Exhibit 10.1
EXECUTION COPY
dated as of November 16,
2005
VOLKSWAGEN PUBLIC AUTO LOAN
SECURITIZATION, LLC
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Page
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ARTICLE I DEFINITIONS AND USAGE
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1
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1
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SECTION 1.2 Other Interpretive
Provisions
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1
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2
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SECTION 2.1 Agreement to Sell and Contribute on
the Closing Date
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2
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SECTION 2.2 Consideration and Payment
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2
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ARTICLE III REPRESENTATIONS, WARRANTIES AND
COVENANTS
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2
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SECTION 3.1 Representations and Warranties of
VCI
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2
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SECTION 3.2 Representations and Warranties of
VCI as to each Receivable
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3
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SECTION 3.3 Repurchase upon Breach
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3
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SECTION 3.4 Protection of Title
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SECTION 3.5 Other Liens or Interests
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5
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SECTION 3.6 Perfection Representations,
Warranties and Covenants
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5
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5
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SECTION 4.1 Transfers Intended as Sale; Security
Interest
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6
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SECTION 4.3 Choice of Law
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7
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7
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7
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7
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8
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SECTION 4.8 Entire Agreement
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8
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SECTION 4.9 Severability of
Provisions
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8
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SECTION 4.10 Binding Effect
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8
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SECTION 4.11 Acknowledgment and
Agreement
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8
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SECTION 4.12 Cumulative Remedies
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9
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SECTION 4.13 Nonpetition Covenant
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9
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SECTION 4.14 Submission to
Jurisdiction
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9
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Form of
Assignment Pursuant to Purchase Agreement
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Representations
and Warranties With Respect to the Receivables
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Perfection
Representations, Warranties and Covenants
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THIS PURCHASE
AGREEMENT is made and entered into as of November 16, 2005 (as
amended from time to time, this “ Agreement ”)
by VW CREDIT, INC., a Delaware corporation (“ VCI
”), and VOLKSWAGEN PUBLIC AUTO LOAN SECURITIZATION, LLC, a
Delaware limited liability company (the “ Purchaser
”).
WHEREAS, the
Purchaser desires to purchase from VCI a portfolio of motor vehicle
receivables, including retail motor vehicle installment sales
contracts and/or installment loans that are secured by new and used
automobiles and light-duty trucks; and
WHEREAS, VCI is
willing to sell such portfolio of motor vehicle receivables and
related property to the Purchaser on the terms and conditions set
forth in this Agreement.
NOW, THEREFORE, in
consideration of the premises and the mutual agreements set forth
herein, the parties hereto agree as follows:
SECTION 1.1
Definitions . Except as otherwise defined herein or as the
context may otherwise require, capitalized terms used but not
otherwise defined herein are defined in Appendix A to
the Sale and Servicing Agreement dated as of the date hereof (as
from time to time amended, supplemented or otherwise modified and
in effect, the “ Sale and Servicing Agreement ”)
among Volkswagen Auto Loan Enhanced Trust 2005-1, VCI, as servicer,
the Purchaser, as seller, and Citibank, N.A., as indenture trustee,
which also contains rules as to usage that are applicable
herein.
SECTION 1.2
Other Interpretive Provisions . For purposes of this
Agreement, unless the context otherwise requires:
(a) accounting terms not otherwise defined in this Agreement,
and accounting terms partly defined in this Agreement to the extent
not defined, shall have the respective meanings given to them under
GAAP; (b) terms defined in Article 9 of the UCC as in
effect in the relevant jurisdiction and not otherwise defined in
this Agreement are used as defined in that Article; (c) the
words “hereof,” “herein” and
“hereunder” and words of similar import refer to this
Agreement as a whole and not to any particular provision of this
Agreement; (d) references to any Article, Section, Schedule,
Appendix or Exhibit are references to Articles, Sections,
Schedules, Appendices and Exhibits in or to this Agreement and
references to any paragraph, subsection, clause or other
subdivision within any Section or definition refer to such
paragraph, subsection, clause or other subdivision of such Section
or definition; (e) the term “including” means
“including without limitation”; (f) except as
otherwise expressly provided herein, references to any law or
regulation refer to that law or regulation as amended from time to
time and include any successor law or regulation;
(g) references to any Person include that Person’s
successors and assigns; and (h) headings are for purposes of
reference only and shall not otherwise affect the meaning or
interpretation of any provision hereof.
