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Exhibit 10.3
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SUBI SALE AGREEMENT
dated as of [__________], [_____]
between
VW CREDIT, INC.,
as Seller
and
VOLKSWAGEN AUTO LEASE UNDERWRITTEN FUNDING, LLC,
as Buyer
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TABLE OF CONTENTS
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PAGE
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ARTICLE I
DEFINITIONS....................................................
1
SECTION 1.1
Certain
Terms............................................ 1
SECTION 1.2
Other Definitional
Provisions............................ 2
SECTION 1.3
Other
Terms.............................................. 2
SECTION 1.4
Computation of Time
Periods.............................. 2
ARTICLE II PURCHASE AND
CONTRIBUTION..................................... 2
SECTION 2.1
Agreement to Sell and
Contribute......................... 2
SECTION 2.2
Consideration and
Payment................................ 2
SECTION 2.3
Representations,
Warranties and Covenants................ 3
SECTION 2.4
Subordinated
Note........................................ 5
SECTION 2.5
Protection of
Title...................................... 5
SECTION 2.6
Other Adverse Claims
or Interests........................ 6
ARTICLE III
MISCELLANEOUS................................................
6
SECTION 3.1
Transfers Intended as
Sale; Security Interest............ 6
SECTION 3.2
Specific
Performance..................................... 7
SECTION 3.3
Notices,
Etc............................................. 7
SECTION 3.4
Choice of
Law............................................ 7
SECTION 3.5
Counterparts.............................................
8
SECTION 3.6
Amendment................................................
8
SECTION 3.7
Waivers..................................................
9
SECTION 3.8
Entire
Agreement......................................... 9
SECTION 3.9
Severability of
Provisions............................... 9
SECTION 3.10
Binding Effect; Assignability............................
9
SECTION 3.11
Acknowledgment and Agreement.............................
9
SECTION 3.12 No
Waiver; Cumulative Remedies........................... 10
SECTION 3.13
Nonpetition Covenant.....................................
10
SECTION 3.14
Each SUBI Separate; Assignees of SUBI....................
10
SECTION 3.15
Submission to Jurisdiction; Waiver of Jury Trial.........
11
Schedule I Representations and Warranties with Respect to Units
Schedule II Perfection Representations, Warranties and
Covenants
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SUBI SALE AGREEMENT
THIS
SUBI SALE AGREEMENT is made and entered into as of [_____],
[_____]
(as amended, supplemented or modified from time to time, this
"Agreement") by VW
CREDIT, INC., a Delaware corporation (the "Seller"), and VOLKSWAGEN
AUTO LEASE
UNDERWRITTEN FUNDING, LLC, a Delaware limited liability company
(the "Buyer").
WITNESSETH:
WHEREAS, VW Credit Leasing, Ltd. is a Delaware statutory trust
(the
"Origination Trust") formed and operated pursuant to that certain
Trust
Agreement dated as of June 2, 1999 (as amended, modified or
supplemented from
time to time, the "Origination Trust Agreement") for the purpose,
among other
things, of acquiring title to Units;
WHEREAS, on the date hereof, the Seller, as owner of the entire
undivided
interest in the Origination Trust (the "UTI Portfolio"), and U.S.
