Exhibit 10.8
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VW CREDIT LEASING, LTD.,
[U.S. BANK NATIONAL ASSOCIATION],
Not in its Individual Capacity
but Solely as SUBI Trustee,
and
VW CREDIT, INC.,
as Servicer
TRANSACTION SUBI SUPPLEMENT 20[__]-[__] TO
SERVICING AGREEMENT
Dated as of [____________], [____]
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TABLE OF CONTENTS
PAGE
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ARTICLE V DEFINITIONS.................................................... 2
Section 5.1 Definitions.............................................. 2
ARTICLE VI REPRESENTATIONS AND WARRANTIES OF SERVICER.................... 3
Section 6.1 Existence and Power...................................... 3
Section 6.2 Authorization and No Contravention....................... 3
Section 6.3 No Consent Required...................................... 3
Section 6.4 Binding Effect........................................... 3
Section 6.5 Accuracy of Information.................................. 3
Section 6.6 No Proceedings........................................... 3
ARTICLE VII SPECIFIC REQUIREMENTS FOR ADMINISTRATION AND SERVICING OF THE
TRANSACTION SUBI PORTFOLIO............................................ 4
Section 7.1 Appointment of Servicer.................................. 4
Section 7.2 Servicer Bound by Servicing Agreement.................... 4
Section 7.3 Application of Proceeds.................................. 5
Section 7.4 Servicer Certificate..................................... 5
Section 7.5 Servicer Fee............................................. 6
Section 7.6 Insurance Lapses; Repairs................................ 6
Section 7.7 Licensing of Origination Trust........................... 6
Section 7.8 Servicer Advances........................................ 6
Section 7.9 Payment of Fees and Expenses............................. 6
Section 7.10 Annual Independent Public Accountants' Servicing Report.. 6
Section 7.11 Annual Officer's Certificate; Annual ERISA
Certification............................................ 7
Section 7.12 Postmaturity Term Extension.............................. 7
Section 7.13 Insurance Policies; Additional Insureds.................. 7
Section 7.14 Security Deposits........................................ 7
Section 7.15 Pull-Ahead and Other Early Termination Marketing
Programs................................................. 8
ARTICLE VIII TERMINATION OF SERVICER..................................... 8
Section 8.1 Termination of Servicer as to Transaction SUBI
Portfolio................................................ 8
Section 8.2 No Effect on Other Parties............................... 9
ARTICLE IX MISCELLANEOUS................................................. 9
Section 9.1 Amendment................................................ 9
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TABLE OF CONTENTS
(continued)
PAGE
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Section 9.2 Governing Law............................................ 10
Section 9.3 Notices.................................................. 10
Section 9.4 Third-Party Beneficiaries................................ 11
Section 9.5 Severability............................................. 11
Section 9.6 Binding Effect........................................... 11
Section 9.7 Article and Section Headings............................. 11
Section 9.8 Execution in Counterparts................................ 11
Section 9.9 Further Assurances....................................... 11
Section 9.10 Each SUBI Separate; Assignees of SUBI.................... 12
Section 9.11 No Petition.............................................. 12
Section 9.12 Submission to Jurisdiction; Waiver of Jury Trial......... 13
Section 9.13 Limitation of Liability of U.S. Bank..................... 13
Section 9.14 Information Requests..................................... 13
EXHIBIT A - Form of Annual ERISA Certification
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TRANSACTION SUBI SUPPLEMENT 20[__]-[__] TO
SERVICING AGREEMENT
THIS TRANSACTION SUBI SUPPLEMENT 20[__]-[__] TO SERVICING AGREEMENT (as
amended, modified or supplemented from time to time, the "Transaction SUBI
Servicing Supplement"), dated as of [_____], [_____], is among VW CREDIT
LEASING, LTD., a Delaware statutory trust (the "Origination Trust"), [U.S. BANK
NATIONAL ASSOCIATION, a national banking association, as successor to U.S. Bank
Trust National Association], not in its individual capacity but solely as a SUBI
Trustee (hereinafter, together with its successors and assigns, the "SUBI
Trustee") of the Origination Trust, and VW CREDIT, INC., a Delaware corporation
("VCI"), as Servicer (in such capacity, the "Servicer").
RECITALS
A. VCI (in its capacity as settlor, the "Settlor"), Wilmington Trust
Company, as Delaware Trustee (the "Delaware Trustee"), and U.S. Bank National
Association, as successor to U.S. Bank Trust National Association, as
Administrative Trustee and UTI Trustee (in such capacity, together with any
successor or permitted assign, the "Administrative Trustee" and the "UTI
Trustee", respectively; collectively with the Delaware Trustee and the SUBI
Trustee, the "Origination Trustees") have entered into that certain Trust
Agreement dated as of June 2, 1999 (as modified, supplemented or amended from
time to time, the "Origination Trust Agreement") pursuant to which the Settlor
formed the Origination Trust for the purpose of acting as agent and nominee
owner of various Origination Trust Assets in accordance with the Origination
Trust Agreement.
B. The Origination Trust and the Servicer also have entered into that
certain Servicing Agreement dated as of June 22, 1999, as amended and restated
as of December 21, 2000 (as modified, supplemented or amended from time to time,
the "Servicing Agreement"), which provides, among other things, for the
servicing of the Origination Trust Assets by the Servicer.
