EXHIBIT 10.3
AMENDED AND RESTATED
TRUST SALE AND SERVICING AGREEMENT
AMONG
VW CREDIT, INC.
SERVICER
VOLKSWAGEN DEALER FINANCE, LLC
TRANSFEROR
AND
VOLKSWAGEN CREDIT AUTO MASTER OWNER TRUST
TRUST
DATED AS OF , 200 _
TABLE OF CONTENTS
(continued)
PAGE
ARTICLE I DEFINITIONS.................................................................................... 3
SECTION 1.1 Definitions...................................................................... 3
ARTICLE II CONVEYANCE OF RECEIVABLES...................................................................... 3
SECTION 2.1 Conveyance of Receivables........................................................ 3
SECTION 2.2 Acceptance by the Owner Trustee.................................................. 5
SECTION 2.3 Representations and Warranties of the Transferor Relating to the
Transferor and the Agreement..................................................... 5
SECTION 2.4 Representations and Warranties of the Transferor Relating to the
Receivables...................................................................... 7
SECTION 2.5 Addition of Accounts............................................................. 9
SECTION 2.6 Covenants of the Transferor...................................................... 11
SECTION 2.7 Removal of Accounts Without Removal of Receivables............................... 12
SECTION 2.8 Removal of Receivables With Accounts............................................. 13
SECTION 2.9 Transfer of Ineligible Receivables............................................... 14
ARTICLE III ADMINISTRATION AND SERVICING OF RECEIVABLES.................................................... 15
SECTION 3.1 Acceptance of Appointment and Other Matters Relating to the Servicer............. 15
SECTION 3.2 Servicing Compensation........................................................... 16
SECTION 3.3 Representations, Warranties and Covenants of the Servicer........................ 17
SECTION 3.4 Reports and Records.............................................................. 19
SECTION 3.5 Annual Servicer's Certificate.................................................... 20
SECTION 3.6 Annual Independent Public Accountants' Servicing Report.......................... 21
SECTION 3.7 Tax Treatment.................................................................... 21
SECTION 3.8 Notices to VCI................................................................... 21
SECTION 3.9 Adjustments...................................................................... 21
ARTICLE IV ALLOCATION AND APPLICATION OF COLLECTIONS...................................................... 22
SECTION 4.1 Establishment of Accounts........................................................ 22
SECTION 4.2 Allocations and Applications of Collections and Other Funds...................... 23
SECTION 4.3 Excess Principal Collections..................................................... 24
SECTION 4.4 Excess Funding Account........................................................... 25
SECTION 4.5 Net Deposits..................................................................... 25
ARTICLE V DISTRIBUTIONS AND REPORTS TO NOTEHOLDERS AND................................................... 26
ARTICLE VI OTHER MATTERS RELATING TO THE SERVICER......................................................... 26
SECTION 6.1 Liability of the Servicer........................................................ 26
SECTION 6.2 Merger or Consolidation of, or Assumption of, the Obligations of the
Servicer......................................................................... 26
SECTION 6.3 Limitation on Liability of the Servicer and Others............................... 26
SECTION 6.4 Servicer Indemnification of the Trust, the Indenture Trustee and the
Owner Trustee.................................................................... 27
SECTION 6.5 The Servicer Not to Resign....................................................... 28
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TABLE OF CONTENTS
(continued)
PAGE
SECTION 6.6 Access to the Documentation and Information Regarding the Receivables............ 28
SECTION 6.7 Delegation of Duties............................................................. 29
SECTION 6.8 Examination of Records........................................................... 29
ARTICLE VII SERVICING DEFAULTS............................................................................. 29
SECTION 7.1 Servicing Defaults............................................................... 29
SECTION 7.2 Indenture Trustee to Act; Appointment of Successor............................... 31
SECTION 7.3 Notification to Noteholders and Residual Interestholder.......................... 32
SECTION 7.4 Waiver of Past Defaults.......................................................... 32
ARTICLE VIII MISCELLANEOUS PROVISIONS....................................................................... 33
SECTION 8.1 Amendment........................................................................ 33
SECTION 8.2 No Petition Covenant............................................................. 34
SECTION 8.3 Choice of Law.................................................................... 34
SECTION 8.4 Notices.......................................................................... 34
SECTION 8.5 Severability of Provisions....................................................... 34
SECTION 8.6 Assignment....................................................................... 34
SECTION 8.7 Further Assurances............................................................... 34
SECTION 8.8 No Waiver; Cumulative Remedies................................................... 35
SECTION 8.9 Counterparts..................................................................... 35
SECTION 8.10 Third-Party Beneficiaries........................................................ 35
SECTION 8.11 Action by Owner Trustee.......................................................... 35
SECTION 8.12 Merger and Integration........................................................... 35
SECTION 8.13 Headings......................................................................... 35
SECTION 8.14 No Recourse...................................................................... 35
SECTION 8.15 Submission to Jurisdiction....................................................... 35
EXHIBITS
Exhibit A Form of Assignment of Receivables in Additional Accounts
Exhibit B Form of Annual Servicer's Certificate
Exhibit C Form of Reassignment of Receivables in Removed Accounts
APPENDICES
APPENDIX A Definitions and Rules of Construction
APPENDIX B Notice Addresses and Procedures
SCHEDULES
SCHEDULE 1 List of Accounts
SCHEDULE 2 Proceedings
SCHEDULE 3 List of Trust Accounts
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AMENDED AND RESTATED TRUST SALE AND SERVICING AGREEMENT dated as of ,
200 _ , by and among VW CREDIT, INC., a Delaware corporation (the "Servicer"),
VOLKSWAGEN DEALER FINANCE, LLC, a Delaware limited liability company (the
"Transferor"), and VOLKSWAGEN CREDIT AUTO MASTER OWNER TRUST, a Delaware
statutory trust (formerly known as VOLKSWAGEN CREDIT AUTO MASTER OWNER TRUST, a
New York common law trust) (the "Trust").
WHEREAS, the Servicer, the Transferor and the Trust are parties to that Trust
Sale and Servicing Agreement dated as of August 10, 2000 (the "Existing TSSA"),
and whereas the parties to the Existing TSSA desire to amend the Existing TSSA,
and to restate it in its entirety.
In consideration of the mutual agreements herein contained, the Existing TSSA is
hereby amended and restated in its entirety as follows and each party agrees as
follows for the benefit of the other parties and for the benefit of the Residual
Interestholder and the Beneficiaries to the extent provided herein:
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions. Certain capitalized terms in this Agreement are
defined in and shall have the respective meanings assigned to them in Part I of
Appendix A to this Agreement. All references herein to "the Agreement" or "this
Agreement" are to this Trust Sale and Servicing Agreement as it may be amended,
supplemented or modified from time to time, the exhibits hereto and the
capitalized terms used herein which are defined in Appendix A, and all
references herein to Articles, Sections and subsections are to Articles,
Sections or subsections of this Agreement unless otherwise specified. The rules
of construction set forth in Part II of Appendix A shall be applicable to this
Agreement.
ARTICLE II
CONVEYANCE OF RECEIVABLES
SECTION 2.1 Conveyance of Receivables. In consideration of the Issuer's
delivery to the Transferor of the Residual Interest, the Transferor does hereby
sell, transfer, assign, set over and otherwise convey, without recourse (except
as expressly provided herein), to the Trust for the benefit of the Residual
Interestholder and the other Beneficiaries on the Initial Closing Date, in the
case of the Initial Accounts, and on the applicable Addition Date, in the case
of Additional Accounts, (a) all of its right, title and interest in, to and
under the Receivables in each Account and all Collateral Security with respect
thereto owned by the Transferor at the close of business on the Initial Cut-Off
Date, in the case of the Initial Accounts, and on the applicable Additional
Cut-Off Date, in the case of Additional Accounts, and all monies due or to
become due thereon (including all interest accruing thereon after the Initial
Cut-Off Date, whether paid or payable) and all amounts received with respect
thereto and all proceeds of all of the foregoing (including "proceeds" as
defined in Section 9-102 of the UCC), and Recoveries thereof and (b) all of the
Transferor's rights, remedies, powers and privileges with respect to such
Receivables (and otherwise) under the Receivables Purchase Agreement. As of each
Business Day, prior to the
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earlier of (i) the occurrence of an Early Amortization Event specified in
Section 5.17(a), (b), (c), (d), (e) or (f) of the Indenture or the Series
Supplement and (ii) the Trust Termination Date, on which Receivables are created
in the Accounts (a "Transfer Date"), the Transferor does hereby sell, transfer,
assign, set over and otherwise convey, without recourse (except as expressly
provided herein), to the Trust for the benefit of the Residual Interestholder
and the Beneficiaries, all of its right, title and interest in, to and under the
Receivables in each Account (other than any Receivables created in any
Designated Accounts from and after the applicable Removal Date) and all
Collateral Security with respect thereto owned by the Transferor at the close of
business on such Transfer Date and not theretofore conveyed to the Trust, all
monies due or to become due and all amounts received with respect thereto and
all proceeds (including "proceeds" as defined in Section 9-102 of the UCC) of
all of the foregoing (all such assets conveyed pursuant to this Agreement, the
"Conveyed Receivables"). Such property, together with all monies on deposit in,
and Eligible Investments credited to, the Collection Account or any Series
Account, any Enhancements and the Collateral Security with respect to the
Receivables shall collectively constitute the assets of the Trust (the "Trust
Assets"). The foregoing sale, transfer, assignment, set-over and conveyance and
any subsequent sales, transfers, assignments, set-overs and conveyances do not
constitute, and are not intended to result in, the creation or an assumption by
the Trust, the Owner Trustee, the Indenture Trustee, any Agent or any
Beneficiary of any obligation of the Servicer, the Transferor, VCI or any other
Person in connection with the Accounts, the Receivables or under any agreement
or instrument relating thereto, including any obligation to any Dealers.
It is the express intent of the parties hereto that the conveyance of the
Conveyed Receivables by Transferor be, and be construed as, sales of such
Conveyed Receivables by Transferor to the Trust, and not a pledge by Transferor
to the Trust to secure a debt or other obligations of Transferor. However, in
the event that, notwithstanding the aforementioned intent of the parties, any
such Conveyed Receivables are held to be the property of Transferor, then it is
the express intent of the parties to this Agreement that this Agreement
constitutes a "security agreement" under the UCC and applicable law, and
Transferor hereby grants to the Trust a first priority, continuing lien and
security interest in all right, title and interest of Transferor in, to and
under the Conveyed Receivables sold pursuant to this Agreement, and all proceeds
in respect thereof. Transferor shall take such actions, as may be necessary to
ensure that if this Agreement were deemed to create a security interest, such
security interest would be a perfected security interest of first priority under
applicable law and will be maintained as such for the term of this Agreement.
In connection with such sales, the Transferor agrees to record and file,
at its own expense, a financing statement on form UCC-1 or any other applicable
form (and continuation statements when applicable) with respect to the
Receivables now existing and hereafter created for the sale of chattel paper,
accounts, payment intangibles and general intangibles (as defined in Sections
9-102 of the UCC as in effect in the applicable jurisdiction where either the
Transferor or VCI is "located" for purposes of Section 9-307 of the UCC),
meeting the requirements of applicable law in such manner and in such
jurisdictions as are necessary to perfect the sale and assignment of the
Receivables and the Collateral Security to the Trust, and to deliver a
file-stamped copy of such financing statements or other evidence of such filing
to the Owner Trustee on or prior to the Initial Closing Date, in the case of the
Initial Accounts, and (if any additional filing is so necessary) the applicable
Addition Date, in the case of Additional Accounts. The Owner Trustee
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shall be under no obligation whatsoever to file such financing statement, or a
continuation statement to such financing statement, or to make any other filing
under the UCC in connection with such sales.
In connection with such sales, the Transferor further agrees, at its own
expense, on or prior to the Initial Closing Date, in the case of the Initial
Accounts, the applicable Addition Date, in the case of Additional Accounts, and
the applicable Removal Date, in the case of Removed Accounts, (a) to cause the
Servicer to indicate in its computer files as required by the Receivables
Purchase Agreement, that the Receivables created in connection with the Accounts
(other than Removed Accounts) have been sold, and the Collateral Security
assigned, to the Transferor in accordance with the Receivables Purchase
Agreement and sold to the Trust pursuant to this Agreement for the benefit of
the Residual Interestholder and the Beneficiaries and (b) to deliver to the
Owner Trustee and the Indenture Trustee (or cause VCI to do so) a computer file
or microfiche or written list (which may be in electronic form) containing a
true and complete list of all such Accounts (other than Removed Accounts)
specifying for each such Account, as of the Initial Cut-Off Date, in the case of
the Initial Accounts, and the applicable Additional Cut-Off Date, in the case of
Additional Accounts, (i) its account number and (ii) the aggregate amount of
Principal Receivables in such Account. Such file or list, as supplemented from
time to time to reflect Additional Accounts and Removed Accounts, shall be
marked as Schedule 1 to this Agreement and is hereby incorporated into and made
a part of this Agreement. Neither the Owner Trustee nor the Indenture Trustee
shall be under any obligation whatsoever to verify the accuracy or completeness
of the information contained in Schedule 1 from time to time. By their execution
hereof, the Owner Trustee and the Indenture Trustee acknowledge receipt of the
initial computer file or microfiche or written list (which may be in electronic
form) with respect to the Initial Accounts.
By executing this Agreement, the parties hereto do not intend to cancel,
release or in any way impair the conveyances previously made under the Existing
TSSA.
SECTION 2.2 Acceptance by the Owner Trustee. The Owner Trustee hereby
acknowledges its acceptance, on behalf of the Trust, of all right, title and
interest previously held by the Transferor to the property, now existing and
hereafter created, conveyed to the Trust pursuant to Section 2.1 and declares
that it shall maintain such right, title and interest, upon the trust herein set
forth, for the benefit of the Residual Interestholder and the Beneficiaries. The
Owner Trustee further acknowledges that, prior to or simultaneously with the
execution and delivery of this Agreement, the Transferor delivered to the Owner
Trustee (i) all documents evidencing the Receivables which constitute
"instruments" (as defined in the UCC) and (ii) the computer file or microfiche
or written list (which may be in electronic form) relating to the Initial
Accounts described in the last paragraph of Section 2.1.
The Owner Trustee shall have no power to create, assume or incur
indebtedness or other liabilities in the name of the Trust other than as
contemplated in the Basic Documents.
SECTION 2.3 Representations and Warranties of the Transferor Relating to
the Transferor and the Agreement. The Transferor hereby represents and warrants
to the Trust, the Indenture Trustee and to the Owner Trustee as of each Closing
Date and each Addition Date that:
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(a) Existence and Power. The Transferor is a limited liability company
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 Transferor 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 Transferor taken as a whole.
(b) Company Authorization and No Contravention. The execution, delivery
and performance by the Transferor of each Basic 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.
(c) Litigation. There are no actions, suits or proceedings pending or, to
the knowledge of the Transferor, threatened against the Transferor before or by
any Governmental Authority that (i) question the validity or enforceability of
this Agreement or adversely affect the ability of the Transferor to perform its
obligations hereunder or (ii) individually or in the aggregate would have a
material adverse effect. The Transferor 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.
(d) 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 Transferor of any Basic Document
other than UCC filings and other than approvals and authorizations that have
previously been obtained and filings which have previously been made.
(e) Binding Effect. Each Basic Document to which the Transferor is a party
constitutes the legal, valid and binding obligation of the Transferor
enforceable against the Transferor 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.
(f) Record of Accounts. As of the Initial Closing Date, in the case of the
Initial Accounts, as of the applicable Addition Date, in the case of the
Additional Accounts, and, as of the applicable Removal Date, in the case of
Removed Accounts, Schedule 1 to this Agreement is an accurate and complete
listing in all material respects of all the Accounts as of the Initial Cut-Off
Date, the applicable Additional Cut-Off Date or the applicable Removal Date, as
the case may be, and the information contained therein with respect to the
identity of such Accounts and the Receivables existing thereunder is true and
correct in all material respects as of the Initial Cut-Off Date, such applicable
Additional Cut-Off Date or such Removal Date, as the case may be.
(g) Valid Transfer. This Agreement or, in the case of Additional Accounts,
the related Assignment constitutes a valid sale, transfer and assignment to the
Trust of all right, title and interest of the Transferor in the related
Receivables and the Collateral Security and the
6
proceeds thereof and all of the Transferor's rights, remedies, powers and
privileges with respect to the Receivables under the Receivables Purchase
Agreement and, upon the filing of the financing statements described in Section
2.1 with the Secretary of State in the applicable jurisdiction where either the
Transferor or VCI is "located" for purposes of Section 9-301 of the UCC and, in
the case of the Additional Receivables hereafter created and the proceeds
thereof, upon the creation thereof, the Trust shall have a first priority
perfected ownership interest in such property, except for Liens permitted under
Section 2.6(a). Except as otherwise provided in this Agreement, or the other
Basic Documents, neither the Transferor nor any Person claiming through or under
the Transferor has any claim to or interest in the Trust Assets.
(h) Perfection Representations. The representations, warranties and
covenants set forth on Appendix C hereto shall be a part of this Agreement for
all purposes. Notwithstanding any other provision of this Agreement or any other
Basic Document, the perfection representations contained in Appendix C 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 Appendix C; (ii) shall provide the Rating Agencies
with prompt written notice of any breach of perfection representations contained
in Appendix C and (iii) shall not waive a breach of any of the perfection
representations contained in Appendix C.
The representations and warranties set forth in this Section 2.3 shall
survive the transfer and assignment of the Receivables to the Trust. Upon
discovery by the Transferor, the Owner Trustee, the Indenture Trustee, the
Servicer, or any Agent of a breach of any of the foregoing representations and
warranties, the party discovering such breach shall give prompt written notice
to the other parties, any Agent and to any Enhancement Providers.
In the event the Noteholders shall have exercised their right to have the
Notes redeemed pursuant to Section 10.1(b) of the Indenture as a result of any
breach of any of the representations and warranties set forth in this Section
2.3, the Transferor shall deposit into the Note Distribution Account in
immediately available funds on the Business Day preceding the Redemption Date,
an amount equal to the sum of the amounts specified therefor with respect to
each outstanding Series in the related Series Supplement. The obligation of the
Transferor to make the deposit specified in this Section 2.3 will constitute the
sole remedy to the Trust, the Noteholders (the Indenture Trustee on behalf of
the Noteholders) or any other Person as a result of the breach of the
representations and warranties set forth in this Section 2.3.
SECTION 2.4 Representations and Warranties of the Transferor Relating to
the Receivables.
(a) Representations and Warranties. As of each Closing Date and each
Addition Date, the Transferor represents and warrants to the Trust that:
(i) Each Receivable and all Collateral Security existing on the
Initial Closing Date or, in the case of Additional Accounts, on the
applicable Addition Date, and on each Transfer Date, and the Transferor's
right title and interest in the Receivables Purchase Agreement, has been
conveyed to the Trust free and clear of any Lien (other than the Lien held
by VCI subject to Article VII of the Receivables Purchase Agreement).
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(ii) With respect to each Receivable and all Collateral Security
existing on the Initial Closing Date or, in the case of Additional
Accounts, on the applicable Addition Date, and on each Transfer Date, all
consents, licenses, approvals or authorizations of or registrations or
declarations with any Governmental Authority required to be obtained,
effected or given by the Transferor in connection with the conveyance of
such Receivable or Collateral Security to the Trust have been duly
obtained, effected or given and are in full force and effect.
(iii) On the Initial Cut-Off Date and each Closing Date , each
Initial Account is an Eligible Account and, in the case of Additional
Accounts, on the applicable Additional Cut-Off Date and each subsequent
Closing Date , each such Additional Account is an Eligible Account.
(iv) On the Initial Closing Date, in the case of the Initial
Accounts, and, in the case of the Additional Accounts, on the applicable
Additional Cut-Off Date, and on each Transfer Date, each Receivable
conveyed to the Trust on such date is an Eligible Receivable or, if such
Receivable is not an Eligible Receivable, such Receivable is conveyed to
the Trust in accordance with Section 2.9.
