREOF OR OF ANY OTHER JURISDICTION, OTHER THAN SECTION 5-1401
OF THE NEW YORK GENERAL OBLIGATIONS LAW, AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.
SECTION 8.6 Notices. All demands, notices and communications hereunder
shall be in writing and shall be delivered as specified in Appendix B to the
Trust Sale and Servicing Agreement.
SECTION 8.7 Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall for any
reason whatsoever be held invalid, then such covenants, agreements, provisions
or terms shall be deemed enforceable to the fullest extent permitted, and if not
so permitted, 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 or of the
Notes or rights of the Noteholders.
SECTION 8.8 Assignment. Notwithstanding anything to the contrary contained
herein, this Agreement may not be assigned by VCI without the prior consent of
VDF and the Trust. VDF may assign its rights, remedies, powers and privileges
under this Agreement to the Trust pursuant to the Trust Sale and Servicing
Agreement which may be assigned to the Indenture Trustee pursuant to the
Indenture.
SECTION 8.9 Further Assurances. VCI agrees to do and perform, from time to
time, any and all acts and to execute any and all further instruments required
or reasonably requested by VDF more fully to effect the purposes of this
Agreement, including the execution of any
16
financing statements or continuation statements relating to the Receivables for
filing under the provisions of the UCC of any applicable jurisdiction.
SECTION 8.10 No Waiver; Cumulative Remedies. No failure to exercise and no
delay in exercising, on the part of VDF, any right, remedy, power or privilege
under this Agreement shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, remedy, power or privilege under this Agreement
preclude any other or further exercise thereof or the exercise of any other
right, remedy, power or privilege. The rights, remedies, powers and privileges
herein provided are cumulative and not exhaustive of any rights, remedies,
powers and privileges provided by law.
SECTION 8.11 Counterparts. This Agreement may be executed in two or more
counterparts (and by different parties on separate counterparts), each of which
shall be an original, but all of which together shall constitute one and the
same instrument.
SECTION 8.12 Third-Party Beneficiaries. This Agreement will inure to the
benefit of and be binding upon the parties hereto, the Trust, the Owner Trustee,
the Indenture Trustee, the Noteholders, the Residual Interestholder, the
Enhancement Providers and their respective successors and permitted assigns.
Except as otherwise provided in this Agreement, no other Person will have any
right or obligation hereunder.
SECTION 8.13 Merger and Integration. Except as specifically stated
otherwise herein, this Agreement sets forth the entire understanding of the
parties relating to the subject matter hereof, and all prior understandings,
written or oral, are superseded by this Agreement. This Agreement may not be
modified, amended, waived, or supplemented except as provided herein.
SECTION 8.14 Headings. The headings herein are for purposes of reference
only and shall not otherwise affect the meaning or interpretation of any
provision hereof.
SECTION 8.15 Submission to Jurisdiction. Each of the parties hereto hereby
irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement, any documents executed and delivered in
connection herewith or for recognition and enforcement of any judgment in
respect thereof, to the non-exclusive 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 Appendix B to the Trust Sale and Servicing
Agreement; and
17
(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.
[signature page follows]
18
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
VW CREDIT, INC.,
Seller
By_________________________________
Name:
Title:
By_________________________________
Name:
Title
VOLKSWAGEN DEALER FINANCE, LLC,
Buyer
By_________________________________
Name:
Title:
By_________________________________
Name:
Title
19
Schedule 1
List of Accounts
20
EXHIBIT A
TO RPA
FORM OF ASSIGNMENT OF RECEIVABLES IN ADDITIONAL ACCOUNTS
(As required by Section 2.4(b)(iii) of the Receivables Purchase Agreement)
ASSIGNMENT No. ___ OF RECEIVABLES IN ADDITIONAL ACCOUNTS dated as of
___________, among VOLKSWAGEN DEALER FINANCE LLC ("VDF"), as buyer, and VW
CREDIT, INC. ("VCI"), as seller, pursuant to the Receivables Purchase Agreement
referred to below.
