EXHIBIT 10.6
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SUBI TRANSFER AGREEMENT
dated as of November [ ], 2002
between
VOLKSWAGEN AUTO LEASE UNDERWRITTEN FUNDING, LLC,
as Seller
and
VOLKSWAGEN AUTO LEASE TRUST 2002-A,
by U.S. Bank Trust National Association,
not in its individual capacity but solely as Owner Trustee,
as Buyer
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TABLE OF CONTENTS
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 Liens 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.....................................................6
SECTION 3.5 Counterparts......................................................7
SECTION 3.6 Amendment.........................................................7
SECTION 3.7 Waivers...........................................................7
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....................................8
SECTION 3.13 Nonpetition Covenant..............................................8
SECTION 3.14 Each SUBI Separate; Assignees of SUBI.............................9
SECTION 3.15 Submission to Jurisdiction........................................9
SECTION 3.16 Limitation of Liability of Owner Trustee.........................10
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SUBI TRANSFER AGREEMENT
THIS SUBI TRANSFER AGREEMENT (as further amended from time to time, this
"Agreement") is made and entered into as of November [ ], 2002 by VOLKSWAGEN
AUTO LEASE UNDERWRITTEN FUNDING, LLC, a Delaware limited liability company (the
"Seller"), and VOLKSWAGEN AUTO LEASE TRUST 2002-A, by U.S. Bank Trust National
Association, not in its individual capacity but solely as owner trustee (the
"Buyer").
WITNESSETH:
WHEREAS, VW Credit Leasing, Ltd. is a Delaware business 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 U.S. Bank Trust National
Association, as owner trustee, formed Volkswagen Auto Lease Trust 2002-A as a
Delaware common law 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 2002-A to Origination Trust Agreement (as amended,
modified or supplemented from time to time, the "Transaction SUBI Supplement")
to create a special unit of beneficial interest (the "Transaction SUBI");
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 November [ ], 2002 (the "Indenture") with The Bank of New
York, 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:
ARTICLE I
DEFINITIONS
SECTION 1.1 Certain Terms. Terms defined in Appendix A to the Indenture
are, unless otherwise defined herein or as 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, as of any date, 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(b) 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 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.
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(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 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.
(b) The representations, warranties and covenants set forth on Schedule
I hereto shall be a part of this Agreement for all purposes.
SECTION 2.4 Protection of Title.
(a) Filings. The Seller shall execute and file such financing statements
and cause to be executed and filed such continuation and other statements, all
in such manner and in such places as may be required by law fully to preserve,
maintain and protect the interest of the Buyer under this Agreement in the
Transaction SUBI. The Seller shall deliver (or cause to be delivered) to the
Buyer file-stamped copies of, or filing receipts for, any document filed as
provided above, as soon as available following such filing.
(b) Name Change. The Seller shall not change its name, identity or
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
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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 Liens or Interests. Except for the conveyances and
grants of security interests pursuant to this Agreement and the other
Transaction Documents, the Seller shall not sell, pledge, assign or transfer the
Transaction SUBI to any other Person, or grant, create, incur, assume or suffer
to exist any Adverse Claim on any interest therein, and the Seller shall defend
the right, title and interest of the Buyer in, to and under the Transaction SUBI
against all claims of third parties claiming through or under the Seller.
ARTICLE III
MISCELLANEOUS
SECTION 3.1 Transfers Intended as Sale; Security Interest.
(a) Each of the parties hereto expressly intends and agrees that the
transfers contemplated and effected under this Agreement are complete and
absolute sales and contributions rather than pledges or assignments of only a
security interest and shall be given effect as such for all purposes. The sale
and contribution of the Transaction SUBI and the Transaction SUBI Certificate
shall be reflected on the Seller's balance sheet and other financial statements
as a sale and contribution of assets by the Seller. The sales and contributions
by the Seller of the Transaction SUBI and the Transaction SUBI Certificate and
the beneficial interest in the Units allocated thereto hereunder are and shall
be without recourse to, or representation or warranty (express or implied) by,
the Seller, except as otherwise specifically provided herein. The limited rights
of recourse specified herein against the Seller are intended to provide a remedy
for breach of representations and warranties relating to the condition of the
property sold, rather than to the collectibility of underlying indebtedness, and
therefore are intended to be consistent with warranties ordinarily given by a
seller of goods under Article 2 of the Uniform Commercial Code.