C. The Origination Trust Agreement contemplates that from time to time the
UTI Trustee, on behalf of the Origination Trust and at the direction of the
Initial Beneficiary, will identify and allocate on the Origination Trust's books
and records certain Origination Trust Assets within separate SUBI Portfolios and
create and issue to the Initial Beneficiary separate special units of beneficial
interest in the Origination Trust or "SUBIs", the beneficiary or beneficiaries
of which will hold an exclusive 100% beneficial ownership interest in the
related SUBI Portfolios, all as set forth in the Origination Trust Agreement.
D. Concurrently herewith, Volkswagen Auto Lease Underwritten Funding, LLC
(the "Transferor") will purchase the Transaction SUBI and the Transaction SUBI
Certificate from VCI and the Issuer will purchase the Transaction SUBI
Certificate from the Transferor. The Issuer is expected to fund such purchase
from proceeds of the issuance of the Notes and Certificates.
E. Concurrently herewith, Volkswagen Auto Lease Trust 20[__]-[__], a
Delaware statutory trust (the "Issuer"), is entering into an asset-backed
financing transaction pursuant to,
Transaction SUBI Servicing Supplement
among other agreements, an indenture (the "Indenture") with [_____], as
indenture trustee (the "Indenture Trustee"), pursuant to which the Issuer will
issue asset-backed notes and will grant a security interest to the Indenture
Trustee in certain of its assets.
F. Concurrently herewith, the Initial Beneficiary, the UTI Trustee, the
Administrative Trustee and the SUBI Trustee are entering into that certain
Transaction SUBI Supplement 20[__]-[__] to Origination Trust Agreement (as
amended, modified or supplemented from time to time, the "Transaction SUBI
Supplement") to supplement the terms of the Origination Trust Agreement (i) to
cause the UTI Trustee to identify and allocate Origination Trust Assets to a
particular SUBI Portfolio (the "Transaction SUBI Portfolio"), which shall
consist of Origination Trust Assets which shall constitute SUBI Assets, and (ii)
to create and issue to VCI a SUBI Certificate (such SUBI Certificate, together
with any replacements thereof, the "Transaction SUBI Certificate"), that will
evidence the entire beneficial ownership interest in the related SUBI Portfolio
(the "Transaction SUBI") including the Transaction Vehicles, with the
Origination Trust continuing to hold record title to the Transaction Vehicles as
agent and nominee for the holder of the Transaction SUBI Certificate, and (iii)
to set forth the terms and conditions thereof.
G. Concurrently herewith, the UTI Trustee, on behalf of the Origination
Trust and at the direction of the Initial Beneficiary, is issuing to VCI the
Transaction SUBI Certificate, representing all of the Initial Beneficiary's
right, title and interest in and to the Transaction SUBI, and the right to
realize on any property that may be included in the Transaction SUBI Portfolio,
and all proceeds thereof.
H. The Origination Trust desires to retain the Servicer to provide certain
services with respect to the Transaction SUBI Portfolio beneficially owned by
the Issuer, and the parties hereto desire, pursuant to this Transaction SUBI
Servicing Supplement, to supplement the terms of the Servicing Agreement insofar
as they apply to the Transaction SUBI Portfolio, providing for specific
servicing obligations that will benefit the Issuer, as holder of the Transaction
SUBI Certificate, and the Indenture Trustee, as the pledgee of the Transaction
SUBI Certificate on behalf of the Noteholders.
NOW THEREFORE, in consideration of the premises and the mutual
covenants herein contained and in the Servicing Agreement, the parties hereto
agree to the following supplemental obligations with regard to the Transaction
SUBI Portfolio:
ARTICLE V
DEFINITIONS
SECTION 5.1 DEFINITIONS. For all purposes of this Transaction SUBI
Servicing Supplement, except as otherwise expressly provided or unless the
context otherwise requires, (a) unless otherwise defined herein, all capitalized
terms used herein shall have the meanings attributed to them (i) in Appendix A
of the Indenture, (ii) if not defined therein, by the Servicing Agreement, (iii)
if not defined therein, by the Origination Trust Agreement, or (iv) if not
defined therein, by the Transaction SUBI Supplement, (b) the capitalized terms
defined in this Transaction SUBI Servicing Supplement have the meanings assigned
to them in this Transaction SUBI Servicing Supplement and include (i) all
genders and (ii) the plural as well as the singular,
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(c) all references to words such as "herein", "hereof" and the like shall refer
to this Transaction SUBI Servicing Supplement as a whole and not to any
particular article or section within this Transaction SUBI Servicing Supplement,
(d) the term "include" and all variations thereon shall mean "include without
limitation", and (e) the term "or" shall include "and/or".
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF SERVICER
The Servicer represents and warrants to the Transferor, the Issuer and the
Indenture Trustee on behalf of the Noteholders as follows:
SECTION 6.1 EXISTENCE AND POWER. The Servicer is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware and has all power and authority required to carry on its business as it
is now conducted. The Servicer 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 Servicer, taken as a whole.
SECTION 6.2 AUTHORIZATION AND NO CONTRAVENTION. The execution, delivery and
performance by the Servicer of each Transaction Document to which it is a party
(i) have been duly authorized by all necessary corporate action and (ii) do not
violate or constitute a default under (A) any applicable law, rule or
regulation, (B) its organizational instruments 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 any Transaction Unit or Collection
or give cause for the acceleration of any indebtedness of the Servicer.