(v) In the selection of Accounts, no selection procedures reasonably
believed by the Transferor to be adverse to the interests of the
Beneficiaries shall have been used in selecting such Accounts
(b) Notice of Breach. The representations and warranties set forth in
Section 2.4(a) shall survive the transfer and assignment of the Receivables to
the Trust and the pledge to the Indenture Trustee under the Indenture. Upon
discovery by the Transferor, the Owner Trustee, the Indenture Trustee, the
Servicer, or any Agent, of a breach of any of the representations and warranties
set forth in Section 2.4(a) the party discovering such breach shall give prompt
written notice to the other parties and to any Enhancement Providers.
(c) Reassignment. In the event any representation or warranty under
Section 2.4(a) is not true and correct as of the date specified therein with
respect to any Receivable or Account and such breach has a material adverse
effect on the Noteholders, then, within 30 days (or such longer period as may be
agreed to in writing by the Indenture Trustee) of the earlier to occur of the
discovery of any such event by the Transferor or the Servicer, or receipt by the
Transferor or the Servicer of written notice of any such event given by the
Owner Trustee, the Indenture Trustee, any Agent or any Enhancement Providers,
the Transferor shall accept a reassignment of such Receivable or, in the case of
such an untrue representation or warranty with respect to an Account, all
Receivables in such Account, on the Determination Date immediately succeeding
the day of such discovery or notice on the terms and conditions set forth in the
next succeeding paragraph; provided, however, that no such reassignment shall be
required to be made with respect to such Receivable if, by the end of such
30-day period (or such longer period as may be agreed to in writing by the
Indenture Trustee), the breached representation or warranty shall then be true
and correct in all material respects and any material adverse effect caused
thereby shall have been cured.
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The Transferor shall accept a reassignment of each such Receivable by
directing the Servicer to deduct, subject to the next sentence, the principal
amount of such Receivables from the Pool Balance on or prior to the end of the
Collection Period in which such reassignment obligation arises. If, following
such deduction, the Residual Participation Amount would be less than the Trust
Available Subordination Amount on the immediately preceding Determination Date
(after giving effect to the allocations, distributions, withdrawals and deposits
to be made on the Payment Date following such Determination Date), then not
later than 12:00 noon on the day on which such reassignment occurs, the
Transferor shall deposit in the Collection Account in immediately available
funds the amount (the "Transfer Deposit Amount") by which Residual Participation
Amount would be less than such Trust Available Subordination Amount; provided
that if the Transfer Deposit Amount is not deposited as required by this
sentence, then the principal amounts of the related Receivables shall only be
deducted from the Pool Balance to the extent that the Residual Participation
Amount is not reduced below the Trust Available Subordination Amount and the
Receivables the principal amounts of which have not been so deducted shall not
be reassigned to the Transferor and shall remain part of the Trust. Upon
reassignment of any such Receivable, but only after payment by the Transferor of
the Transfer Deposit Amount, if any, the Trust shall automatically and without
further action be deemed to sell, transfer, assign, set over and otherwise
convey to the Transferor, without recourse, representation or warranty, all the
right, title and interest of the Trust in and to such Receivable, all Collateral
Security and all moneys due or to become due with respect thereto and all
proceeds thereof. The Owner Trustee shall execute such documents and instruments
of transfer or assignment and take such other actions as shall reasonably be
requested by the Transferor to effect the conveyance of such Receivables
pursuant to this Section 2.4. The obligation of the Transferor to accept a
reassignment of any such Receivable and to pay any related Transfer Deposit
Amount shall constitute the sole remedy respecting the event giving rise to such
obligation available to the Trust, the Noteholders (or the Indenture Trustee on
behalf of Noteholders) or any other Person.
SECTION 2.5 Addition of Accounts. Subject to the condition set forth in
this Section 2.5, the Transferor may designate additional accounts to be
included as Accounts (the "Additional Accounts").
(a) Required Addition of Accounts. If, as of the close of business on the
last day of any Collection Period, the Pool Balance on such day is less than the
Required Participation Amount as of the following Payment Date (after giving
effect to the allocations, distributions, withdrawals and deposits to be made on
such Payment Date), then the Transferor shall, within 10 Business Days following
the end of such Collection Period, designate and transfer to the Trust the
Receivables (and the Collateral Security) of Additional Accounts of the
Transferor to be included as Accounts designated to the Trust in a sufficient
amount such that after giving effect to such addition the Pool Balance as of the
close of business on the Addition Date is at least equal to such Required
Participation Amount. The failure of the Transferor to transfer Receivables to
the Trust as provided in this paragraph solely as a result of the unavailability
of a sufficient amount of Eligible Receivables shall not constitute a breach of
this Agreement; provided, however, that any such failure will nevertheless
result in the occurrence of an Early Amortization Event described in Section
5.17 of the Indenture. In connection with the designation of any account as an
Additional Account pursuant to this Section 2.5(a), each of the
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following conditions shall be satisfied with respect to such addition on or
prior to the related Addition Date:
(i) such Additional Accounts shall all be Eligible Accounts;
(ii) the Transferor shall have delivered to the Owner Trustee a duly
executed written assignment (including an acceptance by the Owner Trustee)
in substantially the form of Exhibit A (the "Assignment") and to the Owner
Trustee and the Indenture Trustee the computer file or microfiche or
written list (which may be in electronic form) required to be delivered
pursuant to Section 2.1;
(iii) the Transferor shall, to the extent required by Section 4.2,
have deposited in the Collection Account all Collections with respect to
such Additional Accounts since the Additional Cut-Off Date;
(iv) (A) no selection procedures reasonably believed by the
Transferor to be adverse to the interests of the Beneficiaries shall have
been used in selecting such Additional Accounts; (B) the list of
Additional Accounts delivered pursuant to clause (iii) shall be true and
correct in all material respects as of the Additional Cut-Off Date and (C)
as of each of the Notice Date and the Addition Date, neither VCI nor the
Transferor shall be insolvent nor will either of them be made insolvent by
such transfer nor shall any of them be aware of any pending insolvency;
(v) the addition of the Receivables arising in such Additional
Accounts shall not result in the occurrence of an Early Amortization
Event; and
(vi) the Transferor shall have delivered to the Owner Trustee, the
Indenture Trustee, the Rating Agencies, and any Enhancement Providers a
certificate confirming (A) the items set forth in paragraphs (ii) through
(vii) above and (B) that the Transferor reasonably believes that the
addition of the Receivables arising in such Additional Accounts will not
result in the occurrence of an Early Amortization Event.
Receivables and Collateral Security from such Additional Accounts shall be
sold to the Trust effective on a date (the "Addition Date") specified in a
written notice provided by the Transferor (or the Servicer on its behalf) to the
Owner Trustee, the Indenture Trustee, the Rating Agencies, any Agent and any
Enhancement Providers specifying the Additional Cut-Off Date and the Addition
Date for such Additional Accounts (the "Addition Notice") on or before the first
Business Day but not more than the 30th day prior to the related Addition Date
(the "Notice Date").
The Transferor hereby represents and warrants as of the applicable
Addition Date as to the matters set forth in clause (v) above. Upon discovery by
the Transferor, VCI, any Agent, the Owner Trustee, the Indenture Trustee or any
Enhancement Providers of a breach of the foregoing representations and
warranties, the party discovering the breach shall give prompt written notice to
the other parties, to any Agent and to any Enhancement Providers.
(b) Optional Addition of Accounts. The Transferor may from time to time,
at its sole discretion, voluntarily designate Additional Accounts to be included
as Accounts and transfer to
10
the Trust the Receivables (and the Collateral Security) of such Additional
Accounts. (Additional Accounts designated in accordance with the provisions
described in this Section 2.5(b) are referred to as "Automatic Additional
Accounts".) Unless each Rating Agency shall otherwise have consented in writing;
neither the number of Automatic Additional Accounts designated with respect to
any calendar quarter shall exceed % of the number of Accounts as of the
first day of the calendar quarter, nor shall the number of Automatic Additional
Accounts designated during any calendar year exceed % of the number of
Accounts as of the first day of such calendar year. In addition, in order to
voluntarily designate Automatic Additional Accounts to the Trust, the Transferor
shall have provided the Owner Trustee, the Indenture Trustee, any Agent, the
Rating Agencies and any Enhancement Providers with a timely Addition Notice. In
connection with the designation of any account as an Automatic Additional
Account pursuant to this Section 2.5(b), each of the conditions specified in
clauses (i), (ii), (iii), (iv) and (v) of Section 2.5(a) shall be satisfied with
respect to such addition on or prior to the related Addition Date. Within 30
days after the end of any calendar quarter, or such other period as shall be
required by the Rating Agencies, in which Accounts are designated as Automatic
Additional Accounts, the Transferor shall deliver to the Owner Trustee and the
Indenture Trustee and each Rating Agency an Opinion of Counsel with respect to
the Automatic Additional Accounts included as Accounts in such quarter, if
applicable, confirming the validity and perfection of the transfer of such
Automatic Additional Accounts. If such Opinion of Counsel with respect to any
Automatic Additional Accounts is not so delivered, the ability of the Transferor
to designate Automatic Additional Accounts shall be suspended until such time as
each Rating Agency otherwise consents in writing. If the Transferor is unable to
deliver an Opinion of Counsel with respect to any Automatic Additional Account,
such inability shall be deemed to be a breach of the representation and warranty
with respect to the Receivables in such Automatic Additional Account, provided
that the cure period for such breach will not exceed 30 days.
SECTION 2.6 Covenants of the Transferor. The Transferor hereby covenants
that:
(a) No Liens. Except for the conveyances hereunder or as provided in
Section 2.1 of the Indenture, the Transferor will not sell, pledge, assign or
transfer to any other Person, or grant, create, incur, assume or suffer to exist
any Lien on, any Receivable or any Collateral Security, whether now existing or
hereafter created, or any interest therein, or the Transferor's rights,
remedies, powers or privileges with respect to the Receivables under the
Receivables Purchase Agreement (other than the Lien held by VCI subject to
Article VII of the Receivables Purchase Agreement), and the Transferor shall
defend the right, title and interest of the Trust in, to and under the
Receivables and the Collateral Security, whether now existing or hereafter
created, and such rights, remedies, powers and privileges, against all claims of
third parties claiming through or under VCI.
(b) Delivery of Collections. In the event that the Transferor, VCI or any
Affiliate thereof receives payments in respect of Receivables, the Transferor
and VCI agree to pay or cause to be paid to the Servicer or any Successor
Servicer all payments received thereby in respect of the Receivables as soon as
practicable after receipt thereof, but in no event later than two Business Days
after the receipt by the Transferor, VCI or any Affiliate thereof.
(c) Agreement Matters. If VCI breaches any of the covenants in Section 2.5
of the Receivables Purchase Agreement and such breach has a material adverse
effect on the interests
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of the Noteholders and the Residual Interestholder, the Transferor shall enforce
its rights under the Receivables Purchase Agreement arising from such breach.
(d) Account Allocations. In the event that the Transferor is unable for
any reason to transfer Receivables to the Trust, then the Transferor agrees that
it shall allocate, after the occurrence of such event, payments on each Account
with respect to the principal balance of such Account first to the oldest
principal balance of such Account and to have such payments applied as
Collections in accordance with the terms of this Agreement. The parties hereto
agree that Non-Principal Receivables, whenever created, accrued in respect of
Principal Receivables which have been conveyed to the Trust shall continue to be
a part of the Trust notwithstanding any cessation of the transfer of additional
Principal Receivables to the Trust and Collections with respect thereto shall
continue to be allocated and paid in accordance with Section 8.2 of the
Indenture.
SECTION 2.7 Removal of Accounts Without Removal of Receivables.
(a) On each Determination Date the Transferor shall have the right to
remove Accounts from being designated to the Trust (without removing the
Receivables then existing that relate to such Accounts) in the manner prescribed
in Section 2.7(b).
(b) To remove Accounts from designation to the Trust, the Transferor (or
the Servicer on its behalf) shall take the following actions and make the
following determinations:
(i) not less than five Business Days prior to the Removal
Commencement Date, furnish to the Owner Trustee, the Indenture Trustee,
any Agent, any Enhancement Providers and the Rating Agencies a written
notice (the "Removal Notice") specifying the Determination Date (which may
be the Determination Date on which such notice is given) on which removal
of one or more Accounts will commence (a "Removal Commencement Date") and
specifying the Accounts the future generated Receivables of which are not
to be transferred to the Trust (the "Designated Accounts"); determine on
the Removal Commencement Date the aggregate principal balance of
Receivables in respect of each such Designated Account (the "Designated
Balance") and deliver to the Owner Trustee and the Indenture Trustee a
computer file or microfiche or written list (which may be in electronic
form) of the Designated Accounts specifying for each Designated Account
its account number and the aggregate amount of Receivables outstanding in
the Designated Account;
(ii) from and after such Removal Commencement Date, cease to
transfer to the Trust any and all Receivables arising in such Designated
Accounts;
(iii) from and after such Removal Commencement Date, allocate all
Principal Collections in respect of each such Designated Account, first to
the oldest outstanding principal balance of such Designated Account, until
the Determination Date on which the Designated Balance with respect to
such Designated Account is reduced to zero (the "Removal Date");
(iv) on each Business Day from and after such Removal Commencement
Date to and until the related Removal Date, allocate (A) to the Trust (to
be further allocated
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pursuant to the terms of this Agreement), Non-Principal Collections in
respect of each Designated Account for Receivables in all Designated
Accounts transferred to the Trust and (B) to the Transferor the remainder
of the Non-Principal Collections in the Designated Accounts;
(v) represent and warrant that the removal of any Eligible Account
on the Removal Date shall not, in the reasonable belief of the Transferor,
result in the occurrence of an Early Amortization Event for any Series or
class of Notes;
(vi) represent and warrant that no selection procedures reasonably
believed by the Transferor to be adverse to the interests of the
Noteholders or any Enhancement Provider were utilized in selecting the
Designated Accounts; and
(vii) on or before the related Removal Commencement Date, deliver to
the Owner Trustee, the Indenture Trustee, any Agent and any Enhancement
Providers an Officers' Certificate confirming the items set forth in
clauses (vi) through (vii) above and confirming that the Transferor
reasonably believes that the removal of the Removed Accounts will not
result in the occurrence of an Early Amortization Event; the Owner Trustee
and the Indenture Trustee may conclusively rely on such Officers'
Certificate and shall have no duty to make inquiries with regard to the
matters set forth therein and shall incur no liability in so relying.
No Designated Accounts held by the Trust shall be so removed if such
removal will result in a reduction or withdrawal of the rating of any
outstanding Series or class of Notes by any applicable Rating Agency.
Upon satisfaction of the above conditions, on the Removal Date with
respect to any such Trust Account, the Transferor shall cease to allocate any
Collections therefrom in accordance with this Section and such Designated
Account shall be deemed removed from designation to the Trust for all purposes
(a "Removed Account"). Within five Business Days after the Removal Date, the
Trust shall deliver to the Transferor a reassignment in form and substance
reasonably acceptable to the parties hereto and to the Indenture Trustee (the
"Reassignment"), together with appropriate UCC financing statements.
SECTION 2.8 Removal of Receivables With Accounts.
(a) If, during any Collection Period an Account becomes an Out of Trust
Account and if as of the close of business on the last day of such Collection
Period (such last day shall be deemed to be the Removal Commencement Date), the
Pool Balance is greater than the Required Participation Amount as of the
following Payment Date (after giving effect to the allocations, distributions,
withdrawals and deposits to be made on such Payment Date), such Out of Trust
Accounts shall automatically be removed by the Transferor from designation to
the Trust and existing Receivables in such Out of Trust Accounts shall
automatically be reassigned to the Transferor without any consideration therefor
in the manner prescribed in Section 2.8(c).
(b) If, as of the close of business as of the last day of any Collection
Period, the Pool Balance is greater than the Required Participation Amount as of
the following Payment Date (after giving effect to the allocations,
distributions, withdrawals and deposits to be made on such
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Payment Date), then the Transferor may remove Accounts from designation to
the Trust by selecting Accounts in a manner that the Transferor reasonably
believes are not materially adverse to the interests of the Noteholders
and the then existing Receivables in such Accounts shall be reassigned to
the Transferor ("Removed Accounts and Receivables"), without any
consideration therefor in the manner prescribed in Section 2.8(c), to the
extent such that, after giving effect to the removal of such Accounts from
designation to the Trust and the reassignment of the Receivables existing
in such Accounts, the Pool Balance as of the related Removal and
Reassignment Date exceeds the Required Participation Amount; provided,
however, no more than one such removal of Accounts from designation to the
Trust pursuant to this Section 2.8(b) may occur during any calendar month.
(c) To remove Accounts from designation to the Trust and reassign the then
existing Receivables in such Accounts, the Transferor (or the Servicer on its
behalf) shall take the following actions and make the following determinations:
(i) on or before the fifth Business Day immediately preceding the
Removal and Reassignment Date furnish to the Owner Trustee, the Indenture
Trustee, any Agent, any Enhancement Providers and the Rating Agencies a
Removal Notice specifying the Removed Accounts and Receivables which are
to be removed and the then existing Receivables in such Accounts which are
to be reassigned from the Trust to the Transferor and the Determination
Date on which such removal of Removed Accounts and Receivables and
reassignment of such Receivables is to occur (the "Removal and
Reassignment Date");
(ii) on or prior to the date that is five Business Days after the
Removal and Reassignment Date, the Transferor shall deliver a computer
file or microfiche or written list (which may be in electronic form)
containing a true and complete list of the Removed Accounts and
Receivables specifying for each such Account, as of the Removal and
Reassignment Date, its account number and the aggregate amount of
Receivables outstanding in such Account;
(iii) represent and warrant that the list of Removed Accounts and
Receivables delivered pursuant to clause (ii), as of the Removal and
Reassignment Date, is true and complete in all material respects; and
(iv) (A) in the case of a removal of Accounts and related
Receivables pursuant to Section 2.8(b), satisfy the Rating Agency
Condition with respect to such removal and (B) deliver to the Owner
Trustee, the Indenture Trustee, any Agent and any Enhancement Providers an
Officers' Certificate, dated the Removal and Reassignment Date, confirming
that such removal will not cause an Early Amortization Event to occur for
any Series or class of Notes.
SECTION 2.9 Transfer of Ineligible Receivables. The Transferor shall sell
to the Trust on each Transfer Date any and all Receivables arising in any
Eligible Accounts that are Ineligible Receivables, provided that (a) on the
Initial Cut-Off Date or, in the case of Receivables arising in Additional
Accounts, on the related Additional Cut-Off Date, and on the applicable Transfer
Date, the Account in which such Receivables arise is an Eligible Account and (b)
the
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Incremental Subordinated Amount is adjusted in accordance with the definition of
Incremental Subordinated Amount as defined in the related Series Supplement.
ARTICLE III
ADMINISTRATION AND SERVICING OF RECEIVABLES
SECTION 3.1 Acceptance of Appointment and Other Matters Relating to
the Servicer.
(a) The Servicer shall service and administer the Receivables, shall
collect payments due under the Receivables and shall charge-off as uncollectible
Receivables, all in accordance with its Customary Servicing Practices in effect
from time to time, using that same degree of skill and attention that the
Servicer exercises with respect to all comparable wholesale receivables that it
services for itself or others. The Servicer shall have full power and authority,
acting alone or through any party properly designated by it hereunder, to do any
and all things in connection with such servicing and administration which it may
deem necessary or desirable. Without limiting the generality of the foregoing
and subject to Section 7.1, the Servicer is hereby authorized and empowered,
unless such power and authority is revoked by the Owner Trustee on account of
the occurrence of a Servicing Default pursuant to Section 7.1, (i) to instruct
the Indenture Trustee to make withdrawals and payments from the Collection
Account and any Series Account as set forth in this Agreement, (ii) to instruct
the Owner Trustee to take any action required or permitted under any
Enhancement, (iii) to execute and deliver, on behalf of the Trust for the
benefit of the Residual Interestholder and the Beneficiaries, any and all
instruments of satisfaction or cancellation, or of partial or full release or
discharge, and all other comparable instruments, with respect to the Receivables
and, after the delinquency of any Receivable and to the extent permitted under
and in compliance with applicable Requirements of Law, to commence enforcement
proceedings with respect to such Receivables, (iv) to make any filings, reports,
notices, applications, registrations with, and seek any consents or
authorizations from, the Securities and Exchange Commission and any state
securities authority on behalf of the Trust as may be necessary or advisable to
comply with any federal or state securities laws or reporting requirement, and
(v) to delegate all or any of its servicing, collection, enforcement and
administrative duties hereunder with respect to the Accounts and the Receivables
to any Person who agrees to conduct such duties in accordance with the Floorplan
Financing Guidelines and this Agreement, in each case if and to the extent
applicable to the performance of such duties; provided, however, that no
delegation will relieve the Servicer of its liability and responsibility with
respect to such duties. The Owner Trustee shall furnish the Servicer with any
powers of attorney and other documents reasonably necessary or appropriate to
enable the Servicer to carry out its servicing and administrative duties
hereunder.