(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
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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 Uniform
Commercial Code and the Uniform Commercial Code 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 (or, if applicable law requires
title to property of a common law trust to be vested in a trustee or
trustees, to the Owner Trustee) 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 Uniform Commercial Code and the Uniform Commercial Code of any
other applicable jurisdiction; and
(iv) Notifications to persons holding such property, and
acknowledgments, receipts or confirmations from persons holding such
property, shall be deemed to be notifications to, or acknowledgments,
receipts or confirmations from, bailees or agents (as applicable) of the
Buyer for the purpose of perfecting such security interest under
applicable law.
SECTION 3.2 Specific Performance. Either party may enforce specific
performance of this Agreement.
SECTION 3.3 Notices, Etc. All notices and other communications provided
for hereunder shall, unless otherwise stated herein, be in writing (including
facsimile communication) and shall be personally delivered or sent by certified
mail, postage prepaid, or by facsimile, to the intended party at the address or
facsimile number of such party set forth under its name on the signature pages
hereof or at such other address or facsimile number as shall be designated by
such party in a written notice to the other parties hereto. All such notices and
communications shall be effective (a) if personally delivered when received, (b)
if sent by certified mail, three Business Days after having been deposited in
the mail, postage prepaid, (c) if sent by overnight courier, one Business Day
after having been given to such courier, and (d) if transmitted by facsimile,
when sent, receipt confirmed by telephone or electronic means.
SECTION 3.4 CHOICE OF LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL, SUBSTANTIVE LAWS OF THE STATE OF NEW
YORK WITHOUT REFERENCE TO THE RULES THEREOF RELATING TO CONFLICTS OF LAW AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
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SECTION 3.5 Counterparts. This Agreement may be executed in any number
of counterparts, each of which so executed shall be deemed to be an original,
but all of such counterparts shall together constitute but one and the same
instrument.
SECTION 3.6 Amendment.
(a) Any term or provision of this Agreement may be amended by the
parties hereto with the consent of the Indenture Trustee; provided that such
amendment shall not, as evidenced by an Opinion of Counsel delivered to the
Indenture Trustee, materially and adversely affect the interests of the
Noteholders.
(b) Any term or provision of this Agreement may be amended without the
consent of the Noteholders or any other Person in any respect by the parties
hereto, including (without limitation) to cure any ambiguity, correct or
supplement any provision in this Agreement, add any provisions to this
Agreement, change in any manner or eliminate any of the provisions in this
Agreement or modify the rights of the parties to this Agreement; provided that
such amendment shall not, in the good faith judgment of the parties hereto,
materially and adversely affect the interests of the Noteholders.
(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 any law or regulation or any
accounting rule or principle; it being a condition to any such amendment that
the Rating Agency Condition shall have been satisfied.
(d) Prior to the execution of any such amendment, the Buyer shall
furnish at least ten (10) days' prior written notification (or, if ten (10)
days' advance notice is impracticable, as much advance notice as is practicable)
of the substance of such amendment to each Rating Agency; and no later than ten
(10) Business Days after the execution of any such amendment or consent, the
Buyer shall furnish a copy of such amendment or consent to each Rating Agency,
the Owner Trustee and the Indenture Trustee.
(e) Prior to the execution of any amendment to this Agreement, the
Transferor, the Owner Trustee, the Indenture Trustee and the Origination
Trustees shall be entitled to receive and conclusively rely upon an Opinion of
Counsel stating that the execution of such amendment is authorized or permitted
by 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
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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 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
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statute now or hereafter in effect in any jurisdiction. Each of the parties
hereto agrees that, prior to the date which is one year and one day after the
payment in full of all obligations under each Financing, it will not institute
against, or join any other Person in instituting against, any Bankruptcy Remote
Party an action in bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings or similar proceeding under the laws of the United
States or any State of the United States.