SECTION 6.3 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 Servicer 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.
SECTION 6.4 BINDING EFFECT. Each Transaction Document to which the Servicer
is a party constitutes the legal, valid and binding obligation of the Servicer
enforceable against the Servicer 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.
SECTION 6.5 ACCURACY OF INFORMATION. All information heretofore furnished
by or on behalf of the Servicer in writing to the Agent for purposes of or in
connection with this Agreement or any transaction contemplated hereby is true
and accurate in all material respects on and as of the date such information was
furnished (except to the extent that such furnished information relates solely
to an earlier date, in which case such information is true and accurate in all
material respects on and as of such earlier date).
SECTION 6.6 NO PROCEEDINGS. There is no action, suit, proceeding or
investigation pending or, to the knowledge of the Servicer, threatened against
the Servicer which, either in any one instance or in the aggregate, would result
in any material adverse change in the business,
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operations, financial condition, properties or assets of the Servicer, or in any
material impairment of the right or ability of the Servicer to carry on its
business substantially as now conducted, or in any material liability on the
part of the Servicer, or which would render invalid this Agreement or the
Transaction Units or the obligations of the Servicer contemplated herein, or
which would materially impair the ability of the Servicer to perform under the
terms of this Agreement or any other Transaction Document.
ARTICLE VII
SPECIFIC REQUIREMENTS FOR
ADMINISTRATION AND SERVICING OF THE
TRANSACTION SUBI PORTFOLIO
SECTION 7.1 APPOINTMENT OF SERVICER.
(a) The Servicer shall manage, service and administer the Transaction
SUBI Assets, at its own expense and for the benefit of each holder and pledgee
of the Transaction SUBI, and shall make collections on the Transaction Units in
accordance with its Customary Servicing Practices in effect from time to time,
using the same degree of skill and attention that the Servicer exercises with
respect to all comparable retail automotive leases that it services for itself
or others.
(b) The Servicer may delegate its duties and obligations as Servicer
in accordance with Section 2.10 of the Servicing Agreement.
(c) If the Servicer shall commence a legal proceeding to enforce a
Transaction Unit, the Origination Trust shall thereupon be deemed to have
automatically assigned, solely for the purpose of collection, such Transaction
Unit to the Servicer. If in any enforcement suit or legal proceeding it shall be
held that the Servicer may not enforce a Transaction Unit on the ground that it
is not a real party in interest or a holder entitled to enforce such Transaction
Unit, the Issuer shall, at the Servicer's expense and direction, take steps to
enforce such Transaction Unit, including bringing suit in its name.
(d) The Servicer shall account for the Transaction SUBI Portfolio
separately from any other SUBI Portfolio.
SECTION 7.2 SERVICER BOUND BY SERVICING AGREEMENT.
(a) The Servicer shall continue to be bound by all provisions of the
Servicing Agreement with respect to the Transaction Units allocated to the
Transaction SUBI Portfolio, including the provisions of Article II thereof
relating to the administration and servicing of Leases; and the provisions set
forth herein shall operate either as additions to or modifications of the
existing obligations of the Servicer under the Servicing Agreement, as the
context may require. In the event of any conflict between the provisions of this
Transaction SUBI Servicing Supplement and the Servicing Agreement with respect
to the Transaction SUBI, the provisions of this Transaction SUBI Servicing
Supplement shall prevail.
(b) For purposes of determining the Servicer's obligations with
respect to the servicing of the Transaction SUBI Portfolio under this
Transaction SUBI Servicing Supplement,
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general references in the Servicing Agreement to: (i) a SUBI Portfolio shall be
deemed to refer more specifically to the Transaction SUBI Portfolio; (ii) a SUBI
Servicing Agreement Supplement shall be deemed to refer more specifically to
this Transaction SUBI Servicing Supplement; and (iii) a SUBI Supplement shall be
deemed to refer more specifically to the Transaction SUBI Supplement.
SECTION 7.3 APPLICATION OF PROCEEDS.
(a) Prior to the satisfaction and discharge of the Indenture with
respect to the Collateral, the Servicer shall pay an amount equal to all
Collections received in respect of the Transaction SUBI during any Collection
Period into the Collection Account on or prior to 11:00 a.m., New York City
time, on the following Payment Date; provided, however, that if the Monthly
Remittance Condition is not satisfied, the Servicer will be required to deposit
an amount equal to all Collections into the Collection Account within two
Business Days after receipt (it being understood that, with respect to Sales
Proceeds, the Servicer shall be obligated to remit an amount equal to Sales
Proceeds into the Collection Account and shall not be obligated to remit the
actual Sales Proceeds but instead such actual Sales Proceeds shall be held by
the Qualified Intermediary or in a Qualified Intermediary Account which shall
not constitute Collateral). The "Monthly Remittance Condition" shall be deemed
to be satisfied if (i) VCI is the Servicer, (ii) no Servicer Replacement Event
has occurred and is continuing, and (iii)(x) Volkswagen AG has a short-term debt
rating of at least "P-1" from Moody's and "A-1" from Standard & Poor's, (y) both
Moody's and Standard & Poor's are then rating a debt issuance of Volkswagen of
America, Inc. or VCI (and, in the case of VCI, such debt issuance is guaranteed
by Volkswagen AG) and (z) VCI remains a direct or indirect wholly-owned
subsidiary of Volkswagen AG. Pending deposit into the Collection Account,
Collections may be used by the Servicer at its own risk and for its own benefit
and will not be segregated from its own funds.