(b) In the event that the Transferor is unable for any reason to transfer
Receivables to the Trust in accordance with the provisions of this Agreement
then, in any such event, the Servicer agrees (i) to give prompt written notice
thereof to the Owner Trustee, the Indenture Trustee, any Enhancement Providers,
any Agent and each Rating Agency and (ii) that it shall in any such event
allocate, after the occurrence of such event, payments on each Account with
respect to the principal balance of such Account first to the oldest principal
balance of such Account, and to have such payments applied as Collections in
accordance with Section 8.2 of the
15
Indenture. The parties hereto agree that Non-Principal Receivables, whenever
created, accrued in respect of Principal Receivables which have been conveyed to
the Trust shall continue to be a part of the Trust and Trust Assets
notwithstanding any cessation of the transfer of additional Principal
Receivables to the Trust, and Collections with respect to such Principal
Receivables and Non-Principal Receivables shall continue to be allocated and
paid to the Trust in accordance with the terms of this Agreement.
(c) The Servicer shall not, and any Successor Servicer shall not be
obligated to, use separate servicing procedures, offices, employees or accounts
for servicing the Receivables from the procedures, offices, employees and
accounts used by the Servicer in connection with servicing other wholesale
receivables.
(d) The Servicer shall comply with and perform its servicing obligations
with respect to the Accounts and Receivables in accordance with the Floorplan
Financing Agreements relating to the Accounts and the Floorplan Financing
Guidelines, except insofar as any failure to so comply or perform would not
materially and adversely affect the rights of the Trust or any of the
Beneficiaries. Subject to compliance with all Requirements of Law, the Servicer
(or VCI) may change the terms and provisions of the Floorplan Financing
Agreements or the Floorplan Financing Guidelines in any respect (including the
calculation of the amount or the timing of charge-offs and the rate of the
finance charge assessed under these agreements), only if (i) as a result of such
change, in the reasonable judgment of the Servicer, no Early Amortization Event
will occur at any time and none of the Residual Interestholder or Beneficiaries
shall be materially adversely affected (it being understood that any reduction
in the rate paid by Accounts will not materially adversely affect the Residual
Interestholder or Beneficiaries if it satisfies the condition in clause (iii)
below), (ii) such change is made applicable to the comparable segment of
wholesale accounts owned or serviced by the Servicer which have characteristics
the same as, or substantially similar to, the Accounts which are the subject of
such change and (iii) in the case of a reduction in the rate of such finance
charges, the Servicer (or VCI) does not reasonably expect any such reduction to
result in the weighted average of the reference rates applicable to the finance
charges for any Collection Period being less than the weighted average of the
sum of the Note Rates (or, in the case of a Series with a fixed Note rate and a
swap agreement, the floating rate payable by the Trust under the swap agreement)
and the Servicing Fee Rates for all outstanding Series for the related Interest
Period (each such term as defined in the related Series Supplement).
SECTION 3.2 Servicing Compensation. As full compensation for its servicing
activities hereunder and reimbursement for its expenses as set forth in the
immediately following paragraph, the Servicer shall be entitled to receive the
Servicing Fee on each Payment Date on or prior to the Trust Termination Date
payable in arrears. The "Servicing Fee" shall be the aggregate of the Monthly
Servicing Fees specified in the Series Supplements. The Servicing Fee shall be
payable to the Servicer solely to the extent amounts are available for payment
in accordance with the terms of the applicable Series Supplement.
The Servicer's expenses include the amounts due to the Owner Trustee
pursuant to Section 6.9 of the Trust Agreement and the Indenture Trustee
pursuant to Section 6.7 of the Indenture and the reasonable fees and
disbursements of attorneys, independent accountants and all other expenses
incurred by the Servicer in connection with its activities hereunder, and all
16
fees and expenses of the Trust not expressly stated herein to be for the account
of the Residual Interestholder or the Beneficiaries. Except as otherwise
provided in a Series Supplement, the Servicer shall be required to pay such
expenses for its own account, and shall not be entitled to any payment therefor
other than the Servicing Fee. Except as otherwise provided in a Series
Supplement, the Servicer will be solely responsible for all fees and expenses
incurred by or on behalf of the Servicer in connection herewith and the Servicer
will not be entitled to any fee or other payment from, or claim on, any of the
Trust Assets (other than the Servicing Fee).
SECTION 3.3 Representations, Warranties and Covenants of the Servicer.
(a) VCI, as Servicer, hereby makes, and any Successor Servicer by its
appointment hereunder shall make, on each Closing Date (and on the date of any
such appointment) the following representations, warranties and covenants:
(i) Existence and Power. VCI is a corporation validly existing and
in good standing under the laws of its state of organization and has, in
all material respects, all power and authority required to carry on its
business as now conducted. VCI has obtained all necessary licenses and
approvals in each jurisdiction where the failure to do so would materially
and adversely affect the ability of VCI to perform its obligations under
the Basic Documents or affect the enforceability or collectibility of the
Receivables or any other part of the Conveyed Assets.
(ii) Authorization and No Contravention. The execution, delivery and
performance by VCI of each Basic Document to which it is a party (i) have
been duly authorized by all necessary action on the part of VCI and (ii)
do not contravene or constitute a default under (A) any applicable law,
rule or regulation, (B) its organizational documents or (C) any material
agreement, contract, order or other instrument to which it is a party or
its property is subject (other than violations of which do not affect the
legality, validity or enforceability of any of such agreements and which,
individually or in the aggregate, would not materially and adversely
affect the transactions contemplated by, or VCI's ability to perform its
obligations under, the Basic Documents).
(iii) Binding Effect. Each Basic Document to which VCI is a party
constitutes the legal, valid and binding obligation of VCI enforceable
against VCI in accordance with its terms, except as such enforceability
may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium, receivership, conservatorship or other similar laws affecting
creditors' rights generally and, if applicable, the rights of creditors of
limited liability companies from time to time in effect or by general
principles of equity.
(iv) No Proceedings. There are no actions, suits or proceedings
pending or, to the knowledge of VCI, threatened against VCI before or by
any Governmental Authority that (i) assert the invalidity or
unenforceability of this Agreement or any of the other Basic Documents,
(ii) seeking to prevent the issuance of any Series of Notes or the
consummation of any of the transactions contemplated by this Agreement or
any of the other Basic Documents, (iii) seeking any determination or
ruling that would materially and
17
adversely affect the performance by VCI of its obligations under this
Agreement or any of the other Basic Documents, or (iv) relating to VCI
that would materially and adversely affect the federal or Applicable Tax
State income, excise, franchise or similar tax attributes of any Series of
Notes.
(v) Compliance with Requirements of Law. Such party shall duly
satisfy all obligations on its part to be fulfilled under or in connection
with the Receivables and the Accounts, will maintain in effect all
qualifications required under Requirements of Law in order to service
properly the Receivables and the Accounts and will comply in all material
respects with all Requirements of Law in connection with servicing the
Receivables and the Accounts the failure to comply with which would have a
material adverse effect on the interests of the Residual Interest holder
or the Beneficiaries.
(vi) No Rescission or Cancellation. Such party shall not permit any
rescission or cancellation of a Receivable except as ordered by a court of
competent jurisdiction or other Governmental Authority.
(vii) Protection of Beneficiaries Rights. Such party shall not take
any action, nor omit to take any action, which action or omission would
impair the rights of Beneficiaries in the Receivables nor shall it
reschedule, revise or defer payments due on any Receivable except in
accordance with the Floorplan Financing Guidelines.
(viii) Negative Pledge. Except for the conveyance hereunder to the
Owner Trustee and the pledge to the Indenture Trustee under the Indenture,
the Servicer will not sell, pledge, assign or transfer to any other
Person, or grant, create, incur, assume or suffer to exist any Lien on,
any Receivable sold and assigned to the Trust, whether now existing or
hereafter created, or any interest therein, and the Servicer shall defend
the rights, title and interest of the Trust in, to and under any
Receivable sold and assigned to the Trust, whether now existing or
hereafter created, against all claims of third parties claiming through or
under the Transferor or the Servicer.
(b) Notice of Breach. The representations and warranties set forth in this
Section 3.3 shall survive the transfer and assignment of the Receivables to the
Trust and the pledge of the Receivables to the Indenture Trustee pursuant to the
Indenture. Upon discovery by the Transferor, the Servicer, the Owner Trustee, or
the Indenture Trustee of a breach of any of the representations and warranties
set forth in this Section 3.3, the party discovering such breach shall give
prompt written notice to the other parties and to any Enhancement Providers.
(c) Purchase. In the event any representation or warranty under Section
3.3(a)(vii), (viii) or (ix) is not true and correct in any material respect as
of the date specified therein with respect to any Receivable or Account and such
breach has a material adverse effect on the value of such Receivable, then,
within 30 days (or such longer period as may be agreed to by the Owner Trustee)
of the earlier to occur of the discovery of any such event by the Transferor or
the Servicer, or receipt by the Transferor or the Servicer of written notice of
any such event given by the Owner Trustee, the Indenture Trustee or any
Enhancement Providers, the Servicer shall purchase such Receivable or, in the
case of an untrue representation with respect to an Account, all Receivables in
such Account, on the Determination Date immediately succeeding the expiration of
such 30-day period (or such longer period as may be agreed to by the Owner
Trustee) on the terms and conditions set forth in the next succeeding paragraph;
provided,
18
however, that no such purchase shall be required to be made with respect to such
Receivable if, by the end of such 30-day period (or such longer period as may be
agreed to by the Owner Trustee) the breached representation or warranty shall
then be true and correct in all material respects and any material adverse
effect caused thereby shall have been cured. The Servicer shall effect such
purchase by depositing in the Collection Account in immediately available funds
an amount equal to the Purchase Price of such Receivable. Any such deposit of
such Purchase Price into the Collection Account shall be considered a Transfer
Deposit Amount and shall be applied in accordance with the terms of this
Agreement.
Upon each such payment of such Purchase Price, the Trust shall
automatically and without further action be deemed to sell, transfer, assign,
set over and otherwise convey to the Servicer, without recourse, representation
or warranty, all right, title and interest of the Trust in and to such
Receivables, all monies due or to become due with respect thereto and all
proceeds thereof and the Collateral Security. The Owner Trustee shall execute
such documents and instruments of transfer or assignment and take such other
actions as shall be reasonably requested by the Servicer to effect the
conveyance of any such Receivables pursuant to this Section 3.3. The obligation
of the Servicer to purchase such Receivables, and to make the deposits required
to be made to the Collection Account as provided in the preceding paragraph,
shall constitute the sole remedy respecting the event giving rise to such
obligation available to the Trust, the Residual Interestholder (or the Owner
Trustee on behalf of the Residual Interestholder) or the Noteholders (or the
Indenture Trustee on behalf of the Noteholders).
SECTION 3.4 Reports and Records.
(a) On or before each Payment Date, with respect to each outstanding
Series, the Servicer shall deliver to any Enhancement Providers, the Rating
Agencies, the Owner Trustee, and the Indenture Trustee a Payment Date Statement
for such Payment Date and the Indenture Trustee shall make such Payment Date
Statement available to the Noteholders. Each such statement to be delivered to
the Noteholders and Residual Interestholder shall set forth the following
information concerning the Notes with respect to such Payment Date or the
preceding Collection Period:
(i) the aggregate amount of Collections, the aggregate amount of
Non-Principal Collections and the aggregate amount of Principal
Collections processed during the immediately preceding Collection Period
and the Pool Balance, and the Residual Participation Amount and the amount
on deposit in the Excess Funding Account as of the close of business on
the last day of the preceding Collection Period;
(ii) the total amount of distributions, if any, made with respect to
any Series or class of Notes;
(iii) the amount, if any, of the distribution allocable to principal
on each Series or class of Notes;
(iv) the amount, if any, of the distribution allocable to interest
on or with respect to each Series or class of Notes;
19
(v) the Invested Amount and the aggregate Outstanding Amount for
each Series or class of Notes, each as of such date and after giving
effect to all payments reported under clause (ii) above;
(vi) the amount of the Monthly Servicing Fee and the Noteholder
Monthly Servicing Fee paid to the Servicer with respect to the related
Collection Period or Periods, as the case may be;
(vii) the per annum interest rate for the next Payment Date for any
Series or class of Notes with a variable or adjustable interest rate;
(viii) the amount of Receivables that become Defaulted Receivables
during the related Collection Period;
(ix) the accumulated interest and principal shortfalls, if any, on
each Series or class of Notes and the change in each of such amounts from
the preceding Payment Date;
(x) the balance of Excess Funding Account on the related
Determination Date after giving effect to changes therein or any
distributions therefrom on such date; and
(xi) with respect to each Series of Notes, the items set forth in
the applicable Series Supplement.
Each amount set forth pursuant to clauses (ii) and (iii) above with respect to
the Notes shall be expressed as a dollar amount per $1,000 of initial principal
amount of the Notes.
(b) Within the prescribed period of time for tax reporting purposes after
the end of each calendar year during the term of this Agreement, the Indenture
Trustee shall furnish (or cause to be furnished), to each Person who at any time
during such calendar year shall have been a Holder of record of Notes or the
Residual Interestholder, respectively, and received any payment thereon, a
statement containing such information as may be required by the Code and
applicable Treasury Regulations to enable such Noteholder or Residual
Interestholder to prepare its federal income tax returns.
(c) On or before each Advance Date or Pay Down Date, with respect to each
outstanding Series, the Servicer shall deliver to any Enhancement Providers, the
Rating Agencies, the Owner Trustee, and the Indenture Trustee a Reset Date
Statement for the related Reset Date substantially in the form set forth in the
Series Supplement for that Series of Notes.
(d) A copy of each statement provided pursuant to Section 3.4(a) shall be
made available for inspection at the Corporate Trust Office.
SECTION 3.5 Annual Servicer's Certificate. The Servicer will deliver to
the Rating Agencies, the Owner Trustee, the Indenture Trustee, any Agent and any
Enhancement Providers on or before April 30 of each calendar year, beginning
with April 30, 2001, an Officers' Certificate substantially in the form of
Exhibit B stating that (a) a review of the activities of the Servicer during the
preceding calendar year (or since the Initial Closing Date, in the case of the
first such Officers' Certificate) and of its performance under this Agreement
was made under the
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supervision of the officer signing such certificate and (b) to the best of such
officer's knowledge, based on such review, the Servicer has performed in all
material respects its obligations under this Agreement throughout such year (or
since the Initial Closing Date, in the case of the first such Officers'
Certificate), or, if there has been a material default in the performance of any
such obligation, specifying each such default known to such officer and the
nature and status thereof. A copy of such certificate may be obtained by any
Noteholder or the Residual Interestholder by a request in writing to the Owner
Trustee addressed to the Corporate Trust Office.
SECTION 3.6 Annual Independent Public Accountants' Servicing Report. The
Servicer shall cause a firm of independent certified public accountants, who may
also render other services to the Servicer or to its Affiliates, to deliver to
the Owner Trustee, the Indenture Trustee, the Rating Agencies, each Agent and
each Enhancement Provider on or before April 30 of each year, with the next
report due April 30, 2006, a report addressed to the board of directors of the
Servicer, to the effect that such firm (a) performed tests relating to wholesale
receivables (including financing arrangements with automobile dealers to finance
their automobile and light-duty truck inventory) serviced for others in
accordance with the Uniform Single Attestation Program for Mortgage Bankers
("USAP"), to the extent the procedures in such program are applicable to the
servicing obligations set forth in this Agreement, and (b) except as described
in the report, disclosed no exceptions or errors in the records relating to
wholesale receivables (including financing arrangements with automobile dealers
to finance their automobile and light-duty truck inventory) serviced for others
that, in the firm's opinion, paragraph four of such USAP requires such firm to
report. A copy of such report may be obtained by any Noteholder or the Residual
Interestholder by a request in writing to the Owner Trustee addressed to the
Corporate Trust Office. The report will also indicate that the firm is
independent of the Servicer within the meaning of the Code of Professional
Ethics of the American Institute of Certified Public Accountants. The
certification required by this paragraph may be replaced by any similar
certification using standards other than USAP 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 U.S.
Securities and Exchange Commission."
SECTION 3.7 Tax Treatment. The Transferor has entered into this Agreement
and the Notes have been (or will be) issued with the intention that the Notes
will qualify under applicable tax law as indebtedness of VDF secured by the
Receivables. The Transferor, each Beneficiary, the Residual Interestholder and
each Note Owner, by the acceptance of its Note or Book-Entry Note, as
applicable, agrees to treat the Notes as indebtedness of VDF secured by the
Receivables for federal income taxes, and any other income, franchise taxes,
Michigan Single Business tax or any other taxes imposed on or measured by income
of any applicable state, local or foreign jurisdiction.
SECTION 3.8 Notices to VCI. In the event VCI is no longer acting as
Servicer, any Successor Servicer appointed pursuant to Section 7.2 shall deliver
or make available to VCI, as the case may be, each certificate and report
required to be prepared, forwarded or delivered thereafter pursuant to Sections
3.4, 3.5 or 3.6.
SECTION 3.9 Adjustments.
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(a) If the Servicer adjusts downward the amount of any Principal
Receivable because of a rebate, refund, credit adjustment or billing error to a
Dealer, or because such Receivable was created in respect of a Vehicle which was
refused or returned by a Dealer, then, in any such case, the Pool Balance and
the Residual Participation Amount shall be automatically reduced by the amount
of the adjustment. Furthermore, if following such a reduction the Residual
Participation Amount would be less than the Trust Available Subordinated Amount
on the immediately preceding Determination Date (after giving effect to the
allocations, distributions, withdrawals and deposits to be made on the Payment
Date following such Determination Date), then the Transferor shall pay an amount
equal to such deficiency (up to the amount of such adjustment) into the
Collection Account within 5 Business Days after the day on which such adjustment
or reduction occurs (each such payment an "Adjustment Payment").
(b) If (i) the Servicer makes a deposit into the Collection Account in
respect of a Collection of a Receivable and such Collection was received by the
Servicer in the form of a check which is not honored for any reason or (ii) the
Servicer makes a mistake with respect to the amount of any Collection and
deposits an amount that is less than or more than the actual amount of such
Collection, the Servicer shall appropriately adjust the amount subsequently
deposited into the Collection Account to reflect such dishonored check or
mistake. Any Receivable in respect of which a dishonored check is received shall
be deemed not to have been paid.
(c) If the Servicer adjusts downward the amount of interest otherwise
payable on any Receivable with respect to any Collection Period as a result of
any interest rebate program, the Servicer shall deposit into the Collection
Account on or prior to the Payment Date related to such Collection Period an
amount equal to the amount of such rebate (each such payment, a "Rebate
Payment").
ARTICLE IV
ALLOCATION AND APPLICATION OF COLLECTIONS
SECTION 4.1 Establishment of Accounts.
(a) The Servicer, for the benefit of the Noteholders, the Residual
Interestholder and any Enhancement Providers, shall cause to be established and
maintained in the name of the Indenture Trustee an Eligible Deposit Account
bearing a designation clearly indicating that the funds deposited therein are
held for the benefit of the Noteholders, the Residual Interestholder and any
Enhancement Providers (the "Collection Account").
(b) The Servicer, for the benefit of the Noteholders, shall cause to be
established and maintained in the name of the Indenture Trustee an Eligible
Deposit Account bearing a designation clearly indicating that the funds
deposited therein are held for the benefit of the Noteholders (the "Note
Distribution Account").