Bank National
Association, as UTI Trustee (in such capacity, the "UTI Trustee"),
SUBI Trustee
(in such capacity, the "SUBI Trustee") and Administrative Trustee
(in such
capacity, the "Administrative Trustee"; together with the UTI
Trustee, the SUBI
Trustee and Wilmington Trust Company, as Delaware Trustee (the
"Delaware
Trustee"), the "Origination Trustees"), are entering into that
certain
Transaction SUBI Supplement 20[__]-[__] to Origination Trust
Agreement (as
amended, modified or supplemented from time to time, the
"Transaction SUBI
Supplement") to create a special unit of beneficial interest (the
"Transaction
SUBI"); and
WHEREAS, the Seller desires to sell to the Buyer, and the Buyer
desires to
acquire, the Seller's entire beneficial ownership interest in (A)
the Units
allocated to the Transaction SUBI (the "Transaction SUBI
Portfolio") and (B) the
certificate issued as evidence thereof (the "Transaction SUBI
Certificate");
NOW,
THEREFORE, in consideration of the premises and the mutual
agreements
set forth herein, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Certain Terms. Terms defined in Appendix A to the
Indenture,
dated as of [_____], [_____] (as amended, supplemented or modified
from time to
time, the "Indenture"), between Volkswagen Auto Lease Trust
20[__]-[__], a
Delaware statutory trust (the "Issuer"), and [_____], as indenture
trustee, are,
unless otherwise defined herein or unless the context otherwise
requires, used
herein as defined therein. In addition, the following terms shall
have the
following meanings (such terms applicable to both the singular and
plural form):
"Allocation Price" means, with respect to any Unit, an amount equal
to 100%
of the Securitization Value thereof as of the Cut-Off Date.
SUBI Sale Agreement
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"SUBI Allocation Price" means, with respect to all Units to be
allocated to
the Transaction SUBI in accordance with Section 2.1 on the Closing
Date, the
aggregate of the Allocation Prices for all Units to be so allocated
on such
date.
SECTION 1.2 Other Definitional Provisions.
(a)
Each term defined in the singular form in this Agreement shall mean
the
plural thereof when the plural form of such term is used in this
Agreement or
any certificate, report or other document made or delivered
pursuant hereto, and
each term defined in the plural form in shall mean the singular
thereof when the
singular form of such term is used herein or therein.
(b)
The words "hereof", "herein", "hereunder" and similar terms when
used
in this Agreement shall refer to this Agreement as a whole and not
to any
particular provision of this Agreement, and article, section,
subsection,
schedule and exhibit references herein are references to articles,
sections,
subsections, schedules and exhibits to or of this Agreement unless
otherwise
specified.
SECTION 1.3 Other Terms. All accounting terms not specifically
defined
herein or in Appendix A to the Indenture shall be construed in
accordance with
GAAP. All terms used in Article 9 of the UCC and not specifically
defined herein
or in Appendix A to the Indenture are used herein as defined in
such Article 9.
SECTION 1.4 Computation of Time Periods. Unless otherwise stated in
this
Agreement, in the computation of a period of time from a specified
date to a
later specified date, the word "from" means "from and including"
and the words
"to" and "until" each mean "to but excluding".
ARTICLE II
PURCHASE AND CONTRIBUTION
SECTION 2.1 Agreement to Sell and Contribute.
On
the terms and subject to the conditions set forth in this
Agreement, on
the date hereof, the Seller hereby:
(a)
transfers, assigns, sets over, sells and otherwise conveys to
the
Buyer, and the Buyer hereby purchases from the Seller, all of the
Seller's
right, title and interest in and to the Transaction SUBI
Certificate and the
Transaction SUBI, including, but not limited to, all Collections
thereunder
after the Cut-Off Date; and
(b)
directs the UTI Trustee and the Servicer to identify from the
Origination Trust Assets allocable to the UTI Interest, and to
allocate to the
Transaction SUBI Portfolio represented by the Transaction SUBI
Certificate, the
Transaction SUBI Assets identified in Section 11.1 of the
Transaction SUBI
Supplement.
SECTION 2.2 Consideration and Payment. In consideration of the
transfer of
the Transaction SUBI transferred to the Buyer on the Closing Date,
the Buyer
shall pay to the Seller
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on the Closing Date the SUBI Allocation Price with respect thereto
by (i) making
a cash payment to the Seller to the extent that the Buyer has
received a cash
payment from the Issuer pursuant to the SUBI Transfer Agreement and
(ii) if the
SUBI Allocation Price to be paid for the Units exceeds the amount
of any cash
payment for the account of the Seller on such day pursuant to
clause (i), (x)
such excess shall automatically be considered to have been
contributed to the
Buyer by the Seller as a capital contribution or (y) at the option
of the Seller
(as evidenced by notice to the Buyer), to the extent the Buyer
would not be left
with insufficient capital to meet, with a reasonable degree of
certainty, its
reasonably foreseeable obligations as they come due, the Buyer may
increase the
principal amount due and outstanding under the Subordinated Note
(as defined
below). As of the Closing Date, the Buyer paid in cash
$[__________] of the SUBI
Allocation Price, and the Seller contributed to the Buyer such
Units as had an
aggregate Securitization Value equal to $[ ] and received the
Subordinated Note
(as defined below) in an initial outstanding principal amount of
$[__________].