(b) After the satisfaction and discharge of the Indenture with respect
to the Collateral, the Servicer shall pay an amount equal to Collections in
accordance with the instructions provided from time to time by the holder of the
Transaction SUBI Certificate.
(c) Notwithstanding anything to the contrary contained in this
Agreement, for so long as the Monthly Remittance Condition has been satisfied,
the Servicer shall be permitted to deposit into the Collection Account only the
net amount distributable to the Issuer, as holder of the Transaction SUBI
Certificate, on the Payment Date. The Servicer shall, however, account for all
Collections as if all of the deposits and distributions described herein were
made individually.
SECTION 7.4 SERVICER CERTIFICATE. On each Determination Date prior to the
satisfaction and discharge of the Indenture with respect to the Collateral, the
Servicer shall deliver to the Indenture Trustee, the Issuer, the Administrator
and each Paying Agent a Servicer Certificate reflecting information as of the
close of business of the Servicer for the immediately preceding Collection
Period containing the information described in Section 8.3(a) of the Indenture.
At the sole option of the Servicer, each Servicer Certificate may be delivered
in electronic or hard copy format.
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SECTION 7.5 SERVICER FEE. Notwithstanding anything to the contrary in
Section 2.5 of the Servicing Agreement, on each Payment Date, the Issuer shall
pay to the Servicer in accordance with Section 8.4(a) of the Indenture the
Servicing Fee for the immediately preceding Collection Period as compensation
for its services. In addition, the Servicer may retain any Supplemental
Servicing Fees.
SECTION 7.6 INSURANCE LAPSES; REPAIRS. The Servicer shall not be required
to monitor whether any Lessee has, and shall have no liability in the event that
any Lessee fails to maintain in full force and effect, a physical damage
insurance policy covering any Transaction Unit or naming the Origination Trust
as loss payee. Without limiting the foregoing, in no event shall the Servicer be
obligated to perform or be liable for any repairs or maintenance with respect to
any Transaction Unit.
SECTION 7.7 LICENSING OF ORIGINATION TRUST. The Servicer shall cause the
Origination Trust to apply for and maintain at all times all licenses and
permits necessary to carry on the Origination Trust's leasing business in each
jurisdiction in which the Origination Trust operates, except where the failure
to have any license or permit would not materially and adversely affect the
business, properties, financial condition or results of operation of the
Origination Trust, taken as a whole.
SECTION 7.8 SERVICER ADVANCES. On each Payment Date, the Servicer shall
deposit into the Collection Account prior to 11:00 a.m., New York City time, an
advance in an amount equal to the lesser of (a) any shortfall in the amounts
available to make the payments in clauses (i) through (iv) of Section 8.4(a) of
the Indenture and (b) the aggregate scheduled monthly lease payments due on
Included Units but not received (or not received in full) during and prior to
the related Collection Period (an "Advance"); provided, however, that the
Servicer will not be obligated to make an Advance if the Servicer reasonably
determines in its sole discretion that such Advance is not likely to be repaid
from future cash flows from the Transaction SUBI Portfolio. No Advances will be
made with respect to Defaulted Leases. Notwithstanding the foregoing, following
any replacement of VCI as Servicer pursuant to Section 8.1, the successor
Servicer shall not be required to make any Advances.
SECTION 7.9 PAYMENT OF FEES AND EXPENSES. The Servicer shall pay all
expenses incurred in connection with the administration and servicing of the
Transaction SUBI and the Transaction Units, including, without limitation,
expenses incurred by it in connection with its activities hereunder, including
fees and disbursements of the SUBI Trustee, independent accountants, taxes
imposed on the Servicer and any SUBI Trustee indemnity claims.
SECTION 7.10 ANNUAL INDEPENDENT PUBLIC ACCOUNTANTS' SERVICING REPORT. On or
before the 90th day following the end of each fiscal year, beginning with the
fiscal year ending [___________], the Servicer shall cause a firm of independent
public accountants (who may also render other services to the Servicer, the
Transferor or their respective Affiliates) to furnish to the Indenture Trustee,
the Servicer, the Transferor and each Rating Agency each attestation report on
assessments of compliance with the Servicing Criteria with respect to the
Servicer or any affiliate thereof during the related fiscal year delivered by
such accountants pursuant to paragraph (c) of Rule 13a-18 or Rule 15d-18 of the
Exchange Act and Item 1122 of Regulation AB. The certification required by this
paragraph may be replaced by any similar certification using other
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procedures or attestation standards which are now or in the future in use by
servicers of comparable assets or which otherwise comply with any rule,
regulation, "no action" letter or similar guidance promulgated by the
Commission.
SECTION 7.11 ANNUAL OFFICER'S CERTIFICATE; ANNUAL ERISA CERTIFICATION.