(c) The Servicer, for the benefit of the Noteholders, the Residual
Interestholder and the Enhancement Providers shall cause to be established and
maintained in the name of the Indenture Trustee an Eligible Deposit Account
bearing a designation clearly indicating that the
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funds deposited therein are held for the benefit of the Noteholders, the
Residual Interestholder and any Enhancement Providers (the "Excess Funding
Account").
(d) The Indenture Trustee shall possess all right, title and interest in
all funds from time to time on deposit in, and all Eligible Investments credited
to, the Trust Accounts and in all proceeds thereof. The Trust Accounts shall be
under the sole dominion and control of the Indenture Trustee for the benefit of
the Noteholders, the Residual Interestholder and any Enhancement Providers. If,
at any time, any Trust Account ceases to be an Eligible Deposit Account, the
Servicer shall establish a substitute Eligible Deposit Account as such Trust
Account, instruct the Indenture Trustee or the Trust as applicable, in writing,
to transfer any cash and/or any Eligible Investments to such new Trust Account
and, from the date any such substitute account is established, such account
shall be the Trust Account. Neither the Transferor nor the Servicer, nor any
person or entity claiming by, through or under the Transferor or Servicer, shall
have any right, title or interest in, or any right to withdraw any amount from,
the Trust Accounts. Pursuant to the authority granted to the Servicer in Section
3.1, the Servicer shall have the power, revocable by the Indenture Trustee (or
by the Owner Trustee with the written consent of the Indenture Trustee), to
instruct the Indenture Trustee or the Trust as applicable, to make withdrawals
and payments from the Trust Accounts for the purposes of carrying out the
Servicer's or the Trust's duties specified in this Agreement or permitting the
Indenture Trustee to carry out its duties under the Indenture.
All Eligible Investments shall be held by the Indenture Trustee or the
Owner Trustee as applicable, for the benefit of the Noteholder, the Residual
Interestholder and any Enhancement Providers. Funds on deposit in the Trust
Accounts shall at the written direction of the Servicer be invested by the
Indenture Trustee or the Owner Trustee as applicable, solely in Eligible
Investments that will mature so that such funds will be available at the close
of business on or before the Business Day prior to the next Payment Date (or on
or before 10:00 a.m. on such following Payment Date in the case of Eligible
Investments in respect of which the Indenture Trustee is the obligor or Eligible
Investments specified in clauses (h) or (j) of the definition thereof). Unless
otherwise specified in the related Series Supplement, all interest and other
investment earnings (net of losses and investment expenses) on funds on deposit
in each Trust Account shall be credited to the Trust Account when received.
Schedule 3, which is hereby incorporated into and made part of this Agreement,
identifies the Trust Accounts by setting forth the account numbers of each
account, the account designation of each account and the name of the Institution
with which such accounts have been established. If a substitute Trust Account is
established pursuant to this Section 4.1, the Servicer shall provide to the
Owner Trustee and the Indenture Trustee an amended Schedule 3, setting forth the
relevant information for such substitute Trust Account. In the absence of timely
and specific written investment direction from the Servicer, the Indenture
Trustee shall invest any cash held by it in Eligible Investments specified in
clause (h) of the definition thereof. In no event shall the Indenture Trustee be
liable for the selection of investments or for investment losses incurred
thereon. The Indenture Trustee shall have no liability in respect of losses
incurred as a result of the liquidation of any investment prior to its stated
maturity or the failure of the Servicer to provide timely written investment
direction.
SECTION 4.2 Allocations and Applications of Collections and Other Funds.
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(a) Except as otherwise provided in Section 4.2(b) and (c), the Servicer
shall deposit Collections into the Collection Account as promptly as possible
after the Date of Processing of such Collections, but in no event later than the
second Business Day after such Date of Processing.
(b) Notwithstanding anything in this Agreement to the contrary, for so
long as (i) VCI remains the Servicer hereunder, (ii) no Servicer Default has
occurred and is continuing and (iii) (x) Volkswagen AG has a short-term debt
rating of at least A-1 from Standard & Poor's and P-1 from Moody's, (y) both
Standard & Poor's and Moody's are then rating a debt issuance of VWOA 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, then the Servicer need not make the daily deposits of Collections into the
Collection Account as provided in Section 4.2(a), but may make a single deposit
into the Collection Account in the same-day or next-day funds not later than
12:00 noon, New York City time, on the Payment Date in a net amount equal to the
amount which would have been on deposit with respect to the immediately
preceding Collection Period in the Collection Account.
(c) Subject to Section 4.3, but notwithstanding anything else in this
Agreement to the contrary, (i) the Servicer will only be required to deposit
Collections into the Collection Account as set forth in paragraph (a) above up
to the aggregate amount of Collections required to be deposited into any Series
Account or, without duplication, distributed on the related Payment Date to
Noteholders, to any Agent or to any Enhancement Provider pursuant to the terms
of any Series Supplement or Enhancement Agreement with respect to the related
Collection Period and (ii) if at any time prior to such Payment Date the amount
of Collections deposited in the Collection Account exceeds the amount required
to be deposited pursuant to clause (i) above, the Servicer will be permitted to
withdraw the excess from the Collection Account.
(d) Collections, Defaulted Amounts and Miscellaneous Payments will be
allocated to each Series as set forth in the applicable Series Supplement.
SECTION 4.3 Excess Principal Collections. On each Determination Date, (a)
the Servicer shall allocate Excess Principal Collections (as described below)
for the related Collection Period to each Series as set forth in the related
Series Supplement, and (b) the Servicer shall instruct the Indenture Trustee in
writing to withdraw from the Collection Account and pay to the Residual
Interestholder (i) an amount equal to the excess, if any, of (x) the aggregate
amount for all outstanding Series of Principal Collections that the related
Series Supplements specify are to be treated as "Excess Principal Collections"
with respect to the related Payment Date over (y) the aggregate amount for all
outstanding Series that the related Series Supplements specify are "Principal
Shortfalls" with respect to such Payment Date and, without duplication, (ii) the
aggregate amount for all outstanding Series of that portion of Principal
Collections that the related Series Supplements specify are to be allocated and
paid to the Residual Interestholder with respect to such Payment Date; provided,
however, that in the case of clauses (i) and (ii), such amounts shall be paid to
the Residual Interestholder only if the Residual Participation Amount for such
Payment Date (determined after giving effect to any Principal Receivables
transferred to the Trust on such Determination Date) exceeds the Trust Available
Subordinated Amount on such Determination Date (after giving effect to the
allocations, distributions, withdrawals and deposits to be made on such Payment
Date). The
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amount held in the Collection Account as a result of the proviso in the
preceding sentence ("Unallocated Principal Collections") shall be paid to the
Residual Interestholder at the time the Residual Participation Amount exceeds
the Trust Available Subordinated Amount for the immediately preceding
Determination Date (after giving effect to the allocations, distributions,
withdrawals and deposits to be made on the Payment Date immediately following
such Determination Date); provided, however, that any Unallocated Principal
Collections on deposit in the Collection Account at any time during which any
Series is in its Amortization Period, Accumulation Period, Controlled
Amortization Period or Early Amortization Period shall be deemed to be
Miscellaneous Payments and shall be allocated and distributed in accordance with
Section 4.2 and the terms of each Series Supplement.
SECTION 4.4 Excess Funding Account.
(a) In addition to any other amounts permitted or required to be deposited
into the Excess Funding Account pursuant to the Basic Documents, at the
direction of the Residual Interestholder to the Servicer, Owner Trustee and
Indenture Trustee, any amounts otherwise distributable to the Residual
Interestholder pursuant to the terms of this Agreement, the Indenture (including
any Series Supplement) and the Trust Agreement, shall be deposited into the
Excess Funding Account.
(b) The net proceeds from the issuance of any new Series of Notes or the
increase in the Invested Amount of any Series of Notes, first, shall be
deposited into the Excess Funding Account such that the Pool Balance is not less
than the Required Participation Amount and, second, shall be paid to the
Residual Interestholder as provided in the Trust Agreement or, to the extent
requested by the Residual Interestholder, deposited into the Excess Funding
Account.
(c) Unless an Early Amortization Event shall have occurred, amounts on
deposit in the Excess Funding Account may be used to repay the outstanding
principal amount of any Series of Notes to the extent required or permitted by
the terms of the related Series Supplement.
(d) At the request of the Residual Interestholder any amount held in the
Excess Funding Account in excess of the amount required so that the Pool Balance
is not less than the Required Participation Amount shall be paid to the Residual
Interestholder at the time and to the extent requested by the Residual
Interestholder; provided, however, unless the Series Supplement provides
otherwise, any such amounts on deposit in the Excess Funding Account at any time
during which any Series is in its Early Amortization Period, Accumulation
Period, Controlled Amortization Period or Amortization Period shall be deemed to
be a Miscellaneous Payment and shall be allocated and distributed in accordance
with the Series Supplement.
SECTION 4.5 Net Deposits. The Servicer, the Transferor, the Indenture
Trustee and the Owner Trustee may make any remittances pursuant to this Article
IV net of amounts to be distributed by the applicable recipient to such
remitting party. Nonetheless, each such party shall account for all of the above
described remittances and distributions as if the amounts were deposited and/or
transferred separately.
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ARTICLE V
DISTRIBUTIONS AND REPORTS TO NOTEHOLDERS AND
THE RESIDUAL INTERESTHOLDER
Distributions shall be made to, and reports shall be provided to, the
Noteholders and the Residual Interestholder as set forth in the Indenture, the
Trust Agreement and the applicable Series Supplement.
ARTICLE VI
OTHER MATTERS RELATING TO THE SERVICER
SECTION 6.1 Liability of the Servicer. The Servicer shall be liable under
this Article VI only to the extent of the obligations specifically undertaken by
the Servicer in its capacity as Servicer.
SECTION 6.2 Merger or Consolidation of, or Assumption of, the Obligations
of the Servicer. The Servicer shall not consolidate with or merge into any other
corporation or convey or transfer its properties and assets substantially as an
entirety to any Person, unless:
(a) the corporation formed by such consolidation or into which the
Servicer is merged or the Person which acquires by conveyance or transfer the
properties and assets of the Servicer substantially as an entirety shall be a
corporation organized and existing under the laws of the United States of
America or any state or the District of Columbia and, if the Servicer is not the
surviving entity, such corporation shall assume, without the execution or filing
of any paper or any further act on the part of any of the parties hereto, the
performance of every covenant and obligation of the Servicer hereunder; and
(b) the Servicer has delivered to the Owner Trustee and the Indenture
Trustee an Officers' Certificate and an Opinion of Counsel each stating that
such consolidation, merger, conveyance or transfer will comply with this Section
6.2 and that all conditions precedent herein provided for relating to such
transaction have been complied with.
SECTION 6.3 Limitation on Liability of the Servicer and Others.
(a) Except as provided in Section 6.4, neither the Servicer nor any of the
directors or officers or employees or agents of the Servicer, shall be under any
liability to the Trust, the Owner Trustee, the Indenture Trustee, the
Noteholders, the Residual Interestholder, the Enhancement Providers, the Agent
or any other Person for any action taken or for refraining from the taking of
any action in its capacity as Servicer pursuant to this Agreement; provided,
however, that this provision shall not protect the Servicer or any such person
against any liability which would otherwise be imposed by reason of willful
misfeasance, bad faith or negligence in the performance of duties or by reason
of reckless disregard of obligations and duties hereunder. The Servicer and any
director or officer or employee or agent of the Servicer may rely in good faith
on any document of any kind prima facie properly executed and submitted by any
Person respecting any matters arising hereunder. The Servicer shall not be under
any obligation to
26
appear in, prosecute or defend any legal action which is not incidental to its
duties to service the Receivables in accordance with this Agreement which in its
reasonable opinion may involve it in any expense or liability.
(b) Except as provided in this Agreement, the Servicer shall not be under
any obligation to appear in, prosecute or defend any legal action that is not
incidental to its duties to service the Receivables in accordance with this
Agreement and that in its opinion may involve it in any expense or liability;
provided, however, that the Servicer may undertake any reasonable action that it
may deem necessary or desirable in respect of this Agreement and the rights and
duties of the parties to this Agreement and the interests of the Noteholders and
the Residual Interestholder under this Agreement, the interests of the
Noteholders under the Indenture and the interests of the Residual Interestholder
under the Trust Agreement.
SECTION 6.4 Servicer Indemnification of the Trust, the Indenture Trustee
and the Owner Trustee.
(a) The Servicer out of its own funds shall indemnify, defend and hold
harmless the Trust, for the benefit of the Residual Interestholder, the
Beneficiaries, the Owners Trustee and the Indenture Trustee, and their
respective officers, directors, employees and agents, from and against any taxes
that may at any time be asserted against any such Person with respect to the
transactions contemplated in this Agreement, including, without limitation, any
sales, gross receipts, general corporation, tangible personal property,
privilege or license taxes (but not including any taxes asserted with respect
to, or arising out of, (i) the sale of any Eligible Receivables to the Trust
hereunder, (ii) the issuance and original sale of any Notes, (iii) ownership or
sale of any Eligible Receivables in the Accounts in the Pool of Accounts or the
Notes, (iv) distributions or the receipt of payment on the Notes or the Residual
Interest or (v) any fees or other compensation payable to any such Person) and
costs and expenses in defending against the same.
(b) The Servicer out of its own funds shall indemnify and hold harmless
the Trust, for the benefit of the Residual Interestholder and the Beneficiaries,
the Owner Trustee and the Indenture Trustee, and their respective officers,
directors, employees and agents, from and against any loss, liability, expense,
damage or injury suffered or sustained by reason of any acts, omissions or
alleged acts or omissions arising out of activities of the Servicer pursuant to
this Agreement; provided, however, that the Servicer shall not indemnify if such
acts, omissions or alleged acts or omissions constitute fraud, gross negligence,
breach of contract, breach of fiduciary duty or willful misconduct by the Owner
Trustee or the Indenture Trustee; and provided further that the Servicer shall
not indemnify for any liabilities, cost or expense of the Trust with respect to
any action taken by the Owner Trustee at the request of the Residual
Interestholder or any Beneficiaries to the extent the Owner Trustee is fully
indemnified by such Residual Interestholder or Beneficiaries with respect to
such action.
(c) The Servicer out of its own funds shall indemnify, defend and hold
harmless the Indenture Trustee and the Owner Trustee, and their respective
officers, directors, employees and agents, from and against any loss, liability,
expense, damage or injury arising out of or incurred in connection with (x) in
the case of the Indenture Trustee, the Indenture Trustee's performance of its
duties under the Indenture, (y) in the case of the Owner Trustee, the Owner
Trustee's
27
performance of its duties under the Trust Agreement or (z) the acceptance,
administration or performance by, or action or inaction of, the Indenture
Trustee or the Owner Trustee, as applicable, of the trusts and duties contained
in the Basic Documents, except in each case to the extent that such cost,
expense, loss, claim, damage or liability: (A) is due to the willful
misfeasance, fraud, bad faith, breach of contract or negligence (except for
reasonable errors in judgment) of the Person seeking to be indemnified, (B) to
the extent otherwise payable to the Indenture Trustee, arises from the Indenture
Trustee's breach of any of its representations or warranties in Section 6.13 of
the Indenture, (C) to the extent otherwise payable to the Owner Trustee, arises
from the Owner Trustee's breach of any of its representations or warranties set
forth in Section 6.6 of the Trust Agreement or (D) shall arise out of or be
incurred in connection with the performance by the Indenture Trustee of the
duties of successor Servicer hereunder.
(d) Indemnification under this Section 6.4 shall include, without
limitation, any judgment, award, settlement, reasonable attorneys' fees and
expenses and other costs or expenses as incurred in connection with the defense
of any actual or threatened action, proceeding or claim; provided, however, that
if the Servicer has made any indemnity payments pursuant to this Section 6.4 and
the recipient thereafter collects any of such amounts from others, the recipient
shall promptly repay such amounts collected to the Servicer, without interest.
(e) Any indemnification under this Section 6.4 shall survive the
termination of this Agreement and the resignation and removal of the Owner
Trustee or the Indenture Trustee.
SECTION 6.5 The Servicer Not to Resign. The Servicer shall not resign from
the obligations and duties hereby imposed on it except (a) upon determination
that (i) the performance of its duties hereunder is no longer permissible under
applicable law and (ii) there is no reasonable action which the Servicer could
take to make the performance of its duties hereunder permissible under
applicable law or (b) the Rating Agency Condition is satisfied with respect
thereto. Any such determination permitting the resignation of the Servicer shall
be evidenced as to clause (a) above by an Opinion of Counsel to such effect
delivered to the Owner Trustee and the Indenture Trustee. No such resignation
shall become effective until the Indenture Trustee or a Successor Servicer shall
have assumed the responsibilities and obligations of the Servicer in accordance
with Section 7.2 hereof. If the Indenture Trustee is unable within 120 days of
the date of such determination to appoint a Successor Servicer, the Indenture
Trustee shall serve as Successor Servicer hereunder.
SECTION 6.6 Access to the Documentation and Information Regarding the
Receivables. The Servicer shall provide to the Owner Trustee and the Indenture
Trustee access to any and all documentation regarding the Accounts and the
Receivables in such cases where the Owner Trustee and the Indenture Trustee are
required in connection with the enforcement of the rights of the Noteholders,
the Residual Interestholder, or by applicable statutes or regulations to review
such documentation, such access being afforded without charge but only (a) upon
reasonable request, (b) during normal business hours, (c) subject to the
Servicer's normal security and confidentiality procedures and (d) at offices
designated by the Servicer. Nothing in this Section 6.6 shall derogate from the
obligation of the Transferor, the Owner Trustee, the Indenture Trustee or the
Servicer to observe any applicable law prohibiting disclosure of information
regarding the Dealers and the failure of the Servicer to provide access as
provided in this Section 6.6 as a result of such obligation shall not constitute
a breach of this Section 6.6.
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SECTION 6.7 Delegation of Duties. The Servicer may, at any time without
notice or consent, delegate (i) any or all duties under this Agreement to any
Person more than 50% of the voting securities of which are owned, directly or
indirectly, by Volkswagen AG or any successor thereto, or (ii) specific duties
to sub-contractors who are in the business of performing such duties; provided,
however, that no such delegation shall relieve the Servicer of its
responsibility with respect to such duties and the Servicer shall remain
obligated and liable for servicing and administering the Receivables in
accordance with this Agreement as if the Servicer alone were performing such
duties
SECTION 6.8 Examination of Records. The Transferor and the Servicer shall
indicate generally in its computer files or other records that the Receivables
arising in the Accounts have been conveyed to the Trust pursuant to this
Agreement for the benefit of the Residual Interestholder and the Beneficiaries.
The Transferor and the Servicer shall, prior to the sale or transfer to a third
party of any receivable held in its custody, examine its computer and other
records to determine that such receivable is not a Receivable.
ARTICLE VII
SERVICING DEFAULTS
SECTION 7.1 Servicing Defaults. Any of the following events shall
constitute a "Servicing Default":
(a) failure by the Servicer to make any payment, transfer or deposit, or
to give instructions to the Owner Trustee or the Indenture Trustee to make any
payment, transfer or deposit or to give instructions to the Owner Trustee or the
Indenture Trustee as to any action to be taken under any Enhancement Agreement
on or before the date occurring five Business Days after the date such payment,
transfer or deposit or such instruction is required to be made or given, as the
case may be, under the terms of this Agreement;
(b) failure on the part of the Servicer duly to observe or to perform any
other covenants or agreements of the Servicer set forth in this Agreement which
failure has a material adverse effect on the Noteholders of any Series and which
continues unremedied for a period of 30 days after the date on which written
notice of such failure, requiring the same to be remedied, shall have been given
to the Servicer by the Indenture Trustee or Owner Trustee; or the Servicer shall
delegate its duties under this Agreement, except as permitted by Sections 3.1
and 6.7;
(c) any representation, warranty or certification made by the Servicer in
this Agreement or in any certificate delivered pursuant to this Agreement shall
prove to have been incorrect when made, which has a material adverse effect on
the rights of the Noteholders of any Series and the material adverse effect
continues for a period of 60 days after the date on which written notice
thereof, requiring the same to be remedied, shall have been given to the
Servicer by the Indenture Trustee or Owner Trustee; or
(d) the Servicer shall consent to the appointment of a conservator or
receiver or liquidator or other similar official in any bankruptcy, insolvency,
readjustment of debt, marshaling of assets and liabilities or similar
proceedings of or relating to the Servicer or of or
29
relating to all or substantially all of its property, or a decree or order of a
court or agency or supervisory authority having jurisdiction in the premises for
the appointment of a conservator or receiver or liquidator or other similar
official in any insolvency, readjustment of debt, marshaling of assets and
liabilities or similar proceedings, or for the winding-up or liquidation of its
affairs, shall have been entered against the Servicer and such decree or order
shall have remained in force undischarged or unstayed, or the Servicer shall
admit in writing its inability to pay its debts generally as they become due,
file a petition to take advantage of any applicable bankruptcy, insolvency or
reorganization statute, make any assignment for the benefit of its creditors or
voluntarily suspend payment of its obligations.