W I T N E S S E T H :
WHEREAS, VCI and VDF are parties to an Amended and Restated Receivables
Purchase Agreement dated as of _____________ , 200 _ (as amended or
supplemented, the "Receivables Purchase Agreement"):
WHEREAS, pursuant to the Receivables Purchase Agreement, VCI wishes to
designate Additional Accounts to be included as Accounts and to convey the
Receivables and Collateral Security of such Additional Accounts, whether now
existing or hereafter created, to VDF as part of the corpus of the Trust (as
each such term is defined in the Receivables Purchase Agreement); and
WHEREAS VDF is willing to accept such designation and conveyance subject
to the terms and conditions hereof;
NOW, THEREFORE, VCI and VDF hereby agree as follows:
1. Defined Terms. All capitalized terms used herein shall have the
meanings ascribed to them in Appendix A of the Amended and Restated Trust Sale
and Servicing Agreement dated as of ______ , 200 _ (as amended or supplemented,
the "Trust Sale and Servicing Agreement") unless otherwise defined herein.
"Addition Date" shall mean, with respect to the Additional Accounts designated
hereby, __________, _____.
2. Designation of Additional Accounts. VCI hereby delivers herewith a
computer file or microfiche or written list (which may be in electronic form)
containing a true and complete list of all such Additional Accounts specifying
for each such Account, as of the Additional Cut-Off Date, its account number,
the aggregate amount of Receivables outstanding in such Account and the
aggregate amount of Principal Receivables in such Account. Such file or list
shall, as of the date of this Assignment, supplement Schedule 1 to the
Receivables Purchase Agreement.
3. Conveyance of Receivables. VCI does hereby sell, transfer, assign, set
over and otherwise convey, without recourse (except as expressly provided in the
Receivables Purchase Agreement), to VDF, on the Addition Date all of its right,
title and interest in, to and under the Receivables in such Additional Accounts
and all Collateral Security with respect thereto, owned by VCI and existing at
the close of business on the Additional Cut-Off Date and thereafter
A-1
created from time to time, all monies due or to become due and all amounts
received with respect thereto and all proceeds (including "proceeds" as defined
in Section 9-102 of the UCC) thereof. The foregoing sale, transfer, assignment,
set-over and conveyance does not constitute and is not intended to result in the
creation or an assumption by VDF of any obligation of the Servicer, VCI or any
other Person in connection with the Accounts, the Receivables or under any
agreement or instrument relating thereto, including any obligation to any
Dealers.
4. Acceptance by VDF. Subject to the satisfaction of the conditions set
forth in Section 6 of this Assignment, VDF hereby acknowledges its acceptance of
all right, title and interest to the property, now existing and hereafter
created, conveyed to VDF pursuant to Section 3 of this Assignment.
5. Conditions Precedent. The acceptance of VDF set forth in Section 4 of
this Assignment is subject to the satisfaction, on or prior to the Addition
Date, of the following conditions precedent:
a. Agreement. Each of the conditions set forth in Section 2.4(b) of
the Receivables Purchase Agreement (other than Section 2.4(b)(i) in the case of
Automatic Additional Accounts designated by VCI pursuant to Section 2.5(b) of
the Trust Sale and Servicing Agreement) applicable to the designation of the
Additional Accounts to be designated hereby shall have been satisfied; and
b. Addition Information. VCI shall have delivered to VDF such
information as was reasonably requested by VDF to satisfy itself as to the
accuracy of the representation and warranty set forth in Section 2.4(b)(ii) of
the Receivables Purchase Agreement.
6. Ratification of Agreement. As supplemented by this Assignment, the
Receivables Purchase Agreement is in all respects ratified and confirmed and the
Receivables Purchase Agreement as so supplemented by this Assignment shall be
read, taken and construed as one and the same instrument.
7. Counterparts. This Assignment may be executed in two or more
counterparts (and by different parties in separate counterparts),each of which
shall be an original but all of which together shall constitute one and the same
instrument.
8. GOVERNING LAW. THIS ASSIGNMENT SHALL BE CONSTRUED IN ACCORDANCE THE
LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS OR ANY OTHER
JURISDICTION'S CONFLICT OF LAW PROVISIONS, OTHER THAN SECTION 5-1401 OF THE NEW
YORK GENERAL OBLIGATIONS LAW, AND THE OBLIGATIONS RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
9. Submission to Jurisdiction. Each of the parties hereto hereby
irrevocably and unconditionally:
a. submits for itself and its property in any legal action or
proceeding relating to this Assignment, any documents executed and delivered in
connection herewith or for recognition and enforcement of any judgment in
respect thereof, to the non-exclusive general
A-2
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 Appendix B to the Trust Sale and Servicing
Agreement; and
d. agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit the right
to ▇▇▇ in any other jurisdiction.