(a) The Servicer will deliver to the Rating Agencies, the Issuer and
the Indenture Trustee on or before March 30 of each calendar year, beginning
with March 30, [____], an Officers' Certificate providing such information as is
required under Item 1123 of Regulation AB.
(b) The Servicer will deliver to the Rating Agencies, the Issuer and
the Indenture Trustee on or before March 30 of each calendar year, beginning
with March 30, [____], an Officers' Certificate substantially in the form of
Exhibit A with respect to the ERISA plans maintained or sponsored by the
Servicer or any of its ERISA Affiliates.
(c) The Servicer will deliver to the Issuer, on or before March 30 of
each year, beginning on March 30 [____], a report regarding the Servicer's
assessment of compliance with the Servicing Criteria during the immediately
preceding calendar year including disclosure of any material instance of
non-compliance identified by the Servicer, as required under paragraph (b) of
Rule 13a-18, Rule 15d-18 of the Exchange Act and Item 1122 of Regulation AB.
SECTION 7.12 POSTMATURITY TERM EXTENSION. Consistent with its Customary
Servicing Practices, the Servicer may, in its discretion, grant a Postmaturity
Term Extension with respect to any Transaction Lease. If the Servicer grants a
Postmaturity Term Extension with respect to a Transaction Lease, then the
Servicer shall direct the SUBI Trustee and the Servicer to reallocate the Unit
related to such Transaction Lease from the Transaction SUBI Portfolio to the UTI
Portfolio (if the Servicer is VCI) or to an Other SUBI designated by the
Servicer (if the Servicer is not VCI) on the Payment Date following the
beginning of the Collection Period during which such Postmaturity Term Extension
was granted. In consideration for such reallocation, the Servicer shall make a
payment to the Issuer equal to the Securitization Value of such Unit as of the
end of the Collection Period preceding such Payment Date by depositing such
amount into the Collection Account prior to 11:00 a.m., New York City time, on
such Payment Date.
SECTION 7.13 INSURANCE POLICIES; ADDITIONAL INSUREDS. The Servicer shall
cause all policies of insurance required to be maintained pursuant to Section
2.9 of the Servicing Agreement to name the Transferor, the Issuer, the Owner
Trustee and the Indenture Trustee as additional insureds.
SECTION 7.14 SECURITY DEPOSITS. In accordance with Section 2.4 of the
Servicing Agreement, on the Payment Date related to the Collection Period in
which a Security Deposit (as defined in the Servicing Agreement) becomes a
Collection, the Servicer shall deposit such amounts in the Collection Account.
SECTION 7.15 PULL-AHEAD AND OTHER EARLY TERMINATION MARKETING PROGRAMS. The
Servicer may, in its discretion, with respect to any Included Unit, permit the
Lessee under the related Lease to terminate such Lease prior to its scheduled
termination date as part of a "pull-ahead" [or other marketing program];
provided, however, that such early termination shall not be
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permitted unless all Pull-Ahead Amounts due and payable by the Lessee under such
Lease on or before the date of such Lessee's election to terminate the Lease
have been paid by or on behalf of such Lessee and are deposited in the
Collection Account within the time period thereafter stated in Section 7.3 of
this Transaction SUBI Servicing Supplement. Following such early termination,
the Servicer shall charge the related Lessee any applicable Excess Wear and Tear
Charges and Excess Mileage Charges in accordance with Customary Servicing
Practices with respect to Leases that are terminated early by the related Lessee
in the absence of a "pull-ahead" or other marketing program.
ARTICLE VIII
TERMINATION OF SERVICER
SECTION 8.1 TERMINATION OF SERVICER AS TO TRANSACTION SUBI PORTFOLIO.
(a) Upon the occurrence and continuation of any Servicer Replacement
Event, the Servicer shall provide to the Indenture Trustee, the Issuer, the
Administrator and each Rating Agency prompt notice specifying such Servicer
Replacement Event, together with a description of its efforts to perform its
obligations. The Servicer may not resign except in accordance with Section
2.10(a) of the Servicing Agreement.
(b) If a Servicer Replacement Event shall have occurred and be
continuing, the SUBI Trustee on behalf of the holder of the Transaction SUBI
Certificate, shall, at the direction of the Required Related Holders, by notice
given to the Servicer, the Issuer, the Indenture Trustee, the Administrator and
each Rating Agency, terminate the rights and obligations of the Servicer under
this Transaction SUBI Servicing Supplement and the Servicing Agreement with
respect to the Transaction SUBI and the Included Units. In the event the
Servicer is removed or resigns as Servicer with respect to servicing the
Transaction SUBI Assets, the Required Related Holders shall appoint a successor
Servicer. With respect to any Servicer Replacement Event, the SUBI Trustee,
acting on the direction of the Required Related Holders may waive any default of
the Servicer. For purposes of this Section, so long as the Lien of the Indenture
is in place, the "Required Related Holders" shall be deemed to be the Indenture
Trustee, acting at the direction of the Holders of not less than 66 2/3% of the
Outstanding Notes and thereafter, the Issuer, acting at the direction of the
Majority Certificateholders.
(c) If replaced, the Servicer agrees that it will use commercially
reasonable efforts to effect the orderly and efficient transfer of the servicing
of the Transaction Units to a successor Servicer.