In the event any Servicing Default occurs, so long as the Servicing
Default shall not have been remedied, the Indenture Trustee, by notice then
given in writing to the Servicer (a "Termination Notice") with a copy to the
Owner Trustee, may terminate all but not less than all of the rights and
obligations (other than its obligations that have accrued up to the time of such
termination) of the Servicer as Servicer under this Agreement and in and to the
Receivables and the proceeds thereof. After receipt by the Servicer of a
Termination Notice, and on the date that a Successor Servicer shall have been
appointed by the Indenture Trustee pursuant to Section 7.2, all authority and
power of the Servicer under this Agreement shall pass to and be vested in a
Successor Servicer (a "Servicing Transfer") and, without limitation, the
Indenture Trustee is hereby authorized and empowered (upon the failure of the
Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as
attorney-in-fact or otherwise, all documents and other instruments upon the
failure of the Servicer to execute or deliver such documents or instruments, and
to do and accomplish all other acts or things necessary or appropriate to effect
the purposes of such Servicing Transfer. The Servicer agrees to cooperate with
the Indenture Trustee and such Successor Servicer in effecting the termination
of the responsibilities and rights of the Servicer to conduct servicing
hereunder, including the transfer to such Successor Servicer of all authority of
the Servicer to service the Receivables provided for under this Agreement,
including all authority over all Collections which shall on the date of transfer
be held by the Servicer for deposit, or which have been deposited by the
Servicer, in the Collection Account, or which shall thereafter be received with
respect to the Receivables, and in assisting the Successor Servicer. The
Servicer shall promptly transfer its electronic records relating to the
Receivables to the Successor Servicer in such electronic form as the Successor
Servicer may reasonably request and shall promptly transfer to the Successor
Servicer all other records, correspondence and documents necessary for the
continued servicing of the Receivables in the manner and at such times as the
Successor Servicer shall reasonably request. To the extent that compliance with
this Section 7.1 shall require the Servicer to disclose to the Successor
Servicer information of any kind which the Servicer reasonably deems to be
confidential, the Successor Servicer shall be required to enter into such
customary licensing and confidentiality agreements as the Servicer shall deem
necessary to protect its interest.
Notwithstanding the foregoing, a delay in or failure of performance under
Section 7.1(a) for a period of 10 Business Days or under Section 7.1(b) or (c)
for a period of 60 Business Days, shall not constitute a Servicing Default if
such delay or failure could not be prevented by the exercise of reasonable
diligence by the Servicer and such delay or failure was caused by an act of God
or the public enemy, acts of declared or undeclared war, vandalism, public
disorder, rebellion or sabotage, accidents, epidemics, landslides, lightning,
fire, hurricanes, earthquakes, floods, strikes, labor disputes, mechanical
breakdown, shortages or delays in obtaining parts or
30
suitable equipment, material, labor or transportation, acts of subcontractors,
interruption of utility services, acts of any unit of governmental agency, or
other similar or dissimilar occurrences. The preceding sentence shall not
relieve the Servicer from using its best efforts to perform its obligations in a
timely manner in accordance with the terms of this Agreement and the Servicer
shall provide the Owner Trustee, Indenture Trustee, any Agents, the Residual
Interestholder, the Rating Agencies, any Enhancement Providers, the Transferor
and the Noteholders with an Officers' Certificate giving prompt notice of such
failure or delay by it, together with a description of its efforts so to perform
its obligations. The Servicer shall immediately notify the Owner Trustee in
writing of any Servicing Default.
SECTION 7.2 Indenture Trustee to Act; Appointment of Successor.
(a) On and after the receipt by the Servicer of a Termination Notice
pursuant to Section 7.1, the Servicer shall continue to perform all servicing
functions under this Agreement until the date specified in the Termination
Notice or otherwise specified by the Indenture Trustee in writing or, if no such
date is specified in such Termination Notice, or otherwise specified by the
Indenture Trustee, until a date mutually agreed upon by the Servicer and the
Indenture Trustee. The Indenture Trustee shall as promptly as possible after the
giving of a Termination Notice appoint an Eligible Servicer as a successor
Servicer (the "Successor Servicer"), subject to the consent of any Enhancement
Providers and any Agents, which consent shall not be unreasonably withheld, and
such Successor Servicer shall accept its appointment by a written assumption in
a form acceptable to the Indenture Trustee. In the event that a Successor
Servicer has not been appointed or has not accepted its appointment at the time
when the Servicer ceases to act as Servicer, the Indenture Trustee without
further action shall automatically be appointed the Successor Servicer. The
Indenture Trustee may delegate any of its servicing obligations to an affiliate
or agent in accordance with Sections 3.1 and 6.7. Notwithstanding the above, the
Indenture Trustee shall, if it is legally unable so to act, petition a court of
competent jurisdiction to appoint any established institution having a net worth
of not less than $100,000,000 and whose regular business includes the servicing
of wholesale receivables as the Successor Servicer hereunder. The Indenture
Trustee shall immediately give notice to the Owner Trustee, the Rating Agencies,
any Enhancement Providers, any Agents, the Residual Interestholder and the
Noteholders upon the appointment of a Successor Servicer. Notwithstanding
anything herein or in the Indenture to the contrary, in no event shall the
Indenture Trustee be liable for any Servicing Fee or for any differential in the
amount of the Servicing Fee paid hereunder and the amount necessary to induce
any Successor Servicer to act as Successor Servicer under this Agreement and the
transactions contemplated hereby.
(b) Upon its appointment, the Successor Servicer shall be the successor in
all respects to the Servicer with respect to servicing functions under this
Agreement and shall be subject to all the responsibilities, duties and
liabilities relating thereto placed on the Servicer by the terms and provisions
hereof (except that the Successor Servicer shall not be liable for any
liabilities incurred by the predecessor Servicer), and all references in this
Agreement to the Servicer shall be deemed to refer to the Successor Servicer.
Any Successor Servicer, by its acceptance of its appointment, will automatically
agree to be bound by the terms and provisions of any Enhancement Agreement.
31
(c) In connection with any Termination Notice, the Indenture Trustee will
review any bids which it obtains from Eligible Servicers and shall be permitted
to appoint any Eligible Servicer submitting such a bid as a Successor Servicer
for servicing compensation not in excess of the Servicing Fee (provided that if
all such bids exceed the Servicing Fee the Residual Interestholder at its own
expense shall pay when due the amount of any compensation in excess of the
Servicing Fee); provided, however, that the Residual Interestholder shall be
responsible for payment of the Residual Interestholder's portion of the
Servicing Fee as determined pursuant to this Agreement and all other amounts in
excess of the Investors' Servicing Fee, and that no such monthly compensation
paid out of Collections shall be in excess of the Investors' Servicing Fee
permitted to the Servicer. The Residual Interestholder agrees that if VCI (or
any Successor Servicer) is terminated as Servicer hereunder, the portion of
Collections to be paid to the Residual Interestholder shall be reduced by an
amount sufficient to pay the Residual Interestholder's share of the compensation
of the Successor Servicer.
(d) All authority and power granted to the Successor Servicer under this
Agreement shall automatically cease and terminate upon termination of the Trust
pursuant to Section 7.1 of the Trust Agreement, and shall pass to and be vested
in the Transferor and, without limitation, the Transferor is hereby authorized
and empowered to execute and deliver, on behalf of the Successor Servicer, as
attorney-in-fact or otherwise, all documents and other instruments, and to do
and accomplish all other acts or things necessary or appropriate to effect the
purposes of such transfer of servicing rights. The Successor Servicer agrees to
cooperate with the Transferor in effecting the termination of the
responsibilities and rights of the Successor Servicer to conduct servicing on
the Receivables. The Successor Servicer shall transfer its electronic records
relating to the Receivables to the Transferor in such electronic form as the
Transferor may reasonably request and shall transfer all other records,
correspondence and documents to the Transferor in the manner and at such times
as the Transferor shall reasonably request in writing. To the extent that
compliance with this Section 7.2(d) shall require the Successor Servicer to
disclose to the Transferor information of any kind which the Successor Servicer
deems to be confidential, the Transferor shall be required to enter into such
customary licensing and confidentiality agreements as the Successor Servicer
shall deem necessary to protect its interests.
SECTION 7.3 Notification to Noteholders and Residual Interestholder. Upon
any termination of, or appointment of a successor to, the Servicer pursuant to
this Article VII, the Indenture Trustee shall give prompt written notice thereof
to the Noteholders and the Rating Agencies and the Owner Trustee shall give
prompt written notice thereof to the Residual Interestholder.
SECTION 7.4 Waiver of Past Defaults. Noteholders whose Notes evidence not
less than a majority of the Outstanding Amount of the Notes as of the close of
the preceding Payment Date (or, if all of the Notes have been paid in full and
the Indenture has been discharged in accordance with its terms, the Residual
Interestholder) voting as a single class, may, on behalf of all Noteholders,
waive any default by the Servicer in the performance of its obligations
hereunder and under the Receivables Purchase Agreement and its consequences,
except a Servicing Default under Section 7.1(a) of this Agreement. Upon any such
waiver of a past default, such default shall cease to exist, and any Servicing
Default arising therefrom shall be deemed to have been remedied for every
purpose of this Agreement and the Receivables
32
Purchase Agreement. No such waiver shall extend to any subsequent or other
default or impair any right consequent thereon.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
SECTION 8.1 Amendment.
(a) Any term or provision of this Agreement may be amended by the
Transferor without the consent of the Servicer, the Indenture Trustee, any
Noteholder, the Issuer, any Enhancement Provider or the Owner Trustee; provided
that (i) any amendment that materially and adversely affects the interests of
the Noteholders shall require the consent of Noteholders evidencing not less
than a majority of the aggregate outstanding principal amount of the Notes of
each Outstanding Series, voting as a single class, and (ii) any amendment that
materially and adversely affects the interests of the Residual Interestholder,
the Indenture Trustee, any Enhancement Provider, the Issuer, the Servicer or the
Owner Trustee shall require the prior written consent of the Persons whose
interests are materially and adversely affected. An amendment shall be deemed
not to materially and adversely affect the interests of the Noteholders of any
Outstanding Series of Notes if the Rating Agency Condition is satisfied with
respect to such amendment. The consent of the Issuer, the Servicer, the Residual
Interestholder, any Enhancement Provider, the Indenture Trustee or the Owner
Trustee shall be deemed to have been given if the Servicer does not receive a
written objection from such Person within 10 Business Days after a written
request for such consent shall have been given.
(b) Notwithstanding the foregoing, no amendment shall (i) reduce the
interest rate or principal amount of any Notes of any Outstanding Series, or
delay the expected principal payment date of any Notes of any Outstanding Series
without the consent of the Holder of such Note, or (ii) reduce the percentage of
the aggregate outstanding principal amount of the Notes of any Outstanding
Series, the Holders of which are required to consent to any matter without the
consent of the Holders of at least the percentage of the aggregate outstanding
principal amount of the Notes of such Outstanding Series which were required to
consent to such matter before giving effect to such amendment.
(c) Notwithstanding anything herein to the contrary, any term or provision
of this Agreement may be amended by the Transferor without the consent of any of
the Noteholders, the Issuer, the Servicer or any other Person to add, modify or
eliminate any provisions as may be necessary or advisable in order to comply
with or obtain more favorable treatment under or with respect to any law or
regulation or any accounting rule or principle (whether now or in the future in
effect); it being a condition to any such amendment that the Rating Agency
Condition shall have been satisfied.
(d) It shall not be necessary for the consent of any Person pursuant to
this Section for such Person to approve the particular form of any proposed
amendment, but it shall be sufficient if such Person consents to the substance
thereof.
33
(e) Prior to the execution of any amendment to this Agreement, the
Transferor shall provide each Rating Agency with written notice of the substance
of such amendment. No later than 10 Business Days after the execution of any
amendment to this Agreement, the Transferor shall furnish a copy of such
amendment to each Rating Agency, the Issuer, the Owner Trustee, any Enhancement
Provider and the Indenture Trustee.
Prior to the execution of any amendment to this Agreement, 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 8.2 No Petition Covenant. The Servicer, VCI (if it is no longer
the Servicer) and the Trust, by entering into this Agreement, each Noteholder,
by accepting a Note, the Residual Interestholder, any Successor Servicer and the
Indenture Trustee, by accepting the benefits of this Agreement, hereby covenants
and agrees that they will not at any time institute against VDF any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or other
proceedings under any United States federal or state bankruptcy or similar law.
SECTION 8.3 CHOICE OF LAW. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO THE PRINCIPLES OF
CONFLICTS OF LAW THEREOF OR OF ANY OTHER JURISDICTION, OTHER THAN SECTION 5-1401
OF THE NEW YORK GENERAL OBLIGATIONS LAW, AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.
SECTION 8.4 Notices. All demands, notices and communications upon or to
the Servicer, the Transferor, the Administrator, the Indenture Trustee, the
Trust or the Rating Agencies or the Residual Interestholder or Noteholder under
this Agreement shall be delivered as specified in Appendix B to this Agreement.
SECTION 8.5 Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall for any
reason whatsoever be held invalid, then such covenants, agreements, provisions
or terms shall be deemed enforceable to the fullest extent permitted, and if not
so permitted, shall be deemed severable from the remaining covenants,
agreements, provisions or terms of this Agreement and shall in no way affect the
validity or enforceability of the other provisions of this Agreement or of the
Notes or rights of the Noteholders.
SECTION 8.6 Assignment. Notwithstanding anything to the contrary contained
herein, except as provided in Section 6.2, this Agreement may not be assigned by
the Servicer.
SECTION 8.7 Further Assurances. The Transferor and the Servicer agree to
do and perform, from time to time, any and all acts and to execute any and all
further instruments required or reasonably requested by the Trust more fully to
effect the purposes of this Agreement, including the execution of any financing
statements or continuation statements
34
relating to the Receivables for filing under the provisions of the UCC of any
applicable jurisdiction.
SECTION 8.8 No Waiver; Cumulative Remedies. No failure to exercise and no
delay in exercising, on the part of the Trust or the Noteholders, any right,
remedy, power or privilege under this Agreement shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, remedy, power or
privilege under this Agreement preclude any other or further exercise thereof or
the exercise of any other right, remedy, power or privilege. The rights,
remedies, powers and privileges provided under this Agreement are cumulative and
not exhaustive of any rights, remedies, powers and privileges provided by law.
SECTION 8.9 Counterparts. This Agreement may be executed in two or more
counterparts (and by different parties on separate counterparts), each of which
shall be an original, but all of which together shall constitute one and the
same instrument.
SECTION 8.10 Third-Party Beneficiaries. This Agreement will inure to the
benefit of and be binding upon the parties hereto, the Indenture Trustee, the
Owner Trustee, the Noteholders, the Residual Interestholder, the Enhancement
Providers and their respective successors and permitted assigns. Except as
otherwise expressly provided in this Agreement, no other Person will have any
right or obligation hereunder.
SECTION 8.11 Action by Owner Trustee. Upon any application or request by
the Transferor or Servicer to the Owner Trustee to take any action under any
provision under this Agreement, the Transferor or Servicer, as the case may be,
shall furnish to the Owner Trustee an Officer's Certificate stating that all
conditions precedent, if any, provided for in this Agreement relating to the
proposed action have been complied with. The Owner Trustee shall be entitled to
conclusively rely on the Officer's Certificate as authority for any action
undertaken in connection therewith.
SECTION 8.12 Merger and Integration. Except as specifically stated
otherwise herein, this Agreement sets forth the entire understanding of the
parties relating to the subject matter hereof, and all prior understandings,
written or oral, are superseded by this Agreement. This Agreement may not be
modified, amended, waived, or supplemented except as provided herein.
SECTION 8.13 Headings. The headings herein are for purposes of reference
only and shall not otherwise affect the meaning or interpretation or any
provision hereof.
SECTION 8.14 No Recourse. The Residual Interestholder acknowledges that
the Residual Interest represents an undivided ownership interest in the Trust
only and does not represent interests in or obligations of the Transferor, the
Servicer, the Administrator, the Owner Trustee, the Indenture Trustee or any
Affiliate thereof and no recourse, either directly or indirectly, may be had
against such parties or their assets, except as may be expressly set forth or
contemplated in this Agreement or the Basic Documents.
SECTION 8.15 Submission to Jurisdiction. Each of the parties hereto hereby
irrevocably and unconditionally:
35
(a) submits for itself and its property in any legal action or proceeding
relating to this Agreement, any documents executed and delivered in connection
herewith or for recognition and enforcement of any judgment in respect thereof,
to the non-exclusive general jurisdiction of the courts of the State of New
York, the courts of the United States of America for the Southern District of
New York, and appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought in such
courts and waives any objection that it may now or hereafter have to the venue
of such action or proceeding in any such court or that such action or proceeding
was brought in an inconvenient court and agrees not to plead or claim the same;
(c) agrees that service of process in any such action or proceeding may be
effected by mailing a copy thereof by registered or certified mail (or any
substantially similar form of mail), postage prepaid, to such Person at its
address determined in accordance with Appendix B to 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 xxx in
any other jurisdiction.
* * * *
36
IN WITNESS WHEREOF, the Transferor, the Servicer and the Trust have caused
this Trust Sale and Servicing Agreement to be duly executed by their respective
officers as of the day and year first above written.
VW CREDIT, INC.,
as Servicer
By: ____________________________________
Name:
Title:
By:
VOLKSWAGEN DEALER FINANCE, LLC,
as Transferor
By: ____________________________________
Name:
Title:
By: ____________________________________
Name:
Title:
VOLKSWAGEN CREDIT AUTO MASTER OWNER
TRUST
By: The Bank of New York, not in its
individual capacity, but solely as Owner
Trustee
By: ____________________________________
Name:
Title:
Acknowledged and Accepted:
JPMORGAN CHASE BANK, N.A., not in
its individual capacity, but solely as
Indenture Trustee
By:
Name:
Title:
37
APPENDIX A
PART I - DEFINITIONS
Whenever used in this Agreement, the following words and phrases shall
have the following meanings:
"Account" shall mean each Initial Account and, from and after the related
Addition Date, each Additional Account. The term "Account" shall not apply to
any Removed Accounts reassigned or assigned to the Transferor or the Servicer in
accordance with the terms of the Trust Sale and Servicing Agreement.
"Accumulation Period" shall mean, with respect to any Series of Notes, the
period specified in the related Series Supplement, if any.
"Act" shall mean an Act as specified in Section 11.3(a) of the Indenture.
"Addition Date" shall mean, with respect to Additional Accounts, the date
from and after which such Additional Accounts are to be included as Accounts
pursuant to Section 2.5 of the Trust Sale and Servicing Agreement.
"Addition Notice" shall have the meaning specified in Section 2.5(a) of
the Trust Sale and Servicing Agreement.
"Additional Accounts" shall mean each individual wholesale financing
account established with a Dealer pursuant to a Floorplan Financing Agreement,
which account is designated pursuant to Section 2.5 of the Trust Sale and
Servicing Agreement to be included as an Account designated to the Trust and is
identified in the computer file or microfiche or written list (which may be in
electronic form) delivered to the Owner Trustee by the Transferor pursuant to
Sections 2.1 and 2.5(a) (ii) of the Trust Sale and Servicing Agreement.