[signature page to follow]
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IN WITNESS WHEREOF, VCI and VDF have caused this Assignment to be duly
executed and delivered by their respective duly authorized officers as of the
day and the year first above written.
VW CREDIT, INC.,
By:__________________________________
Name:
Title:
By:__________________________________
Name:
Title:
VOLKSWAGEN DEALER FINANCE, LLC,
By:__________________________________
Name:
Title:
By:__________________________________
Name:
Title:
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Schedule 1
List of Accounts
A-5
EXHIBIT B
TO RPA
FORM OF REASSIGNMENT OF RECEIVABLES IN REMOVAL ACCOUNTS
(As required by Section 2.6(c) of the Receivables Purchase
Agreement referred to below)
REASSIGNMENT NO. ____ OF RECEIVABLES, dated as of______________, by and between
VOLKSWAGEN DEALER FINANCE LLC ("VDF"), as buyer, and VW CREDIT, INC.
("VCI"), as seller, pursuant to the Receivables Purchase Agreement referred to
below.
W I T N E S S E T H:
WHEREAS VCI and VDF are parties to the Amended and Restated Receivables
Purchase Agreement dated as of _____________ , 200 _ (as amended or
supplemented, the "Receivables Purchase Agreement");
WHEREAS, pursuant to the Receivables Purchase Agreement, VCI wishes to
remove all Receivables from certain Accounts and the Collateral Security thereof
(the "Removed Accounts") and to cause VDF to reconvey the Receivables of such
Removal Accounts and such Collateral Security, whether now existing or hereafter
created, and all amounts currently held by VDF or thereafter received by the
Trust in respect of such Removed Accounts, from VDF to VCI (as each such term is
defined in the Receivables Purchase Agreement); and
WHEREAS VDF is willing to accept such removal and to reconvey the
Receivables in the Removed Accounts, such Collateral Security and any related
amounts held or received by the Trust subject to the terms and conditions
hereof.
NOW, THEREFORE, VCI and VDF hereby agree as follows:
1. Defined Terms. All terms defined in the Receivables Purchase Agreement
and used herein shall have such defined meanings when used herein, unless
otherwise defined herein.
"Removal Date" shall mean, with respect to the Removal Accounts designated
hereby, ________________, ____.
2. Notice of Removal Accounts.
(a) Not less than five Business Days prior to the Removal Date, VCI
shall furnish to VDF, any Agent, any Enhancement Providers and the Rating
Agencies a written notice specifying the Determination Date (which may be the
Determination Date on which such notice is given) on which removal of the
Receivables of one or more Accounts will occur, such date being a Removal Date.
(b) On or before the fifth business day after the Removal Date, VCI
shall furnish to the Owner Trustee and the Indenture Trustee a computer file,
microfiche list or other list (which may be in electronic form) of the Removed
Accounts that were removed on the Removal Date, specifying for each Removed
Accounts as of the date of the Removal Date its
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number, the aggregate amount outstanding in such Removed Accounts and the
aggregate amount of Principal Receivables therein and represent that such
computer file, microfiche list or other list of the Removed Accounts is true and
complete in all material respects. Such file or list shall be marked as Schedule
1 to this Reassignment and shall be incorporated into and made a part of this
Reassignment as of the Removal Date and shall amend Schedule 1 to the
Receivables Purchase Agreement.
3. Conveyance of Receivables and Accounts.
a. VDF does hereby transfer, assign, set over and otherwise convey
to VCI, without recourse, representation or warranty on and after the Removal
Date, all right, title and interest of the Trust in, to and under all
Receivables now existing at the close of business on the Removal Date and
thereafter created from time to time until the termination of the Trust in
Removed Accounts designated hereby, all Collateral Security thereof, all monies
due or to become due and all amounts received with respect thereto (including
all Non-Principal Receivables), all proceeds (as defined in Section 9-102 of the
UCC) and Recoveries thereof.
b. If requested by VCI, in connection with such transfer, VDF agrees
to execute and deliver to VCI on or prior to the date of this Reassignment, a
termination statement with respect to the Receivables existing at the close of
business on the Removal Date and thereafter created from time to time and
Collateral Security thereof in the Removed Accounts reassigned hereby (which may
be a single termination statement with respect to all such Receivables and
Collateral Security) evidencing the release by the Trust of its lien on the
Receivables in the Removed Accounts and the Collateral Security, and meeting the
requirements of applicable state law, in such manner and such jurisdictions as
are necessary to remove such lien.