(d) Upon the effectiveness of the assumption by the successor Servicer
of its duties pursuant to this Section 8.1, the successor Servicer shall be the
successor in all respects to the Servicer in its capacity as Servicer under the
Servicing Agreement with respect to the Transaction SUBI Portfolio, and shall be
subject to all the responsibilities, duties and liabilities relating thereto,
except with respect to the obligations of the predecessor Servicer that survive
its termination as Servicer as set forth in Section 8.1(e). No Servicer shall
resign or be relieved of its duties under the Servicing Agreement, as Servicer
of the Transaction SUBI Portfolio, until a newly appointed Servicer for the
Transaction SUBI Portfolio shall have assumed the responsibilities and
obligations of the resigning or terminated Servicer under this Transaction
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SUBI Servicing Supplement. In the event of a replacement of VCI as Servicer, the
Required Related Holders shall cause the successor Servicer to agree to
indemnify VCI against any losses, liabilities, damages or expenses (including
attorneys' fees) as a result of the negligence or willful misconduct of such
successor Servicer. The predecessor Servicer shall be entitled to receive
reimbursement for any outstanding Advances made with respect to the Transaction
Units to the extent funds are available therefor in accordance with the
Indenture.
(e) No termination or resignation of the Servicer as to the
Transaction SUBI Portfolio shall affect the obligations of the Servicer pursuant
to Section 2.7(c) of the Servicing Agreement; provided that following the
replacement of the Servicer pursuant to this Section 8.1, such Servicer shall
have no duties, responsibilities or other obligations hereunder with respect to
matters arising after such replacement.
SECTION 8.2 NO EFFECT ON OTHER PARTIES. Upon any termination of the rights
and powers of the Servicer with respect to the Transaction SUBI Portfolio
pursuant to Section 8.1 hereof, or upon any appointment of a successor Servicer
with respect to the Transaction SUBI Portfolio, all the rights, powers, duties
and obligations of the Origination Trustees, the UTI Holder and the Settlor
under the Origination Trust Agreement, the Servicing Agreement, the Transaction
SUBI Supplement, any other SUBI Supplement, any other SUBI Servicing Agreement
Supplement or any other Origination Trust Document shall remain unaffected by
such termination or appointment and shall remain in full force and effect
thereafter, except as otherwise expressly provided herein or therein.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 AMENDMENT.
(a) Notwithstanding any provision of the Servicing Agreement, the
Servicing Agreement, as supplemented by this Transaction SUBI Servicing
Supplement, to the extent that it deals solely with the Transaction SUBI and the
Transaction SUBI Portfolio, may be amended in accordance with this Section 9.1.
(b) Any term or provision of the Servicing Agreement or this
Transaction SUBI Servicing Supplement may be amended by the Servicer, without
the consent of any other Person; provided that (i) any amendment that materially
and adversely affects the interests of the Noteholders shall require the consent
of Noteholders evidencing not less than a majority of the aggregate outstanding
principal amount of the Outstanding Notes, voting as a single class, and (ii)
any amendment that materially and adversely affects the interests of the
Origination Trustees, the Indenture Trustee or the Owner Trustee shall require
the prior written consent of the Persons whose interests are materially and
adversely affected. An amendment shall be deemed not to materially and adversely
affect the interests of the Noteholders if the Rating Agency Condition is
satisfied with respect to such amendment.
(c) Notwithstanding the foregoing, no amendment shall (i) reduce the
interest rate or principal amount of any Note, or delay the Final Scheduled
Payment Date of any Note without the consent of the Holder of such Note, or (ii)
reduce the percentage of the aggregate
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outstanding principal amount of the Outstanding Notes, the Holders of which are
required to consent to any matter without the consent of the Holders of at least
the percentage of the aggregate outstanding principal amount of the Outstanding
Notes which were required to consent to such matter before giving effect to such
amendment.
(d) Notwithstanding anything herein to the contrary, any term or
provision of this Transaction SUBI Servicing Supplement may be amended by the
Servicer 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.
(e) 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.
(f) Prior to the execution of any amendment to this Transaction SUBI
Servicing Supplement, the Servicer 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 Transaction SUBI Servicing Supplement,
the Servicer shall furnish a copy of such amendment to each Rating Agency, the
Origination Trustees, the Owner Trustee and the Indenture Trustee.
(g) Prior to the execution of any amendment to this Transaction SUBI
Servicing Supplement, 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 the Servicing Agreement or this Transaction SUBI Servicing
Supplement and that all conditions precedent to the execution and delivery of
such amendment have been satisfied.
SECTION 9.2 GOVERNING LAW. THIS TRANSACTION SUBI SERVICING SUPPLEMENT SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL, SUBSTANTIVE LAWS
OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO THE RULES THEREOF RELATING TO
CONFLICTS OF LAW AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 9.3 NOTICES. The notice provisions of the Servicing Agreement shall
apply equally to this Transaction SUBI Servicing Supplement. All demands,
notices and communications hereunder shall be in writing and shall be delivered
or mailed by registered or certified first-class United States mail, postage
prepaid, hand delivery, any prepaid courier service, or by telecopier, and
addressed in each case as follows: (a) if to the Servicer, VW Credit, Inc., ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Secretary; Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇ and Attention: Treasurer; Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇; (b) if to
the SUBI Trustee, [U.S. Bank National Association, ▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Trust Department; Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇]; or (c) if to the Delaware Trustee,
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Wilmington Trust Company, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: Corporate Trust Administration; Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇; or, as to
each party, at such other address as shall be designated by such party in a
written notice to each other party. All notices and demands shall be deemed to
have been given upon actual receipt thereof to any officer of the Person
entitled to receive such notices and demands at the address of such Person for
notices hereunder.