"Additional Cut-Off Date" shall mean, with respect to Additional Accounts,
the day specified in the Addition Notice delivered with respect to such
Additional Accounts pursuant to Section 2.5(a) of the Trust Sale and Servicing
Agreement.
"Adjustment Payment" shall have the meaning specified in Section 3.9(a) of
the Trust Sale and Servicing Agreement.
"Administration Agreement" shall mean that certain Amended and Restated
Administration Agreement, dated as of , 200 _ , among VCI, as Administrator, the
Issuer and the Indenture Trustee, as amended and supplemented from time to time.
"Administrator" shall mean VCI or any successor Administrator under the
Administration Agreement.
38
"Advance Date" shall have the meaning, if any, specified in the related
Series Supplement.
"Affiliate" shall mean, with respect to any specified Person, any other
Person controlling or controlled by or under common control with such specified
Person. For the purposes of this definition, "control" when used with respect to
any specified Person means the power to direct the management and policies of
such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Agency Office" shall mean the office of the Issuer maintained pursuant to
Section 3.2 of the Indenture.
"Agent" shall mean, with respect to any Series, the Person so designated
in the related Series Supplement.
"Amortization Period" shall have, with respect to any Series, the meaning
specified in the related Series Supplement.
"Assignment" shall have the meaning specified in Section 2.5(a) (iii) of
the Trust Sale and Servicing Agreement.
"Authorized Officer" shall mean with respect to the Issuer, any officer of
the Owner Trustee who is authorized to act for the Owner Trustee in matters
relating to the Issuer and who is identified on the list of Authorized Officers
delivered by the Owner Trustee to the Indenture Trustee on the Initial Closing
Date (as such list may be modified or supplemented from time to time thereafter)
and, so long as the Administration Agreement is in effect, any Vice President or
other officer of the Administrator who is authorized to act for the
Administrator in matters relating to the Issuer and to be acted upon by the
Administrator pursuant to the Administration Agreement and who is identified on
the list of Authorized Officers delivered by the Administrator to the Indenture
Trustee on the Initial Closing Date (as such list may be modified or
supplemented from time to time thereafter). With respect to any other Person,
any Vice President or other officer of such Person who is authorized to act for
such Person with respect to such matters.
"Automatic Additional Accounts" shall have the meaning specified in
Section 2.5(b) of the Trust Sale and Servicing Agreement.
"Available Subordinated Amount" shall mean, with respect to any Series at
any time of determination, an amount equal to the available subordinated amount
specified in the related Series Supplement at such time.
"Bankruptcy Event" means, for any Person, that such Person makes a general
assignment for the benefit of creditors or any proceeding is instituted by or
against such Person seeking to adjudicate it bankrupt or insolvent, or seeking
the liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief or composition of it or its debts under any law relating to
bankruptcy, insolvency or reorganization or relief of debtors, or seeking the
entry of an order for relief or the appointment of a receiver, trustee or other
similar official for it or any
39
substantial part of its property and, in the case of any proceeding instituted
against such Person, such proceeding remains unstayed for more than 90 days.
"Bankruptcy Remote Party" means each of the Transferor and the Issuer.
"Basic Documents" shall mean the Trust Agreement, the Receivables Purchase
Agreement, the Trust Sale and Servicing Agreement, each Depository Agreement,
the Administration Agreement, the Indenture (including all Series Supplements),
the Enhancement Agreements and the other documents and certificates delivered in
connection therewith from time to time.
"Beneficiary" shall mean any of the Holders of the Notes and any
Enhancement Provider.
"Benefit Plan" shall mean any one of (a) an employee benefit plan (as
described in Section 3(3) of ERISA) that is subject to the provisions of Title I
of ERISA, (b) a plan described in Section 4975(e)(1) of the Code or (c) any
entity whose underlying assets include plan assets by reason of a plan's
investment in such entity.
"Book-Entry Note" shall mean Notes in which ownership and transfers shall
be made through book entries by a Clearing Agency as described in Section 2.10
of the Indenture.
"Business Day" shall mean any day other than (a) a Saturday or a Sunday or
(b) another day on which banking institutions or trust companies in the State of
Michigan, the State of New York or the State of Illinois are authorized or
obligated by law, executive order or governmental decree to be closed.
"Cash Management Accounts" shall mean the deposit accounts maintained by
VCI for the benefit of Dealers.
"Class" shall mean, with respect to any Series, any one of the Classes of
Notes of that Series.
"Clearing Agency" shall mean an organization registered as a "clearing
agency" pursuant to Section 17A of the Exchange Act. The Clearing Agency for the
Notes shall be The Depository Trust Company.
"Clearing Agency Participant" shall mean a securities broker, dealer,
bank, trust company, clearing corporation or other financial institution or
other Person for whom from time to time a Clearing Agency effects book entry
transfers and pledges of securities deposited with the Clearing Agency.
"Clearstream" shall mean Clearstream Banking, societe anonyme.
"Closing Date" shall mean, with respect to any Series, the Closing Date
specified in the related Series Supplement, including the Initial Closing Date.
"Code" shall mean the Internal Revenue Code of 1986 as amended, and the
Treasury Regulations promulgated thereunder.
40
"Collateral" shall mean the collateral specified in the granting clause of
the Indenture.
"Collateral Security" shall mean, with respect to any Receivable and
subject to the terms of the Receivables Purchase Agreement, (i) the security
interest granted by or on behalf of the related Dealer granted to secure payment
of such Receivable, including a security interest in the related Vehicle,
specified parts inventory, equipment, fixtures, service accounts of the Dealers
and, in some cases, realty securing payment the Receivable and/or (ii) personal
guarantees securing such Receivable.
"Collection Account" shall have the meaning specified in Section 4.1(a) of
the Trust Sale and Servicing Agreement.
"Collection Period" shall mean, with respect to any Payment Date, the
calendar month preceding the month in which such Payment Date occurs.
"Collections" shall mean, without duplication, all payments by or on
behalf of Dealers in respect of the Receivables, in the form of cash, checks,
wire transfers or any other form of payment; and shall include, without
duplication, (i) the amount of any Rebate Payments deposited by the Servicer
into the Collection Account (such amounts being deemed Non-Principal
Collections), and (ii) all other Non-Principal Collections and Principal
Collections.
"Common Collateral" shall have the meaning specified in Article VII of the
Receivables Purchase Agreement.
"Common Non-Vehicle Collateral" shall have the meaning specified in
Article VII of the Receivables Purchase Agreement.
"Common Vehicle Collateral" shall have the meaning specified in Article
VII of the Receivables Purchase Agreement.
"Controlled Amortization Period" shall mean, with respect to any Series of
Notes, the period specified in the related Series Supplement, if any.
"Controlling Class" shall mean, with respect to a Series of Notes, (a) if
there is only one class of Notes in that Series, all Notes of that Series and
(b) if there is more than one class of Notes in that Series, the class or
classes with the highest rating.
"Conveyed Receivables" shall have the meaning specified in Section 2.1 of
the Trust Sale and Servicing Agreement.
"Corporate Trust Office" shall mean with respect to the Indenture Trustee
or the Owner Trustee, the principal office at which at any particular time the
corporate trust business of the Indenture Trustee or Owner Trustee,
respectively, shall be administered, which offices at the Initial Closing Date
are located:
in the case of the Indenture Trustee, at:
JPMorgan Chase Bank, N.A.
41
4 New York Plaza, 6th Floor
New York, New York 10004
Attention: [Global Corporate Trust Services]
and in the case of the Owner Trustee, at:
The Bank of New York
000 Xxxxxxx Xxxxxx-00X
Xxx Xxxx, Xxx Xxxx 00000
Attention: Asset Backed Securities Department
"Customary Servicing Practices" means the customary practices of the
Servicer with respect to Vehicles and Receivables, as such practices may be
amended from time to time.
"Cut-Off Date" shall mean the Initial Cut-Off Date and any Additional
Cut-Off Date, as applicable.
"Date of Processing" shall mean, with respect to any transaction, the date
on which such transaction is first recorded on the Servicer's computer file of
accounts (without regard to the effective date of such recordation).
"Dealer" shall mean a Person engaged generally in the business of
purchasing Vehicles from a manufacturer or distributor thereof and holding such
Vehicles for sale or lease in the ordinary course of business, and which has an
Account the Receivables of which have been transferred to the Trust.
"Dealer Groups" means any Dealer or group of affiliated Dealers (as
determined in accordance with the Servicer's standard procedures for identifying
and tracking Accounts of affiliated Dealers).
"Dealer Overconcentration" shall mean on any Determination Date, with
respect to any Dealer Group, the excess of (a) the aggregate Principal
Receivables included in all Accounts of such Dealer Group as of the last day of
the immediately preceding Collection Period over (b) % of the Pool Balance
(excluding the amount on deposit in the Excess Funding Account, if any) on the
last day of such immediately preceding Collection Period.
"Defaulted Account" shall mean an Account in which there are Defaulted
Receivables.
"Defaulted Amount" for any Collection Period shall mean an amount (which
shall not be less than zero) equal to the excess, if any, of:
(a) the Principal Receivables that became Defaulted Receivables
during the preceding Collection Period
over
(b) the full amount of any Defaulted Receivables subject to
reassignment to the Transferor or purchase by the Servicer for such
Collection
42
Period unless an Insolvency Event occurs for either of the
Transferor or the Servicer, in which event the Defaulted Amount will
not be reduced for those Defaulted Receivables.
"Defaulted Receivables" shall mean, on any Determination Date, (a) all
Receivables which were charged off as uncollectible in respect of the
immediately preceding Collection Period in accordance with the Servicer's
customary and usual servicing procedures for servicing Dealer floorplan
receivables comparable to the Receivables which have not been sold to third
parties and (b) all Receivables which were Eligible Receivables when transferred
to the Trust on the Initial Closing Date or the related Addition Date or on
their respective Transfer Date, which arose in an Account that thereafter became
an Ineligible Account and which remained outstanding for any six consecutive
Determination Dates (inclusive of the Determination Date on which such
determination is being made) after such Account became an Ineligible Account.
"Definitive Notes" shall mean the Notes issued pursuant to the Indenture
in definitive form either upon original issuance or upon termination of
book-entry registration with respect to such Notes pursuant to Section 2.12 of
the Indenture.
"Deposit Date" shall mean each day on which the Servicer deposits
Collections in the Collection Account pursuant to Section 4.2 of the Trust Sale
and Servicing Agreement.
"Depository" shall mean The Depository Trust Company, as initial
Depository, the nominee of which is CEDE & Co., or any other organization
registered as a "clearing agency" pursuant to Section 17A of the Securities
Exchange Act of 1934, as amended. The Depository shall at all times be a
"clearing corporation" as defined in Section 8-102(3) of the Uniform Commercial
Code of the State of New York.
"Depository Agreement" shall mean, with respect to any Series or Class,
the agreement among the Transferor, the Indenture Trustee and the initial
Depository, dated as of the related Closing Date.
"Depository Participant" shall mean a broker, dealer, bank or other
financial institution or other Person for whom from time to time a Depository
effects book-entry transfers and pledges of securities deposited with the
Depository.
"Designated Accounts" shall have the meaning specified in Section
2.7(b)(i) of the Trust Sale and Servicing Agreement.
"Designated Balance" shall have the meaning specified in Section
2.7(b)(ii) of the Trust Sale and Servicing Agreement.
"Determination Date" shall mean, with respect to any Payment Date, the day
that is two Business Days prior to such date.
"Early Amortization Event" shall have the meaning specified in Section
5.17 of the Indenture and, with respect to any Series or class, shall also mean
any Early Amortization Event specified in the related Series Supplement.
43
"Early Amortization Period" shall mean with respect to any Series, the
period specified as such in the related Series Supplement.
"Eligible Account" shall mean each individual wholesale financing
revolving line of credit extended by VCI to a Dealer pursuant to a Floorplan
Financing Agreement, which, as of the date of determination with respect
thereto: (a) is established by VCI in the ordinary course of business pursuant
to a Dealer financing agreement, (b) is in favor of a Dealer which is an
Eligible Dealer, (c) is in existence and maintained and serviced by VCI (or a
Successor Servicer) and (d) is an Account in respect of which no amounts have
been charged off as uncollectible.
"Eligible Dealer" shall mean a Dealer, as of the date of determination
thereof, (a) which is located in the United States of America (including its
territories and possessions), (b) which has not been identified by the Servicer
as being the subject of any voluntary or involuntary bankruptcy proceeding or
voluntary or involuntary liquidation, (c) in which VWOA or its affiliates do not
have an equity investment, and (d) which is not in "dealer default" as
determined by the Servicer under Floorplan Financing Guidelines.
"Eligible Deposit Account" shall mean either (a) a segregated account with
an Eligible Institution, or (b) a segregated trust account with the corporate
trust department of a depository institution organized under the laws of the
United States of America or any one of the states thereof, including the
District of Columbia (or any domestic branch of a foreign bank), having
corporate trust powers and acting as trustee for funds deposited in such
account, so long as any of the securities of such depository institution shall
have a credit rating from each Rating Agency in one of its generic rating
categories which signifies investment grade.
"Eligible Institution" shall mean (a) the corporate trust department of
the Indenture Trustee, or (b) a depository institution or trust company
organized under the laws of the United States of America or any one of the
states thereof, or the District of Columbia (or any domestic branch of a foreign
bank), which at all times (i) has either (A) a long-term unsecured debt rating
of Aa2 or better by Moody's and of AA- or better by Standard & Poor's or such
other rating that is acceptable to each Rating Agency, as evidenced by a letter
from such Rating Agency to the Indenture Trustee or (B) a certificate of deposit
rating of P-1 by Moody's and A-1+ by Standard & Poor's or such other rating that
is acceptable to each Rating Agency, as evidenced by a letter from such Rating
Agency to the Indenture Trustee and (ii) is a member of the FDIC.
"Eligible Investments" shall mean book-entry securities, negotiable
instruments or securities represented by instruments in bearer or registered
form generally having original or remaining maturities of 30 days or less, but
in no event occurring later than the Payment Date next occurring after the
Indenture Trustee acquires the investments, which evidence:
(a) direct obligations of, and obligations fully guaranteed as to
timely payment by, the United States of America;
(b) demand deposits, time deposits or certificates of deposit of any
depositary institution or trust company incorporated under the laws of the
United States of America or any state thereof, or the District of Columbia
(or any domestic branch of a foreign bank), and subject to supervision and
examination by Federal or state banking or
44
depository institution authorities; provided, however, that at the time of
the Trust's investment or contractual commitment to invest in the
investments, the commercial paper or other short-term unsecured debt
obligations (other than obligations the rating of which is based on the
credit of a person or entity other than the depository institution or
trust company) of the depository institution or trust company must have a
credit rating from each of the Rating Agencies in the highest investment
category granted by the Rating Agencies;
(c) commercial paper having, at the time of the Trust's investments
or contractual commitment to invest in the investments, a rating from each
of the Rating Agencies in the highest investment category granted by the
Rating Agencies;
(d) investments in money market funds having a rating from each of
the Rating Agencies in the highest investment category granted by the
Rating Agencies or otherwise approved in writing by the Rating Agencies;
(e) bankers' acceptances issued by any depository institution or
trust company referred to in clause (b) above;
(f) repurchase obligations with respect to any security that is a
direct obligation of, or fully guaranteed by, the United States of America
or any agency or instrumentality thereof the obligations of which are
backed by the full faith and credit of the United States of America, in
either case entered into with a depository institution or trust company
(acting as a principal) described in clause (b) above; and
any other investment consisting of a financial asset that by its terms
converts into cash within a finite period of time, if each Rating Agency shall
have notified the Transferor, the Servicer, the Indenture Trustee and the Owner
Trustee that the Trust's investment in the investment will not result in a
reduction or withdrawal of the rating of any outstanding Class or Series rated
by the Rating Agency.
"Eligible Receivable" shall mean each Receivable:
(a) which was originated or acquired by VCI or an Affiliate of VCI
in the ordinary course of business;
(b) which arose under an Account that at the time was an Eligible
Account;
(c) which is owned by VCI at the time of sale by VCI to the
Transferor;
(d) which represents the obligation of a Dealer to repay an advance
made to or on behalf of such Dealer to finance the acquisition of
Vehicles;
(e) which at the time of creation and at the time of transfer to the
Trust (except at the Initial Closing Date in the case of Receivables in
respect of which the related financed Vehicle has been sold), is secured
by, inter alia, a first priority perfected security interest in the
Vehicle relating thereto;
45
(f) which was created in compliance in all respects with all
Requirements of Law applicable thereto and pursuant to a Floorplan
Financing Agreement which complies in all respects with all Requirements
of Law applicable to any party thereto;
(g) with respect to which all material consents, licenses, approvals
or authorizations of, or registrations or declarations with, any
Governmental Authority required to be obtained, effected or given by VCI
or the Transferor in connection with the creation of such Receivable or
the transfer thereof to the Trust or the execution, delivery and
performance of the related Floorplan Financing Agreement pursuant to which
such Receivable was created, have been duly obtained, effected or given
and are in full force and effect;
(h) as to which at all times following the transfer of such
Receivable to the Trust, the Trust will have good and marketable title
thereto free and clear of all Liens arising prior to the transfer or
arising at any time other than Liens permitted by the Trust Sale and
Security Agreement;
(i) which has been the subject of a valid transfer and assignment
from the Transferor to the Trust of all the Transferor's right, title and
interest therein (including any proceeds thereof);
(j) which will at all times be the legal, valid, binding and
assignable payment obligation of the Dealer relating thereto, enforceable
against such Dealer in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws, now or hereafter in
effect, affecting the enforcement of creditors' rights in general and
except as such enforceability may be limited by general principles of
equity (whether considered in a suit at law or in equity);
(k) which at the time of transfer to the Trust is not subject to any
right of rescission, setoff, counterclaim or any other defense (including
defenses arising out of violations of usury laws) of the Dealer;
(l) as to which, at the time of transfer of such Receivable to the
Trust, VCI and the Transferor were not in breach of any of their
respective obligations with respect to such Receivable required to be
satisfied at such time;
(m) as to which, at the time of transfer of such Receivable to the
Trust, neither VCI nor the Transferor has taken or failed to take any
action which would impair the rights of the Trust or the Noteholders
therein;
(n) which constitutes an "instrument", "account", "chattel paper",
"payment intangible" or "general intangible" as defined in Article 9 of
the UCC as then in effect in the States of Delaware and New York; and
(o) which was transferred to the Trust with all applicable
governmental authorization; and
46
(p) which is payable in U.S. dollars.
"Eligible Servicer" shall mean the Trustee, VCI or an entity which, at the
time of its appointment as Servicer, (a) is legally qualified and has the
capacity to service the Accounts, (b) in the sole determination of the Indenture
Trustee, which determination shall be conclusive and binding, has demonstrated
the ability to professionally and competently service a portfolio of similar
accounts in accordance with high standards of skill and care and (c) is
qualified to use the software that is then currently being used to service the
Accounts or obtains the right to use or has its own software which is adequate
to perform its duties under this Agreement.
"Enhancement" shall mean the rights and benefits provided to the
Noteholders of any Series or class pursuant to any letter of credit, surety
bond, cash collateral account, reserve account, yield supplement account, spread
account, guaranteed rate agreement, maturity liquidity facility, tax protection
agreement, interest rate swap agreement or other arrangement issued for a Series
or Class. The subordination of any Series or class to any other Series or class
or of a portion of the Residual Interest to any Series or class shall be deemed
to be an Enhancement.
"Enhancement Agreement" shall mean any agreement, instrument or document
governing the terms of any Enhancement or pursuant to which any Enhancement is
issued or outstanding.
"Enhancement Provider" shall mean the Person providing any Enhancement,
other than the Residual Interestholder whose Residual Interest (or any portion
thereof) is subordinated to any Series or class of Notes.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended.
"Event of Default" shall mean an event described in Section 5.1 of the
Indenture.
"Excess Funding Account" shall mean the account designated as such,
established and maintained pursuant to Section 4.1(c) of the Trust Sale and
Servicing Agreement.