SECTION 2.3 Representations, Warranties and Covenants.
(a)
The Seller hereby represents and warrants to the Buyer that, as of
the
date hereof:
(i) Existence and Power. The Seller is a corporation and the
Origination Trust is a statutory trust, in each case, duly
organized,
validly existing and in good standing under the laws of its state
of
organization, and each of the Seller and the Origination Trust has
all
power and authority required to carry on its business as it is
now
conducted. Each of the Seller and the Origination Trust has
obtained all
necessary licenses and approvals, in all jurisdictions where the
failure to
do
so would materially and adversely affect the business,
properties,
financial condition or results of operations of the Seller or
the
Origination Trust, respectively, taken as a whole.
(ii) Corporate Authorization and No Contravention. The
execution,
delivery and performance by each of the Seller and the Origination
Trust of
each
Transaction Document to which it is a party (i) have been duly
authorized by all necessary corporate action, (ii) do not
contravene or
constitute a default under (A) any applicable law, rule or
regulation, (B)
its
organizational documents or (C) any agreement, contract, order or
other
instrument to which it is a party or its property is subject and
(iii) will
not
result in any Adverse Claim on the Transaction SUBI or give cause
for
the
acceleration of any indebtedness of the Seller or the
Origination
Trust.
(iii) No Consent Required. No approval, authorization or other
action
by,
or filing with, any Governmental Authority is required in
connection
with
the execution, delivery and performance by the Seller or the
Origination Trust of any Transaction Document other than UCC
filings and
other than approvals and authorizations that have previously been
obtained
and
filings which have previously been made.
(iv) Binding Effect. Each Transaction Document to which the Seller
or
the
Origination Trust is a party constitutes the legal, valid and
binding
obligation of such Person enforceable against such Person in
accordance
with
its terms, except as limited by bankruptcy, insolvency, or
other
similar laws of general application relating to or
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affecting the enforcement of creditors' rights generally and
subject to
general principles of equity.
(v) Ownership and Transfer of Transaction SUBI. Immediately
preceding
its
sale of the Transaction SUBI to the Buyer, the Seller was the owner
of
the
Transaction SUBI, free and clear of any Adverse Claim, and after
such
sale
of the Transaction SUBI to the Buyer, the Buyer shall at all times
be
entitled, with respect to the Transaction SUBI, to all of the
rights and
benefits of a holder of a SUBI under the Origination Trust
Documents.
(vi) Applicable Law. Each of the Seller and the Origination Trust
is
in
compliance with all Applicable Laws, the failure to comply with
which
would have a material adverse effect.
(vii) Litigation. There are no actions, suits or proceedings
pending
or,
to the knowledge of the Seller, threatened against the Seller
before or
by
any Governmental Authority that (i) question the validity or
enforceability of this Agreement or adversely affect the ability of
the
Seller to perform its obligations hereunder or (ii) individually or
in the
aggregate would have a material adverse effect. Neither the Seller
nor the
Origination Trust is in default with respect to any orders of
any
Governmental Authority, the default under which individually or in
the
aggregate would have a material adverse effect.
(viii) Status of Seller. The Seller is not an "investment
company"
within the meaning of the Investment Company Act of 1940, as
amended. The
Seller is not subject to regulation as a "holding company", an
"affiliate"
of a
"holding company", or a "subsidiary company" of a "holding
company",
within the meaning of the Public Utility Holding Company Act of
1935, as
amended.