SECTION 9.4 THIRD-PARTY BENEFICIARIES. The Issuer and the Indenture
Trustee, as holder and pledgee, respectively, of the Transaction SUBI
Certificate, and their respective successors, permitted assigns and pledgees are
third-party beneficiaries of the obligations of the parties hereto and may
directly enforce the performance of any of such obligations hereunder.
SECTION 9.5 SEVERABILITY. If one or more of the provisions of this
Transaction SUBI Servicing Supplement shall be for any reason whatever held
invalid or unenforceable, such provisions shall be deemed severable from the
remaining covenants, agreements and provisions of this Transaction SUBI
Servicing Supplement, and such invalidity or unenforceability shall in no way
affect the validity or enforceability of such remaining covenants, agreements
and provisions, or the rights of any parties hereto. To the extent permitted by
law, the parties hereto waive any provision of law that renders any provision of
this Transaction SUBI Servicing Supplement invalid or unenforceable in any
respect.
SECTION 9.6 BINDING EFFECT. The provisions of the Servicing Agreement and
this Transaction SUBI Servicing Supplement, insofar as they relate to the
Transaction SUBI Portfolio, shall be binding upon and inure to the benefit of
the respective successors and permitted assigns of the parties hereto.
SECTION 9.7 ARTICLE AND SECTION HEADINGS. The article and section headings
herein are for convenience of reference only, and shall not limit or otherwise
affect the meaning hereof.
SECTION 9.8 EXECUTION IN COUNTERPARTS. This Transaction SUBI Servicing
Supplement may be executed in any number of counterparts, each of which so
executed and delivered shall be deemed to be an original, but all of which shall
together constitute but one and the same instrument.
SECTION 9.9 FURTHER ASSURANCES. Each party will do such acts, and execute
and deliver to any other party such additional documents or instruments, as may
be reasonably requested in order to effect the purposes of this Transaction SUBI
Servicing Supplement and to better assure and confirm unto the requesting party
its rights, powers and remedies hereunder.
SECTION 9.10 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 Other SUBI Assets or the UTI Portfolio and
11
(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 Transaction SUBI Assets, (c) except to the extent
required by law, UTI Assets or SUBI Assets with respect to any SUBI (other than
the Transaction SUBI) shall not be subject to the claims, debts, liabilities,
expenses or obligations arising from or with respect to the Transaction SUBI, in
respect of such claim, (d)(i) no creditor or holder of a claim relating to the
Transaction SUBI or the Transaction SUBI Portfolio shall be entitled to maintain
any action against or recover any assets allocated to the UTI or the UTI
Portfolio or any Other SUBI or the assets allocated thereto, and (ii) no
creditor or holder of a claim relating to the UTI, the UTI Portfolio or any SUBI
other than the Transaction SUBI or any SUBI Assets other than the Transaction
SUBI Portfolio shall be entitled to maintain any action against or recover any
assets allocated to the Transaction SUBI, and (e) any purchaser, assignee or
pledgee of an interest in the Transaction SUBI or, the Transaction SUBI
Certificate, must, prior to or contemporaneously with the grant of any such
assignment, pledge or security interest, (i) give to the Origination Trust a
non-petition covenant substantially similar to that set forth in Section 6.9 of
the Origination Trust Agreement, and (ii) execute an agreement for the benefit
of each holder, assignee or pledgee from time to time of the UTI or UTI
Certificate and any Other SUBI or Other SUBI Certificate to release all claims
to the assets of the Origination Trust allocated to the UTI Portfolio and each
Other SUBI Portfolio and, in the event that such release is not given effect, to
fully subordinate all claims it may be deemed to have against the assets of the
Origination Trust allocated to the UTI Portfolio and each Other SUBI Portfolio.
SECTION 9.11 NO PETITION. With respect to each Bankruptcy Remote Party,
each party hereto (and each holder and pledgee of the Transaction SUBI, by
virtue of its acceptance of such SUBI or pledge thereof) 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, 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.
SECTION 9.12 SUBMISSION TO JURISDICTION; WAIVER OF JURY TRIAL. Each of the
parties hereto hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement or any documents executed and delivered in
connection herewith, or for recognition and enforcement of any judgment in
respect thereof, to the nonexclusive general
12
jurisdiction of the courts of the State of New York, the courts of the United
States of America for the Southern District of New York and appellate courts
from any thereof;
(b) consents that any such action or proceeding may be brought in such
courts and waives any objection that it may now or hereafter have to the venue
of such action or proceeding in any such court or that such action or proceeding
was brought in an inconvenient court and agrees not to plead or claim the same;
(c) agrees that service of process in any such action or proceeding
may be effected by mailing a copy thereof by registered or certified mail (or
any substantially similar form of mail), postage prepaid, to such Person at its
address determined in accordance with Section 9.3 of this Transaction SUBI
Servicing Supplement; 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 9.13 LIMITATION OF LIABILITY OF U.S. BANK. Notwithstanding anything
contained herein to the contrary, this instrument has been signed by U.S. Bank
not in its individual capacity but solely in its capacities as Administrative
Trustee and as SUBI Trustee and in no event shall U.S. Bank in its individual
capacity have any liability for the representations, warranties, covenants,
agreements or other obligations of the Origination Trust hereunder, as to all of
which recourse shall be had solely to the assets of the Origination Trust.