"Excess Principal Collections" shall mean, for any Collection Period, the
amount of Principal Collections allocable to each Series remaining after all
required payments of principal have been made for the related Payment Date to
the Principal Funding Account for such Series or to the Noteholders of such
Series or a Class of such Series.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended.
"Excluded Series" shall mean any Series of Notes so designated in the
applicable Series Supplement, if any.
"Executive Officer" shall mean, with respect to any corporation, the Chief
Executive Officer, Chief Operating Officer, Chief Financial Officer, President,
Executive Vice President, any Vice President, the Secretary, the Treasurer,
Assistant Secretary or Assistant Treasurer of such corporation; and with respect
to any partnership, any general partner thereof.
47
"FDIC" shall mean the Federal Deposit Insurance Corporation or any
successor entity thereto.
"Final Maturity Date" shall mean, with respect to any Series of Notes, the
date specified in any Series Supplement.
"Financing" means, collectively, (i) any financing transaction of any sort
undertaken by VCI or any Affiliate of VCI involving, directly or indirectly, the
Trust Assets, and (ii) any other asset securitization, synthetic lease,
sale-leaseback, secured loan or similar transaction involving the Trust Assets
or any beneficial interest therein or in the Trust.
"Floorplan Financing Agreement" shall mean, collectively, the group of
related agreements between VCI and the Dealer with respect thereto, pursuant to
which (a) VCI agrees to extend credit to such Dealer to finance used Vehicles
and new Vehicles manufactured by one of the manufacturers, (b) such Dealer
grants to VCI a security interest in the specific Vehicles financed by VCI,
certain other Vehicles, certain other collateral and the proceeds thereof, (c)
such Dealer agrees to repay advances made by VCI on demand, and (d) the
obligations of such Dealer to repay such advances is evidenced by one or more
promissory notes of such Dealer.
"Floorplan Financing Guidelines" shall mean the written policies and
procedures of VCI, as such policies and procedures may be amended from time to
time, (a) relating to the operation of a floorplan financing business, including
the written policies and procedures for determining the interest rate charged to
Dealers, the other terms and conditions relating to VCI's wholesale financing
accounts, the creditworthiness of Dealers and the extension of credit to
Dealers, and (b) relating to the maintenance of accounts and collection of
receivables.
"GAAP" shall mean generally accepted accounting principles in the United
States.
"Governmental Authority" shall mean the United States of America, any
state or other political subdivision, and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
"Holder" shall mean the Person in whose name a Note is registered on the
Note Register.
"Incremental Subordinated Amount" shall mean, with respect to any Series
at any time of determination, an amount equal to the incremental subordinated
amount specified in the related Series Supplement.
"Indenture" shall mean the Amended and Restated Indenture agreement
between the Trust and the Indenture Trustee, dated as of , 200 _ , as the same
may from time to time be amended, modified or otherwise supplemented.
"Indenture Trustee" shall mean JPMorgan Chase Bank, N.A., a national
banking association, not in its individual capacity but solely as trustee under
the Indenture, or any successor trustee under the Indenture.
"Independent" shall mean, when used with respect to any specified Person,
that the Person (a) is in fact independent of the Issuer, any other obligor upon
the Notes, the Transferor
48
and any Affiliate of any of the foregoing Persons, (b) does not have any direct
financial interest or any material indirect financial interest in the Issuer,
any such other obligor, the Transferor or any Affiliate of any of the foregoing
Persons and (c) is not connected with the Issuer, any such other obligor, the
Transferor or any Affiliate of any of the foregoing Persons as an officer,
employee, promoter, underwriter, trustee, partner, director or person performing
similar functions.
"Independent Certificate" shall mean a certificate or opinion to be
delivered to the Indenture Trustee under the circumstances described in, and
otherwise complying with, the applicable requirements of Section 11.1 of the
Indenture, made by an Independent appraiser or other expert appointed by an
Issuer Order and approved by the Indenture Trustee in the exercise of reasonable
care, and such opinion or certificate shall state that the signer has read the
definition of "Independent" and that the signer is Independent within the
meaning thereof.
"Ineligible Account" shall mean an Account that at the time of
determination is not an Eligible Account.
"Ineligible Amount" shall mean on any Determination Date, the amount of
Ineligible Receivables included in the Trust on the last day of the preceding
Collection Period pursuant to Section 2.9 of the Trust Sale and Servicing
Agreement.
"Ineligible Receivables" shall mean all Receivables that at the time of
determination are not Eligible Receivables that arise in Eligible Accounts.
"Initial Account" shall mean each individual wholesale financing account
established with a Dealer pursuant to a Floorplan Financing Agreement which is
identified in the computer file or microfiche or written list (which may be in
electronic form) delivered to the Owner Trustee on the Initial Closing Date by
the Transferor pursuant to Section 2.1 of the Trust Sale and Servicing
Agreement.
"Initial Closing Date" shall mean August 10, 2000.
"Initial Cut-Off Date" shall mean June 30, 2000.
"Initial Invested Amount" shall mean, with respect to any Series and for
any date, an amount equal to the initial invested amount specified in the
related Series Supplement. The Initial Invested Amount for any Series may be
increased or decreased from time to time as specified in the related Series
Supplement.
"Insolvency Event" shall mean any event specified in Section 5.17(b) or
(c) of the Indenture.
"Insolvency Laws" shall mean the Bankruptcy Code and any other applicable
federal or State bankruptcy, insolvency or other similar law.
"Insurance Proceeds" shall mean, with respect to an Account, any amounts
received by the Servicer pursuant to any policy of insurance which is required
to be paid to VCI pursuant to a Floorplan Financing Agreement.
49
"Internal Revenue Code" shall mean, the Internal Revenue Code of 1986, as
amended.
"Invested Amount" shall mean, with respect to any Series and for any date,
an amount equal to the invested amount specified in the related Series
Supplement. The Invested Amount for any Series may be increased or decreased
from time to time as specified in the related Series Supplement.
"Investment Company Act" shall mean the Investment Company Act of 1940, as
amended.
"Involuntary Case" shall have the meaning specified in Article VI of the
Receivables Purchase Agreement.
"Issuer" shall mean the party named as such in the Indenture until a
successor replaces it and, thereafter, the successor and, for purposes of any
provision contained herein and required by the TIA, each other obligor on the
Notes.
"Issuer Order and Issuer Request" shall mean a written order or request
signed in the name of the Issuer by any one of its Authorized Officers and
delivered to the Indenture Trustee.
"Lien" shall mean any mortgage, deed of trust, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or other),
preference, participation interest, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever, including any
conditional sale or other title retention agreement and any financing lease
having substantially the same economic effect as any of the foregoing.
"Miscellaneous Payments" shall mean, with respect to any Collection
Period, the sum of (a) Adjustment Payments and Transfer Deposit Amounts on
deposit in the Collection Account on the related Payment Date and (b)
Unallocated Principal Collections available to be treated as Miscellaneous
Payments pursuant to Section 4.3 on such Payment Date.
"Monthly Servicing Fee" shall mean, with respect to any, Series the amount
specified therefor in the related Series Supplement.
"Moody's" shall mean Xxxxx'x Investors Service, Inc., or its successor.
"Nonfloorplan Agreement" shall have the meaning specified in Article VII
of the Receivables Purchase Agreement.
"Non-Principal Collections" shall mean all Collections of interest,
including amounts recovered on Defaulted Receivables, Servicer Advances,
insurance proceeds and Rebate Payments, under the Receivables.
"Non-Principal Receivables" with respect to any Account shall mean all
amounts billed to the related Dealer in respect of interest and all other
non-principal charges, including service fees and handling fees.
50
"Note" shall mean any asset-backed Note executed by the Issuer by any of
its Authorized Officers and authenticated by the Indenture Trustee in the form
attached to the Series Supplement applicable to such Series of Notes.
"Note Depository" shall mean with respect to any Book-Entry Notes for
which Definitive Notes have not been issued, any depository selected from time
to time by the Indenture Trustee on behalf of the Trust in whose name a Series
of Notes is registered. The Note Depository shall be Cede & Co., the nominee of
the Clearing Agency for such Series.
"Note Depository Agreement" shall mean with respect to any Series of Notes
originally issued as Book-Entry Notes, the agreement, dated as of the Closing
Date for such Series, among the Issuer, the Indenture Trustee and the Clearing
Agency relating to such Notes, as the same may be amended and supplemented from
time to time.
"Note Distribution Account" shall mean the account designated as such,
established and maintained pursuant to Section 4.1(b) of the Trust Sale and
Servicing Agreement.
"Note Owner" shall mean, with respect to a Book-Entry Note, any person who
is a beneficial owner of a Book-Entry Note.
"Note Rate" shall mean, with respect to any Series or Class, the note rate
specified therefor in the related Series Supplement.
"Note Register" shall have the meaning specified in Section 2.4(a) of the
Indenture.
"Note Registrar" shall mean the registrar at any time of the Note
Register, appointed pursuant to Section 2.4 of the Indenture.
"Noteholder" shall mean any Holder of a Note.
"Noteholders' Monthly Servicing Fee" shall mean the portion of the
Servicing Fee allocable to the Noteholders pursuant to the terms of a Series
Supplement.
"Notice Date" shall have the meaning specified in Section 2.5(a) of the
Trust Sale and Servicing Agreement.
"Notice of Default" shall have the meaning set forth in Section 5.1(d) of
the Indenture.
"Officers' Certificate" shall mean (i) with respect to any corporation,
unless otherwise specified in this Agreement, a certificate signed by (a) the
Chairman of the Board, Vice Chairman of the Board, President or any Vice
President and (b) a Treasurer, Assistant Treasurer, Secretary or Assistant
Secretary of such corporation and (ii) with respect to any limited liability
company, unless otherwise specified in this Agreement, a certificate signed by
any manager of such limited liability company.
"Opinion of Counsel" shall mean a written opinion of counsel, who may,
except as otherwise expressly provided, be an employee of the Transferor, the
Servicer or VCI. In addition, for purposes of the Indenture: (a) such counsel
shall be satisfactory to the Indenture
51
Trustee, (b) the opinion shall be addressed to the Indenture Trustee as Trustee
and (c) the opinion shall comply with any applicable requirements of Section
11.1(a) of the Indenture and shall be in form and substance satisfactory to the
Indenture Trustee.
"Order" shall have the meaning specified in Article VI of the Receivables
Purchase Agreement.
"Out of Trust Account" means any Account as to which: (a) the Dealer has
either (i) received proceeds from the sale of the related Vehicle or (ii) no
longer owns, controls or has title to the Vehicle; and (b) the Dealer has not
paid or is unable to pay the full the amount of the related Receivable to VCI,
as Servicer, within three Business Days after VCI has made a demand for payment.
"Outstanding" shall mean, with respect to any Notes, as of any
Determination Date, all such Notes theretofore authenticated and delivered under
the Indenture except:
(a) Notes theretofore canceled by the Indenture Trustee or delivered
to the Indenture Trustee for cancellation;
(b) Notes or portions thereof the payment for which money in the
necessary amount has been theretofore deposited with the Indenture Trustee
or any Paying Agent in trust for the Holders of such Notes; provided,
however, that if such Notes are to be redeemed, notice of such redemption
has been duly given pursuant to the Indenture or provision therefore,
satisfactory to the Indenture Trustee, has been made; and
(c) Notes in exchange for or in lieu of other Notes which have been
authenticated and delivered pursuant to this Indenture unless proof
satisfactory to the Indenture Trustee is presented that any such Notes are
held by a bona fide purchaser; provided, however, that in determining
whether the Holders of the requisite Outstanding Amount of the Notes have
given any request, demand, authorization, direction, notice, consent or
waiver hereunder or under any Basic Document, Notes owned by the Issuer,
any other obligor upon the Notes, the Transferor or any Affiliate of any
of the foregoing Persons shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Indenture Trustee
shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Notes that the
Indenture Trustee knows to be so owned shall be so disregarded. Notes so
owned that have been pledged in good faith may be regarded as Outstanding
if the pledgee establishes to the satisfaction of the Indenture Trustee
the pledgor's right so to act with respect to such Notes and that the
pledgee is not the Issuer, any other obligor upon the Notes, the
Transferor or any Affiliate of any of the forgoing Persons.
"Outstanding Amount" shall mean, as of any date, with respect to any
Series of Notes, the aggregate principal amount of such Notes Outstanding at
such date.
"Overconcentration Amount" on any Determination Date shall mean, without
duplication, the aggregate Principal Receivables in the Trust on such
Determination Date that are Dealer Overconcentrations.
52
"Owner Trust Estate" shall mean all right, title and interest of the Trust
in and to the property and rights assigned to the Trust pursuant to Article II
of the Trust Sale and Servicing Agreement, all funds on deposit from time to
time in the Trust Accounts and the Residual Interest Distribution Account, the
Enhancement Agreements and all other property of the Trust from time to time,
including any rights of the Owner Trustee and the Trust pursuant to the Trust
Sale and Servicing Agreement and the Administration Agreement.
"Owner Trustee" shall mean The Bank of New York, a New York banking
corporation, or any successor trustee under the Trust Agreement.
"Pay Down Date" shall have the meaning, if any, specified in the related
Series Supplement.
"Paying Agent" shall mean with respect to the Indenture, the Indenture
Trustee or any other Person that meets the eligibility standards for the
Indenture Trustee specified in Section 6.11 of the Indenture and is authorized
by the Issuer to make the payments to and distributions from the Collection
Account and the Note Distribution Account, including payment of principal of or
interest on the Notes on behalf of the Issuer. With respect to the Trust
Agreement, any paying agent or co-paying agent appointed pursuant to Section 3.3
of the Trust Agreement that meets the eligibility standards for the Owner
Trustee specified in Section 6.13 of the Trust Agreement.
"Payment Date" shall mean the day of each month or, if such day is not a
Business Day, the next succeeding Business Day.
"Payment Date Statement" shall mean, with respect to any Series, a report
prepared by the Servicer on each Determination Date for the immediately
preceding Collection Period setting forth the information contemplated by
Section 3.4 of the Trust Sale and Servicing Agreement.
"Person" shall mean any legal person, including any individual,
corporation, partnership, limited liability company, association, joint-stock
company, trust, unincorporated organization, governmental entity or other entity
of similar nature.
"Pool Balance" shall mean, as of the time of determination thereof, the
sum of (a) the aggregate amount of Principal Receivables in the Trust at the
time of determination, plus (b) the amount on deposit in the Excess Funding
Account and the Principal Funding Account, if any, at the time of determination.
"Predecessor Note" shall mean with respect to any particular Note, every
previous Note evidencing all or a portion of the same debt as that evidenced by
such particular Note; and, for the purpose of this definition, any Note
authenticated and delivered under Section 2.5 of the Indenture in lieu of a
mutilated, lost, destroyed or stolen Note.
"Principal Collections" shall mean Collections of principal under the
Receivables.
"Principal Funding Account" shall mean, with respect to any Series of
Notes, the account so specified in the related Series Supplement.
53
"Principal Receivables" with respect to an Account shall mean amounts
shown on the Servicer's records as Receivables (other than such amounts which
represent Non-Principal Receivables) payable by the related Dealer.
Notwithstanding anything to the contrary in the Trust Sale and Servicing
Agreement, the amount of Principal Receivables on any date of determination for
all purposes of the Basic Documents shall be deemed to be the actual amount
thereof at such time minus the aggregate amount on deposit in the Cash
Management Accounts maintained for the benefit of the related Dealers.
"Principal Shortfalls" shall mean, for any Collection Period, with respect
to any Series of Notes the amounts specified in the related Series Supplement,
if any.
"Principal Terms" shall mean, with respect to any Series: (a) the name or
designation; (b) the initial principal amount (or method for calculating such
amount); (c) the Note Rate (or method for the determination thereof); (d) the
payment date or dates and the date or dates from which interest shall accrue;
(e) the method for allocating principal and interest to Noteholders; (f) the
designation of any Series Accounts and the terms governing the operation of such
Series Accounts; (g) the Monthly Servicing Fee and the Noteholders' Monthly
Servicing Fee; (h) the issuer and terms of any form of Enhancement with respect
thereto; (i) the terms on which the Notes of such Series may be exchanged for
Notes of another Series, repurchased by the Transferor or remarketed to other
investors; (j) the Termination Date or other final payment date; (k) the number
of Classes of Notes of such Series and, if more than one Class, the rights and
priorities of each such Class; (l) the extent to which the Notes of such Series
will be issuable in temporary or global form (and, in such case, the depository
for such global note or notes, the terms or conditions, if any, upon which such
global note or notes may be exchanged, in whole or in part, for Definitive
Notes, and the manner in which any interest payable on a temporary or global
note will be paid); (m) whether the Notes of such Series may be issued in bearer
form and any limitations imposed thereon; (n) the priority of such Series with
respect to any other Series; (o) whether such Series will be part of a group,
and (p) any other terms of such Series.
"Proceeding" shall mean any suit in equity, action at law or other
judicial or administrative proceeding.
"Purchase Price" shall mean, with respect to any Receivable for any date
on which such Receivable is to be purchased pursuant to Section 3.3(c) of the
Trust Sale and Servicing Agreement or Section 2.3(c) of the Receivables Purchase
Agreement, as applicable, (a) an amount equal to the amount payable by the
Dealer in respect thereof as reflected in the records of the Servicer as of the
date of purchase plus, without duplication, (b) interest accrued from the end of
the last Collection Period until the day such Receivable is purchased in respect
of which interest on such Receivable was billed by the Servicer, at a per annum
rate equal to the per annum rate borne by such Receivable, based on the actual
number of days elapsed over a year of 360 days.
"Rated Securities" shall mean each class of Notes which has been rated by
a Rating Agency at the request of the Transferor.
54
"Rating Agency" shall mean, with respect to any outstanding Series or
Class, each statistical rating agency selected by the Transferor to rate the
Notes of such Series or Class, unless otherwise specified in the Series
Supplement.
"Rating Agency Condition" shall mean, with respect to any action, that
each Rating Agency shall have notified the Transferor, the Servicer, the Owner
Trustee and the Indenture Trustee in writing that such action will not result in
a reduction or withdrawal of the rating of any outstanding Series or class with
respect to which it is a Rating Agency, unless otherwise specified in the Series
Supplement.
"Reassignment" shall have the meaning specified in Section 2.7(b) of the
Trust Sale and Servicing Agreement.
"Rebate Payment" shall have the meaning specified in Section 3.9(c) of the
Trust Sale and Servicing Agreement.
"Receivables" shall mean, with respect to an Account, all amounts shown on
the Servicer's records as amounts payable by the related Dealer from time to
time in respect of advances made by VCI to such Dealer to finance the
acquisition of Vehicles by such Dealer, together with the group of writings
evidencing such amounts and the security interest created in connection
therewith. Receivables which become Defaulted Receivables shall not be shown on
the Servicer's records as amounts payable (and will cease to be included as
Receivables) on the day on which they become Defaulted Receivables. Receivables
which VCI is unable to transfer to the Transferor pursuant to the Receivables
Purchase Agreement or which the Transferor is unable to transfer to the Trust
pursuant to the Trust Sale and Servicing Agreement and Receivables which arise
in Designated Accounts from and after the related Removal Commencement Date
shall not be included in calculating the amount of Receivables.
"Receivables Purchase Agreement" shall mean the Amended and Restated
Receivables Purchase Agreement between VCI and the Transferor, dated as of ,
200_ , governing the terms and conditions upon which the Transferor acquired the
initial Receivables transferred to the Trust on the Initial Closing Date and all
Receivables acquired thereafter, as the same may from time to time be amended,
modified or otherwise supplemented.
"Record Date", with respect to a Series, shall have the meaning specified
in the related Series Supplement.
"Recoveries" on any Determination Date shall mean all amounts received,
including Insurance Proceeds, by the Servicer during the Collection Period
immediately preceding such Determination Date with respect to Receivables which
have previously become Defaulted Receivables.
"Redemption Date" The date specified as such by the Issuer as described in
Sections 10.1 and 10.2 of the Indenture.
"Redemption Price" The price specified in the applicable Series
Supplement.
55
"Removal Commencement Date" shall have the meaning specified in Section
2.7(b)(i) of the Trust Sale and Servicing Agreement.