4. Acceptance by VDF. VDF hereby acknowledges that, prior to or
simultaneously with the execution and delivery of this Reassignment, VCI
delivered to VDF the computer file or such microfiche or written list (which may
be in electronic form) described in Section 2(b) of this Reassignment.
5. Representations and Warranties of VCI. VCI hereby represents and
warrants to VDF as of the date of this Reassignment and as of the Removal Date:
a. Legal, Valid and Binding Obligation. This Reassignment
constitutes a legal, valid and binding obligation of VCI, enforceable against
VCI in accordance with its terms except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or hereafter in effect affecting the enforcement of creditors' rights
generally and except as such enforceability may be limited by general principles
of equity (whether considered in a suit at law or in equity);
b. No Early Amortization Event. The removal of the Accounts hereby
removed shall not, in the reasonable belief of VCI, result in the occurrence of
an Early Amortization Event or cause the Pool Balance to be less than the
Required Pool Balance;
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c. Selection Procedures. No selection procedures reasonably believed
by VCI to be adverse to the interests of the Noteholders, Residual
Interestholder or any Enhancement Providers were utilized in selecting the
Accounts to be removed; and
d. True and Complete List. The list of Removed Accounts described in
Section 2(b) of this Assignment is, as of the Removal Date, true and complete in
all material respects.
Provided, however, that in the event that the removal on such Removal Date
relates solely to Ineligible Accounts, VCI shall be deemed to make only the
representations and warranties contained in paragraph 5(a) above.
6. Condition Precedent. In addition to the conditions precedent set forth
in Section 2.6 of the Receivables Purchase Agreement, the obligation of VDF to
execute and deliver this Reassignment is subject to VCI having delivered on or
prior to the Removal Date to VDF, any Agent, the Owner Trustee, the Indenture
Trustee and any Enhancement Providers an Officers' Certificate certifying that
(i) as of the Removal Date, all requirements set forth in Section 2.6 of the
Receivables Purchase Agreement for removing such Accounts and reconveying the
Receivables of such Removal Accounts and the Collateral Security, whether
existing at the close of business on the Removal Date or thereafter created from
time to time until the termination of the Trust, have been satisfied, and (ii)
each of the representations and warranties made by VCI in Section 5 hereof is
true and correct as of the date of this Reassignment and as of the Removal Date.
VDF may conclusively rely on such Officers' Certificate, shall have no duty to
make inquiries with regard to the matters set forth therein and shall incur no
liability in so relying.
7. Ratification of Agreement. As supplemented by this Reassignment, the
Receivables Purchase Agreement as so supplemented by this Reassignment shall be
read, taken and construed as one and the same instrument.
8. Counterparts. This Reassignment may be executed in two or more
counterparts, and by different parties on separate counterparts, each of which
shall be an original, but all of which shall constitute one and the same
instrument.
9. GOVERNING LAW. THIS REASSIGNMENT SHALL BE CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS OR ANY OTHER
JURISDICTION'S CONFLICT OF LAW PROVISIONS, OTHER THAN SECTION 5-1401 OF THE NEW
YORK GENERAL OBLIGATIONS LAW, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
10. Submission to Jurisdiction. Each of the parties hereto hereby
irrevocably and unconditionally:
a. submits for itself and its property in any legal action or
proceeding relating to this Assignment, any documents executed and delivered in
connection herewith or for recognition and enforcement of any judgment in
respect thereof, to the non-exclusive general
B-3
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 Appendix B to the Trust Sale and Servicing
Agreement; and
d. agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit the right
to ▇▇▇ in any other jurisdiction.
[signature page to follow]
B-4
IN WITNESS WHEREOF, the undersigned have caused this Reassignment to be
duly executed and delivered by their respective duly authorized officer on the
day and year first above written.
VW CREDIT, INC.
By:____________________________________
Name:
Title:
By:__________________________________
Name:
Title:
VOLKSWAGEN DEALER FINANCE, LLC
By:__________________________________
Name:
Title:
By:__________________________________
Name:
Title
B-5