SECTION 9.14 INFORMATION REQUESTS. The parties hereto shall provide any
information reasonably requested by the Servicer, the Issuer, the Transferor or
any of their Affiliates, in order to comply with or obtain more favorable
treatment under any current or future law, rule, regulation, accounting rule or
principle.
SECTION 9.15 REGULATION AB. The Servicer shall cooperate fully with the
Transferor and the Issuer to deliver to the Transferor and the Issuer (including
any of its assignees or designees) any and all statements, reports,
certifications, records and any other information necessary in the good faith
determination of the Transferor or the Issuer to permit the Transferor to comply
with the provisions of Regulation AB, together with such disclosures relating to
the Servicer and the Units, or the servicing of the Units, reasonably believed
by the Transferor to be necessary in order to effect such compliance.
[SIGNATURES ON THE FOLLOWING PAGE]
13
IN WITNESS WHEREOF, the parties hereto have caused this Transaction SUBI
Servicing Supplement to be duly executed by their respective officers duly
authorized as of the day and year first above written.
VW CREDIT LEASING, LTD.
By: U.S. Bank National Association, not
in its individual capacity but
solely as Administrative Trustee
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
S-1
VW CREDIT, INC., as Servicer
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
S-2
[U.S. BANK NATIONAL ASSOCIATION], not in
its individual capacity but solely as
SUBI Trustee
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
S-3
EXHIBIT A
FORM OF ANNUAL ERISA CERTIFICATION
(As required to be delivered on or before [April 30] of each
calendar year beginning with [April 30], [____], pursuant to
Section 7.11 of the Transaction SUBI Servicing Supplement)
VW CREDIT, INC.
----------
VOLKSWAGEN AUTO LEASE TRUST 20[__]-[__]
----------
The undersigned, duly authorized representatives of VW Credit, Inc.
("VCI"), as Servicer, pursuant to the Transaction SUBI Supplement 20[__]-[__] to
Servicing Agreement dated as of [__________], [____] (as amended and
supplemented, or otherwise modified and in effect from time to time, the
"Transaction SUBI Servicing Supplement"), by and among VW CREDIT LEASING, LTD.,
VCI, as Servicer, and U.S. BANK NATIONAL ASSOCIATION, not in its individual
capacity but solely as SUBI Trustee, do hereby certify that:
1. The undersigned are Authorized Officers of VCI.
2. As of the end of VCI's preceding fiscal year, with respect to the ERISA
plans subject to Title IV of ERISA maintained or sponsored by VCI or any of
VCI's ERISA Affiliates (i.e., any member of VCI's "controlled group,"
within the meaning of Section 4001 of ERISA) (collectively, the "Plans"):
(a) Plan assets exceed the present value of accrued benefits under
each of the Plans as of the close of the most recent Plan year, as
required to be reported in the financial statements for such Plan
filed with the most recent Form 5500 for such Plan (the "Most Recent
Plan Financial Statements").
(b) Neither VCI nor any of its ERISA Affiliates (i) anticipates that
the value of the assets of any Plan it maintains would not be
sufficient to cover any Current Liability; or (ii) is contemplating
benefit improvements with respect to any Plan then maintained by any
such entity or the establishment of any new Plan, either of which
would cause any such entity to maintain a Plan with Unfunded Current
Liability. The term "Current Liability" means, with respect to any
Plan, the present value of the accrued benefits under the Plan, as set
forth in the Most Recent Plan Financial Statements. The term "Unfunded
Current Liability" of any Plan means the amount, if any, by which the
present value of the accrued benefits
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under the Plan, as reported in the Most Recent Plan Financial
Statements, exceeds the value of the Plan's assets, as set forth in
the Most Recent Plan Financial Statements.
(c) If all of the Plans (other than a multiemployer Plan) were
terminated (disregarding any Plans with surpluses), the unfunded
liabilities at such date with respect to such Plans, their
participants or beneficiaries, and the PBGC, would not have exceeded
[5%] of the consolidated net worth of Volkswagen AG or [25%] of the
consolidated net worth of Volkswagen of America, Inc. at such date.
(d) If VCI or any of VCI's ERISA Affiliates withdrew or were to have
withdrawn from all multiemployer Plans at such date, the aggregate
withdrawal liability would not have exceeded [5%] of the consolidated
net worth of Volkswagen AG or [25%] of the consolidated net worth of
Volkswagen of America, Inc. at such date.
(e) No accumulated funding deficiency or waived funding deficiency as
defined in section 412 of the IRC or under any multiemployer plan or
collective bargaining agreement existed at such date and there was no
failure to make any required contribution under the minimum funding
requirements of the Internal Revenue Code.
Capitalized terms used but not defined herein are used as defined in
the Transaction SUBI Servicing Supplement.
IN WITNESS WHEREOF, each of the undersigned has duly executed this
Certificate this ____ day of __________.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
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