SECTION 2.1
Agreement to Sell and Contribute on the Closing Date . On
the terms and subject to the conditions set forth in this
Agreement, VCI agrees to transfer, assign, set over, sell and
otherwise convey to the Purchaser without recourse (subject to the
obligations herein) on the Closing Date all of its right, title and
interest in, to and under the Receivables, the Collections after
the Cut-Off Date and the Related Security relating thereto,
described in an Assignment in the form of Exhibit A
delivered on the Closing Date (the “ Purchased Assets
”) having a Net Pool Balance as of the Cut-Off Date equal to
$1,364,964,811.90, which sale shall be effective as of the Cut-Off
Date. The sale, transfer, assignment and conveyance made hereunder
does not constitute and is not intended to result in an assumption
by the Purchaser of any obligation of the applicable Originator to
the Obligors, the Dealers or any other Person in connection with
the Receivables or the other assets and properties conveyed
hereunder or any agreement, document or instrument related
thereto.
SECTION 2.2
Consideration and Payment . In consideration of the transfer
of the Purchased Assets conveyed to the Purchaser on the Closing
Date, the Purchaser shall pay in cash to VCI on such date an amount
equal to $1,225,962,647.39, and VCI elects to contribute to the
Purchaser such Purchased Assets as had an Outstanding Principal
Balance equal to $139,002,164.51.
REPRESENTATIONS, WARRANTIES AND
COVENANTS
SECTION 3.1
Representations and Warranties of VCI . VCI makes the
following representations and warranties as of the Closing Date on
which the Purchaser will be deemed to have relied in acquiring the
Purchased Assets. The representations and warranties will survive
the conveyance of the Purchased Assets to the Purchaser, the
conveyance of the Purchased Assets to the Issuer pursuant to the
Sale and Servicing Agreement and the Grant thereof by the Issuer to
the Indenture Trustee pursuant to the Indenture:
(a)
Existence and Power . VCI is a corporation validly existing
and in good standing under the laws of its state of organization
and has, in all material respects, all power and authority required
to carry on its business as now conducted. VCI has obtained all
necessary licenses and approvals in each jurisdiction where the
failure to do so would materially and adversely affect the ability
of VCI to perform its obligations under the Transaction Documents
or the enforceability or collectibility of the Receivables or any
other part of the Purchased Assets.
(b)
Authorization and No Contravention . The execution, delivery
and performance by VCI of each Transaction Document to which it is
a party (i) have been duly authorized by all necessary action
on the part of VCI and (ii) do not contravene or constitute a
default under (A) any applicable law, rule or regulation,
(B) its organizational documents or (C) any material
agreement, contract, order or other instrument to which it is a
party or its property is subject (other than violations of which do
not affect the legality, validity or enforceability of any of
such
agreements and
which, individually or in the aggregate, would not materially and
adversely affect the transactions contemplated by, or VCI’s
ability to perform its obligations under, the Transaction
Documents).
(c) No
Consent Required . No approval or authorization by, or filing
with, any Governmental Authority is required in connection with the
execution, delivery and performance by VCI of any Transaction
Document other than (i) UCC filings, (ii) approvals and
authorizations that have previously been obtained and filings that
have previously been made and (iii) approvals, authorizations
or filings which, if not obtained or made, would not have a
material adverse effect on the enforceability or collectibility of
the Receivables or any other part of the Purchased Assets or would
not materially and adversely affect the ability of VCI to perform
its obligations under the Transaction Documents.