SECTION 3.14 Each SUBI Separate; Assignees of SUBI. Each party hereto
acknowledges and agrees (and each holder or pledgee of the Transaction SUBI, by
virtue of its acceptance of such Transaction SUBI or pledge thereof,
acknowledges and agrees) that (a) the Transaction SUBI is a separate series of
the Origination Trust as provided in Section 3806(b)(2) of Chapter 38 of Title
12 of the Delaware Code, 12 Del. Code Section 3801 et seq., (b)(i) the debts,
liabilities, obligations and expenses incurred, contracted for or otherwise
existing with respect to the Transaction SUBI or the Transaction SUBI Portfolio
shall be enforceable against the Transaction SUBI Portfolio only and not against
any Transaction SUBI Assets or the UTI Portfolio and (ii) the debts,
liabilities, obligations and expenses incurred, contracted for or otherwise
existing with respect to any Other SUBI, any Other SUBI Portfolio, the UTI or
the UTI Portfolio shall be enforceable against such Other SUBI Portfolio or the
UTI Portfolio only, as applicable, and not against the Transaction SUBI or any
Other SUBI Assets, (c) except to the extent required by law, UTI Assets or SUBI
Assets with respect to any SUBI (other than the Transaction SUBI) shall not be
subject to the claims, debts, liabilities, expenses or obligations arising from
or with respect to the Transaction SUBI in respect of such claim, (d)(i) no
creditor or holder of a claim relating to the Transaction SUBI or the
Transaction SUBI Portfolio shall be entitled to maintain any action against or
recover any assets allocated to the UTI or the UTI Portfolio or any Other SUBI
or the assets allocated thereto, and (ii) no creditor or holder of a claim
relating to the UTI, the UTI Portfolio or any SUBI other than the Transaction
SUBI or any SUBI Assets other than the Transaction SUBI Portfolio shall be
entitled to maintain any action against or recover any assets allocated to the
Transaction SUBI, and (e) any purchaser, assignee or pledgee of an interest in
the Transaction SUBI or the Transaction SUBI Certificate, any Other SUBI, any
Other 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 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. 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;
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(b) consents that any such action or proceeding may be brought in such
courts and waives any objection that it may now or hereafter have to the venue
of such action or proceeding in any such court or that such action or proceeding
was brought in an inconvenient court and agrees not to plead or claim the same;
(c) agrees that service of process in any such action or proceeding may
be effected by mailing a copy thereof by registered or certified mail (or any
substantially similar form of mail), postage prepaid, to such Person at its
address determined in accordance with Section 3.3 of this Agreement; 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.
SECTION 3.16 Limitation of Liability of Owner Trustee. Notwithstanding
anything contained herein to the contrary, this instrument has been signed by
U.S. Bank Delaware not in its individual capacity but solely in its capacity as
Owner Trustee of the Issuer and in no event shall U.S. Bank Delaware 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:_________________________________
Name:____________________________
Title:___________________________
By:_________________________________
Name:____________________________
Title:___________________________
Address:
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Treasurer
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
S-1
VOLKSWAGEN AUTO LEASE TRUST 2002-A
By: U.S. Bank Trust National Association, not in
its individual capacity but solely as owner
trustee
By:_______________________________________________
Name:__________________________________________
Title:_________________________________________
Address:
c/o U.S. Bank Trust National Association
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Corporate Trust Department
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
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SCHEDULE I
PERFECTION REPRESENTATIONS, WARRANTIES AND COVENANTS
In addition to the representations, warranties and covenants contained
in the SUBI Sale Agreement, the Seller hereby represents, warrants, and
covenants to the Buyer as follows on the Closing Date:
1. The SUBI 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 Liens and is
enforceable as such as against creditors of and purchasers from the Seller.
2. The Transaction SUBI Certificate constitutes a "general intangible,"
"instrument," "investment property," 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 Lien, 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 Lien 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.
10. Survival of Perfection Representations. Notwithstanding any other provision
of the SUBI Transfer Agreement or any other Transaction Document, the perfection
representations contained in this Schedule shall be continuing, and remain in
full force and effect (notwithstanding any termination of the commitments or any
replacement of the Servicer or termination of the Servicer's rights to act as
such) until such time as all obligations under the Indenture have been finally
and fully paid and performed.
11. No Waiver. The parties to the SUBI Transfer Agreement: (i) shall not, unless
the Rating Agency Condition shall have been satisfied, waive any of the
perfection representations contained in this Schedule; (ii) shall provide the
Rating Agencies with prompt written notice of any breach of perfection
representations contained in this Schedule and (iii) shall not, unless the
Rating Agency Condition shall have been satisfied, waive a breach of any of the
perfection representations contained in this Schedule.
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