(ix) Status of Origination Trust. The Origination Trust is not
an
"investment company" within the meaning of the Investment Company
Act of
1940, as amended. The Origination Trust is not subject to
regulation as a
"holding company", an "affiliate" of a "holding company", or a
"subsidiary
company" of a "holding company", within the meaning of the Public
Utility
Holding Company Act of 1935, as amended.
The
representations and warranties set forth in this Section 2.3(a)
shall
speak only as of the date hereof and shall survive the sale of the
Transaction
SUBI hereunder.
(b)
The Seller hereby represents and warrants to the Buyer with respect
to
each Unit being allocated to the Transaction SUBI on the Closing
Date that, as
of the Cut-Off Date or the Closing Date, as applicable, the
representations and
warranties set forth on Schedule I hereto were true and correct
with respect to
such Unit. The representation and warranties set forth on Schedule
I hereto
shall survive the allocation of such Unit hereunder.
(c)
Upon discovery by the Buyer or the Seller of a breach of any of
the
representations and warranties set forth in Section 2.3(b) at the
time such
representations and warranties were made which materially and
adversely affects
the interests of the Issuer in the related Unit, the party
discovering such
breach shall give prompt written notice thereof to the
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other parties. If the Seller does not correct or cure such breach
prior to the
end of the Collection Period after the date that the Seller was
notified of such
breach, then the Seller shall direct the SUBI Trustee and the
Servicer to
reallocate the noncompliant Units from the Transaction SUBI
Portfolio to the UTI
Portfolio on the Payment Date following the end of such Collection
Period. In
consideration for such reallocation, the Seller shall make a
payment to the
Buyer equal to the Securitization Value of such Unit as of the
beginning of the
Collection Period preceding such Payment Date by depositing such
amount into the
Collection Account prior to 11:00 a.m., New York City time, on such
Payment
Date. It is understood and agreed that the obligation of the Seller
to
reallocate any Unit as to which such a breach has occurred and is
continuing as
described above and to make the related reallocation payment shall
constitute
the sole remedy respecting such breach available to the Buyer.
(d)
Perfection Representations. The representations, warranties and
covenants set forth on Schedule II hereto shall be a part of this
Agreement for
all purposes. Notwithstanding any other provision of this Agreement
or any other
Transaction Document, the perfection representations contained in
Schedule II
shall be continuing, and remain in full force and effect until such
time as all
obligations under the Indenture have been finally and fully paid
and performed.
The parties to this Agreement: (i) shall not waive any of the
perfection
representations contained in Schedule II; (ii) shall provide the
Rating Agencies
with prompt written notice of any breach of perfection
representations contained
in this Schedule and (iii) shall not waive a breach of any of the
perfection
representations contained in Schedule II.
SECTION 2.4 Subordinated Note.
(a)
On the Closing Date, the Buyer will deliver to the Seller a
subordinated promissory note, payable to the order of the Seller
(as the same
may be amended, supplemented, endorsed or otherwise modified from
time to time,
together with any promissory note issued from time to time in
substitution
therefor or renewal thereof, being herein called the "Subordinated
Note").
(b)
The Seller shall make all appropriate record keeping entries
with
respect to the Subordinated Note to reflect the payments on and
adjustment of
the Subordinated Note. The Seller's books and records shall
constitute
rebuttable presumptive evidence of the principal amount of and
accrued interest
on the Subordinated Note at any time, and the Seller hereby
promises to mark the
Subordinated Note "CANCELED" and return it to the Buyer upon the
final payment
thereof.
SECTION 2.5 Protection of Title.
(a)
Filings. The Seller shall file such financing statements and cause
to
be filed such continuation and other statements, all in such manner
and in such
places as may be required by law fully to preserve, maintain and
protect the
interest of the Buyer under this Agreement in the Transaction SUBI.
The Seller
shall deliver (or cause to be delivered) to the Buyer file-stamped
copies of, or
filing receipts for, any document filed as provided above, as soon
as available
following such filing.
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(b)
Name Change. The Seller shall not change its name, identity or
corporate structure in any manner that would, could, or might make
any financing
statement or continuation statement filed by the Seller in
accordance with
Section 2.5(a) "seriously misleading" with