(d)
Binding Effect . Each Transaction Document to which VCI is a
party constitutes the legal, valid and binding obligation of VCI
enforceable against VCI in accordance with its terms, except as
such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium, receivership,
conservatorship or other similar laws affecting creditors’
rights generally and, if applicable, the rights of creditors of
corporations from time to time in effect or by general principles
of equity.
(e) No
Proceedings . There are no actions, suits or proceedings
pending or, to the knowledge of VCI, threatened against VCI before
or by any Governmental Authority that (i) assert the
invalidity or unenforceability of this Agreement or any of the
other Transaction Documents, (ii) seeking to prevent the
issuance of the Notes or the consummation of any of the
transactions contemplated by this Agreement or any of the other
Transaction Documents, (iii) seeking any determination or
ruling that would materially and adversely affect the performance
by VCI of its obligations under this Agreement or any of the other
Transaction Documents, or (iv) relate to VCI that would
materially and adversely affect the federal or Applicable Tax State
income, excise, franchise or similar tax attributes of the
Notes.
(f) Lien
Filings . VCI is not aware of any material judgment, ERISA or
tax lien filings against VCI.
SECTION 3.2
Representations and Warranties of VCI as to each Receivable
. VCI hereby makes the representations and warranties set forth on
Schedule I as to the Receivables, sold, transferred,
assigned, set over, sold and otherwise conveyed to the Purchaser on
which such representations and warranties the Purchaser relies in
acquiring the Receivables. Such representations and warranties
shall survive the sale of the Receivables to the Issuer under the
Sale and Servicing Agreement, and the Grant of the Receivables by
the Issuer to the Indenture Trustee pursuant to the Indenture.
Notwithstanding any statement to the contrary contained herein or
in any other Transaction Document, VCI shall not be required to
notify any insurer with respect to any Insurance Policy obtained by
an Obligor or to notify any Dealer about any aspect of the
transaction contemplated by the Transaction Documents.
SECTION 3.3
Repurchase upon Breach . Upon discovery by or notice to the
Purchaser or VCI of a breach of any of the representations and
warranties set forth in Section 3.2 at the time such
representations and warranties were made which materially and
adversely
affects the
interests of the Issuer or the Noteholders, the party discovering
such breach or receiving such notice shall give prompt written
notice thereof to the other party; provided that delivery of
the Servicer’s Certificate shall be deemed to constitute
prompt notice by the Servicer and the Issuer of such breach;
provided , further , that the failure to give
such notice shall not affect any obligation of VCI hereunder. If
VCI does not correct or cure such breach prior to the end of the
Collection Period which includes the 60th day (or, if VCI elects,
an earlier date) after the date that VCI became aware or was
notified of such breach, then VCI shall purchase any Receivable
materially and adversely affected by such breach from the Purchaser
on the Payment Date following the end of such Collection Period.
Any such breach or failure will not be deemed to have a material
and adverse effect if such breach or failure does not affect the
ability of the Purchaser (or its assignee) to receive and retain
timely payment in full on such Receivable. Any such purchase by VCI
shall be at a price equal to the Repurchase Price. In consideration
for such repurchase, VCI shall make (or shall cause to be made) a
payment to the Purchaser equal to the Repurchase Price by
depositing such amount into the Collection Account prior to 11:00
am, New York City time on such Payment Date. Upon payment of such
Repurchase Price by VCI, the Purchaser shall release and shall
execute and deliver such instruments of release, transfer or
assignment, in each case without recourse or representation, as may
be reasonably requested by VCI to evidence such release, transfer
or assignment or more effectively vest in VCI or its designee any
Receivable repurchased pursuant hereto. It is understood and agreed
that the obligation of VCI to purchase any Receivable as described
above shall constitute the sole remedy respecting such breach
available to the Purchaser.
SECTION 3.4
Protection of Title .
(a) VCI shall
authorize and file such financing statements and cause to be
authorized 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 Purchaser under
this Agreement in the Receivables. VCI shall deliver (or cause to
be delivered) to the Purchaser file-stamped copies of, or filing
receipts for, any document filed as provided above, as soon as
available following such filing.
(b) VCI shall
not change its name, identity, corporate structure or jurisdiction
of organization in any manner that would make any financing
statement or continuation statement filed by VCI in accordance with
paragraph (a) above “seriously misleading”
within the meaning of Sections 9-506, 9-507 or 9-508 of the
UCC, unless it shall have given the Purchaser at least five
days’ prior written notice thereof and, to the extent
necessary, shall have promptly filed amendments to previously filed
financing statements or continuation statements described in
paragraph (a) above.
(c) VCI shall
give the Purchaser at least ten days’ prior written notice of
any change of location of VCI 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 Purchaser to amend all previously filed financing statements
or continuation statements described in paragraph (a)
above.
(d) VCI shall
maintain (or shall cause its Sub-Servicer to maintain) accounts and
records as to each Receivable accurately and in sufficient detail
to permit (i) the reader thereof to know at any time the
status of such Receivable, including payments and recoveries made
and payment owing (and the nature of each) and
(ii) reconciliation between payments or recoveries on (or with
respect to) each Receivable and the amounts from time to time
deposited in the Collection Account in respect of such
Receivable.
(e) VCI shall
maintain (or shall cause its Sub-Servicer to maintain) its computer
systems so that, from time to time after the conveyance under this
Agreement of the Receivables, the master computer records
(including any backup archives) that refer to a Receivable shall
indicate clearly the interest of the Purchaser (or any subsequent
assignee of the Purchaser) in such Receivable and that such
Receivable is owned by such Person. Indication of such
Person’s interest in a Receivable shall not be deleted from
or modified on such computer systems until, and only until, the
related Receivable shall have been paid in full or
repurchased.
(f) If at any
time VCI shall propose to sell, grant a security interest in or
otherwise transfer any interest in motor vehicle receivables to any
prospective purchaser, lender or other transferee, VCI shall give
to such prospective purchaser, lender or other transferee computer
tapes, records or printouts (including any restored from backup
archives) that, if they shall refer in any manner whatsoever to any
Receivable, shall indicate clearly that such Receivable has been
sold and is owned by the Purchaser (or any subsequent assignee of
the Purchaser).
SECTION 3.5
Other Liens or Interests . Except for the conveyances and
grants of security interests pursuant to this Agreement and the
other Transaction Documents, VCI shall not sell, pledge, assign or
transfer the Receivables or other property transferred to the
Purchaser to any other Person, or grant, create, incur, assume or
suffer to exist any Lien (other than Permitted Liens) on any
interest therein, and VCI shall defend the right, title and
interest of the Purchaser in, to and under such Receivables or
other property transferred to the Purchaser against all claims of
third parties claiming through or under VCI.
SECTION 3.6
Perfection Representations, Warranties and Covenants . VCI
hereby makes the perfection representations, warranties and
covenants attached set forth on Schedule II hereto to the
Purchaser and the Purchaser shall be deemed to have relied on such
representations, warranties and covenants in acquiring the
Purchased Assets
SECTION 4.1
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 transfers rather than pledges or assignments of
only a security interest and shall be given effect as such for all
purposes. It is further the intention of the parties hereto that
the Receivables and related Purchased Assets shall not be part of
VCI’s estate in the event of a bankruptcy or insolvency of
VCI. The sales and transfers by VCI of the Receivables and related
Purchased Assets hereunder
are and shall
be without recourse to, or representation or warranty (express or
implied) by, VCI, except as otherwise specifically provided herein.
The limited rights of recourse specified herein against VCI 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 the Receivables.
(b) Notwithstanding
the foregoing, in the event that the Receivables and other
Purchased Assets are held to be property of VCI, or if for any
reason this Agreement is held or deemed to create indebtedness or a
security interest in the Receivables and other Purchased Assets,
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
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