"Removal and Reassignment Date" shall have the meaning specified in
Section 2.8(c)(i) of the Trust Sale and Servicing Agreement.
"Removal Date" shall have the meaning specified in Section 2.7(b) (iii) of
the Trust Sale and Servicing Agreement.
"Removed Account" shall have the meaning specified in Section 2.7(b) of
the Trust Sale and Servicing Agreement.
"Removed Accounts and Receivables" shall have the meaning specified in
Section 2.8(b) of the Trust Sale and Servicing Agreement.
"Required Participation Amount" shall mean, with respect to any Series, at
any time of determination, an amount equal to the sum of (a) the product of the
Required Participation Percentage for such Series by the Initial Invested Amount
for such Series at such time, plus (b) the Available Subordinated Amount for
such Series on the immediately preceding Determination Date (after giving effect
to the allocations, distributions, withdrawals and deposits to be made on the
Payment Date following such Determination Date).
"Required Participation Percentage" shall mean, with respect to any
Series, the percentage specified therefor in the related Series Supplement.
"Required Rating" shall mean a rating on commercial paper or other short
term unsecured debt obligations of Prime-1 by Moody's so long as Xxxxx'x is a
Rating Agency and A-1 by Standard & Poor's so long as Standard & Poor's is a
Rating Agency; and any requirement that deposits or debt obligations have the
"Required Rating" shall mean that such deposits or debt obligations have the
foregoing required ratings from Moody's and Standard & Poor's.
"Requirements of Law" for any Person shall mean the certificate of
incorporation and by-laws or other organizational or governing documents of such
Person, and any law, treaty, rule or regulation, or determination of an
arbitrator or Governmental Authority, in each case applicable to or binding upon
such Person or to which such Person is subject, whether federal, state or local
(including usury laws and the federal Truth in Lending Act).
"Removal Commencement Date" shall have the meaning specified in Section
2.7(b)(i) of the Trust Sale and Servicing Agreement.
"Removal Notice" shall have the meaning specified in Section 2.7(b)(i) of
the Trust Sale and Servicing Agreement.
"Reserve Account" shall mean the account designated as such and
established and maintained pursuant to a Series Supplement.
"Reset Date" shall mean the last day of a Collection Period.
56
"Residual Interest" shall mean the beneficial undivided ownership interest
in the Trust.
"Residual Interest Distribution Account" shall mean the account designated
as such, established and maintained pursuant to Section 5.1(a) of the Trust
Agreement.
"Residual Interestholder" shall mean the Transferor in its capacity as
owner of the Residual Interest.
"Residual Participation Amount" shall mean, at any time of determination,
an amount equal to the excess, if any, of (i) the Pool Balance (excluding the
amount on deposit in the Excess Funding Account, if any) at the time of
determination, over (ii) the aggregate Invested Amounts of all Series then
outstanding determined as specified in the applicable Series Supplement.
"Responsible Officer" shall mean, with respect to the Indenture Trustee or
the Owner Trustee, any officer within the Corporate Trust Office (or any
successor group of the Indenture Trustee or Owner Trustee), including any
managing director, vice president, assistant vice president, secretary,
assistant secretary, vice president or any other officer of the Indenture
Trustee customarily performing functions similar to those performed by any of
the above designated officers and also, with respect to a particular matter, any
other officer to whom such matter is referred because of such officer's
knowledge of and familiarity with the particular subject.
"Revolving Period" shall mean with respect to any Series, the period
specified as such in the related Series Supplement.
"Xxxxxxxx-Xxxxx Act" means the Xxxxxxxx-Xxxxx Act of 2002, as amended.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Series" shall mean any series of Notes so designated in the Series
Supplement.
"Series Account" shall mean any deposit, trust, escrow, reserve or similar
account maintained for the benefit of the Noteholders of any Series or class, as
specified in any Series Supplement.
"Series Adjusted Invested Amount" shall mean, with respect to any
outstanding Series for any Collection Period, the sum of (a) the Initial
Invested Amount of the Notes of such Series on the Determination Date occurring
in such Collection Period (after giving effect to changes therein to be made on
the following Payment Date under the applicable Series Supplement) minus the
excess, if any, of (i) the aggregate amount of all receivables charge-offs for
such Series for all Payment Dates preceding the Determination Date occurring in
such Collection Period, over (ii) the aggregate amount of all reimbursements of
such receivables charge-offs for such Series for all Payment Dates preceding the
Determination Date occurring in such Collection Period, and (b) the Available
Subordinated Amount, if any, for such Series on the Determination Date occurring
in such Collection Period (after giving effect to the allocations,
distributions, withdrawals and deposits to be made on the Payment Date following
such Determination Date under the applicable Series Supplement).
57
"Series Cut-Off Date", with respect to any Series, shall have the meaning
specified in the related Series Supplement.
"Series Issuance Date" shall mean, with respect to any Series, the date on
which the Notes of such Series are to be originally issued in accordance with
the Indenture and the related Series Supplement.
"Series Supplement" shall mean, with respect to any Series, a supplement
to the Indenture, executed and delivered in connection with the original
issuance of the Notes of such Series pursuant to Section 2.1 of the Indenture,
and all amendments thereof and supplements thereto.
"Servicer" shall mean, initially, VCI, in its capacity as Servicer under
the Trust Sale and Servicing Agreement, and after any Servicing Transfer, the
Successor Servicer.
"Servicing Default" shall have the meaning specified in Section 7.1 of the
Trust Sale and Servicing Agreement.
"Servicing Fee" shall have the meaning specified in Section 3.2 of the
Trust Sale and Servicing Agreement.
"Servicing Fee Rate" shall be the rate set forth in the applicable Series
Supplement.
"Servicing Officer" shall mean any officer of the Servicer involved in, or
responsible for, the administration and servicing of the Receivables whose name
appears on a list of servicing officers furnished to the Indenture Trustee by
the Servicer as such list may from time to time be amended.
"Servicing Transfer" shall have the meaning specified in Section 7.1 of
the Trust Sale and Servicing Agreement.
"Standard & Poor's" shall mean Standard & Poor's Rating Services, a
division of the XxXxxx-Xxxx Companies, Inc. or its successor.
"Successor Servicer" shall have the meaning specified in Section 7.2 of
the Trust Sale and Servicing Agreement.
"Tax Opinion" shall mean, with respect to any action, an Opinion of
Counsel to the effect that, for U.S. federal income tax purposes (a) such action
will not cause a taxable event with respect to any Noteholders and (b) in the
case of Section 2.14 of the Indenture, the Notes of the new Series will be
characterized as debt or an interest in a tax partnership (which partnership
will not be treated as a result of issuance of such Notes as a "publicly traded
partnership" within the meaning of Section 7704 of the Code and applicable
Treasury Regulations).
"Termination Date" shall mean, with respect to any Series, the date on
which such Series terminates under its Series Supplement, which shall be the
termination date specified in such Series Supplement.
58
"Termination Notice" shall have the meaning specified in Section 7.1 of
the Trust Sale and Servicing Agreement.
"Temporary Notes" shall mean the Notes specified in Section 2.3 of the
Indenture.
"Transfer Date" shall have the meaning specified in Section 2.1 of the
Trust Sale and Servicing Agreement.
"Transfer Deposit Amount" shall mean, with respect to any Receivable
reassigned or assigned to the Transferor or the Servicer, as applicable,
pursuant to Section 2.4(c) or Section 3.3(c) of the Trust Sale and Servicing
Agreement, the amounts specified in such Sections.
"Transferor" shall mean Volkswagen Dealer Finance, LLC, a Delaware limited
liability company.
"Trust" shall mean the Volkswagen Credit Auto Master Owner Trust, a
Delaware statutory trust, the corpus of which shall consist of the Trust Assets.
"Trust Accounts" shall mean the Collection Account, the Note Distribution
Account, the Excess Funding Account, and any other account so designated in a
Series Supplement, collectively.
"Trust Adjusted Invested Amount" shall mean, at any time of determination,
the sum of the Series Adjusted Invested Amounts for all outstanding series at
such time.
"Trust Agreement" shall mean the amended and restated trust agreement
between the Transferor and the Owner Trustee, dated as , 200 _ , as the
same may from time to time be amended, modified or otherwise supplemented.
"Trust Assets" shall have the meaning specified in Section 2.1 of the
Trust Sale and Servicing Agreement.
"Trust Available Subordinated Amount" shall mean, at any time of
determination, the sum of the Available Subordinated Amounts, if any, for all
outstanding Series at such time.
"Trust Estate" shall mean all money, instruments, rights and other
property that are subject or intended to be subject to the lien and security
interest of the Indenture for the benefit of the Noteholders and (only to the
extent expressly provided in the Indenture) the Residual Interestholder
(including, without limitation, the Collateral described in the Granting Clause
of the Indenture), including the proceeds thereof, and any other property and
interests that are pledged to the Indenture Trustee for the benefit of
Beneficiaries pursuant to a supplement to the Trust Sale and Servicing Agreement
or otherwise.
"Trust Indenture Act or TIA" shall mean the Trust Indenture Act of 1939,
as amended.
"Trust Required Participation Amount" shall mean, at any time of
determination, an amount equal to the sum of the Required Participation Amounts
for all Series.
59
"Trust Sale and Servicing Agreement" shall mean the Amended and Restated
Trust Sale and Servicing Agreement, dated as of , 200 _ between the Servicer,
the Transferor and the Trust, as amended and supplemented from time to time.
"Trust Termination Date" shall have the meaning specified in Section 7.1
of the Trust Agreement.
"UCC" shall mean the Uniform Commercial Code, as amended from time to
time, as in effect in the State of New York and Delaware.
"Unallocated Principal Collections" shall have the meaning specified in
Section 4.3 of the Trust Sale and Servicing Agreement.
"Unregistered Note" shall mean any Note that has not been registered under
the Securities Act and is subject to the provisions of Section 2.15 of the
Indenture.
"Used Vehicle" shall mean any Vehicle held for sale by a Dealer that is
determined to be a "used" Vehicle in accordance with the Servicer's standard
wholesale servicing practices.
"VCI" shall mean VW Credit, Inc., a Delaware corporation, and its
successors in interest.
"VDF" shall mean Volkswagen Dealer Finance, LLC, a Delaware limited
liability company.
"VDF Subordinated Note" shall mean the Subordinated Note dated August 10,
2000 made by the Transferor in favor of VCI.
"Vehicle" shall mean an automobile or light-duty truck.
"VW Credit" shall mean VW Credit, Inc., a Delaware corporation, and its
successors in interest.
"VWOA" shall mean Volkswagen of America, Inc., a New Jersey corporation.
60
APPENDIX A
PART II - RULES OF CONSTRUCTION
(A) Accounting Terms. As used in this Appendix or the Basic Documents,
accounting terms which are not defined, and accounting terms partly defined,
herein or therein shall have the respective meanings given to them under
generally accepted accounting principles. To the extent that the definitions of
accounting terms in this Appendix or the Basic Documents are inconsistent with
the meanings of such terms under generally accepted accounting principles, the
definitions contained in this Appendix or the Basic Documents will control.
(B)"Hereof," etc. The words "hereof,"__________" "___________"herein"
and "hereunder" and words of similar import when used in this Appendix or any
Basic Document will refer to this Appendix or such Basic Document as a whole and
not to any particular provision of this Appendix or such Basic Document; and
Section, Schedule and Exhibit references contained in this Appendix or any Basic
Document are references to Sections, Schedules and Exhibits in or to this
Appendix or such Basic Document unless otherwise specified. The word "or" is not
exclusive.
(C) Reference to Distribution Dates. With respect to any Distribution
Date, the "related Collection Period," and the "related Record Date," will mean
the Collection Period and Record Date, respectively, immediately preceding such
Distribution Date, and the relationships among Collection Periods and Record
Dates will be correlative to the foregoing relationships.
(D) Number and Gender. Each defined term used in this Appendix or the
Basic Documents has a comparable meaning when used in its plural or singular
form. Each gender-specific term used in this Appendix or the Basic Documents has
a comparable meaning whether used in a masculine, feminine or gender-neutral
form.
(E) Including. Whenever the term "including" (whether or not that term is
followed by the phrase "but not limited to" or "without limitation" or words of
similar effect) is used in this Appendix or the Basic Documents in connection
with a listing of items within a particular classification, that listing will be
interpreted to be illustrative only and will not be interpreted as a limitation
on, or exclusive listing of, the items within that classification.
61
APPENDIX B
NOTICE ADDRESSES AND PROCEDURES
All requests, demands, directions, consents, waivers, notices,
authorizations and communications provided or permitted under any Basic Document
to be made upon, given or furnished to or filed with the Transferor, the
Servicer, the Administrator, the Indenture Trustee, the Issuer, the Owner
Trustee or the Rating Agencies shall be in writing, personally delivered, sent
by facsimile with a copy to follow via first class mail, overnight mail or
mailed by certified mail-return receipt requested, and shall be deemed to have
been duly given upon receipt:
(A) in the case of the Transferor, at the following address:
VOLKSWAGEN DEALER FINANCE, LLC
0000 Xxxxxx Xxxx
Xxxxxx Xxxxx, Xxxxxxxx 00000
Attn: Secretary
(B) in the case of the Servicer or the Administrator, at the following
address:
VW Credit, Inc
0000 Xxxxxx Xxxx
Xxxxxx Xxxxx, Xxxxxxxx 00000
Attn: Secretary
(C) in the case of the Indenture Trustee, at its Corporate Trust Office,
(D) in the case of the Issuer or the Owner Trustee, to the Owner Trustee
at its Corporate Trust Office,
The Bank of New York
000 Xxxxxxx Xxxxxx-00X
Xxx Xxxx, Xxx Xxxx 00000
Attn: Asset Backed Securities Department
with a copy to:
VW Credit, Inc
0000 Xxxxxx Xxxx
Xxxxxx Xxxxx, Xxxxxxxx 00000
Attn: Secretary
The Issuer shall promptly transmit any notice received by it from the
Noteholders to the Indenture Trustee and the Indenture Trustee shall likewise
promptly transmit any notice received by it from the Noteholders to the Issuer.
62
(E) in the case of Xxxxx'x Investors Service, Inc., to:
Xxxxx'x Investors Service, Inc.
ABS Monitoring Department
00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
(F) in the case of Standard & Poor's Ratings Services, to:
Standard & Poor's Ratings Services
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Asset Backed Surveillance Department
or at such other address as shall be designated by such Person in a
written notice to the other parties to this Agreement.
Where any Basic Document provides for notice to Noteholders of any
condition or event, such notice shall be sufficiently given (unless otherwise
herein expressly provided) if it is in writing and mailed, first-class, postage
prepaid or by overnight mail to each Noteholder affected by such condition or
event, at such Person's address as it appears on the Note Register not later
than the latest date, and not earlier than the earliest date, prescribed in such
Basic Document for the giving of such notice. If notice to Noteholders is given
by mail, neither the failure to mail such notice nor any defect in any notice so
mailed to any particular Noteholders shall affect the sufficiency of such notice
with respect to other Noteholders, and any notice that is mailed in the manner
herein provided shall conclusively be presumed to have been duly given
regardless of whether such notice is in fact actually received.
63
APPENDIX C
[Perfection Representations and Warranties to be inserted]
64
EXHIBIT A
FORM OF ASSIGNMENT OF RECEIVABLES IN ADDITIONAL ACCOUNTS
(As required by Section 2.5(a)(iii) of the Trust Sale and Servicing Agreement).
ASSIGNMENT No. ___ OF RECEIVABLES IN ADDITIONAL ACCOUNTS dated as of
_________, among VOLKSWAGEN DEALER FINANCE, LLC ("VDF"), as transferor,
VOLKSWAGEN CREDIT AUTO MASTER OWNER TRUST (the "Trust"), as buyer, and VW
CREDIT, INC., as servicer (the "Servicer") pursuant to the Trust Sale and
Servicing Agreement referred to below.
WITNESSETH:
WHEREAS, the Servicer, VDF and the Trust are parties to an Amended and
Restated Trust Sale and Servicing Agreement dated as of , 200 _ (as
amended or supplemented, the "Trust Sale and Servicing Agreement"):
WHEREAS, pursuant to the Trust Sale and Servicing Agreement, VDF wishes to
designate Additional Accounts to be included as Accounts and to convey the
Receivables and Collateral Security of such Additional Accounts, whether now
existing or hereafter created, to the Trust as part of the corpus of the Trust
(as each such term is defined in the Trust Sale and Servicing Agreement); and
WHEREAS the Trust is willing to accept such designation and conveyance
subject to the terms and conditions hereof;
NOW, THEREFORE, VDF, the Trust and the Servicer hereby agree as follows:
1. Defined Terms. All capitalized terms used herein shall have the
meanings ascribed to them in Appendix A of the Trust Sale and Servicing
Agreement unless otherwise defined herein. "Addition Date" shall mean, with
respect to the Additional Accounts designated hereby, __________, _____.
2. Designation of Additional Accounts. VDF hereby delivers herewith a
computer file or microfiche or written list (which may be in electronic form)
containing a true and complete list of all such Additional Accounts specifying
for each such Account, as of the Additional Cut-Off Date, its account number,
the aggregate amount of Receivables outstanding in such Account and the
aggregate amount of Principal Receivables in such Account. Such file or list
shall, as of the date of this Assignment, supplement Schedule 1 to the Trust
Sale and Servicing Agreement.
3. Conveyance of Receivables.
(a) VDF does hereby sell, transfer, assign, set over and otherwise convey,
without recourse (except as expressly provided in the Trust Sale and Servicing
Agreement), to the Trust for the benefit of the Noteholders and the Residual
Interestholder and any Enhancement
65
Providers, on the Addition Date all of its right, title and interest in, to and
under the Receivables in such Additional Accounts and all Collateral Security
with respect thereto, owned by VDF and existing at the close of business on the
Additional Cut-Off Date and thereafter created from time to time, all monies due
or to become due and all amounts received with respect thereto and all proceeds
of all of the foregoing (including "proceeds" as defined in Section 9-102 of the
UCC) and Recoveries thereof. The foregoing sale, transfer, assignment, set-over
and conveyance does not constitute and is not intended to result in the creation
or an assumption by the Trust, the Owner Trustee, the Indenture Trustee, any
Agent of any Beneficiary of any obligation of the Servicer, VDF, VCI or any
other Person in connection with the Accounts, the Receivables or under any
agreement or instrument relating thereto, including any obligation to any
Dealers.
(b) In connection with such sale, VDF agrees to record and file, at its
own expense, a financing statement on form UCC-1 (and continuation statements
when applicable) with respect to the Receivables now existing and hereafter
created for the sale of chattel paper, payment intangibles, general intangibles
or accounts (as defined in Sections 9-102 of the UCC as in effect in any state
where either VDF or Servicer is "located" for purposes of Section 9-301 of the
UCC) meeting the requirements of applicable state law in such manner and in such
jurisdictions as are necessary to perfect the sale and assignment of the
Receivables and the Collateral Security to the Trust, and to deliver a
file-stamped copy of such financing statements or other evidence of such filing
to the Trust on or prior to the Addition Date. In addition, VDF shall cause to
be timely filed in the appropriate filing office any form UCC-1 financing
statement and continuation statement necessary to perfect any sale of
Receivables to the Trust. The Trust shall be under no obligation whatsoever to
file such financing statement, or a continuation statement to such financing
statement, or to make any other filing under the UCC in connection with such
sale. The parties hereto intend that the sales of Receivables effected by this
Agreement be sales.
(c) In connection with such sale, VDF further agrees, at its own expense,
on or prior to the Addition Date, to indicate in its computer files that the
Receivables created in connection with the Additional Accounts designated hereby
have been sold and the Collateral Security assigned to the Trust pursuant to
this Assignment for the benefit of the Noteholder, the Residual Interestholder
and any Enhancement Providers. In addition, in connection with such sales, VDF
shall deliver within __ days after the Addition Date to the Owner Trustee all
documents constituting "instruments" (as defined in the UCC) with such
endorsements attached as the Trust may reasonably require.
4. Acceptance by the Trust. Subject to the satisfaction of the conditions
set forth in Section 5 of this Assignment, the Trust hereby acknowledges its
acceptance of all right, title and interest to the property, now existing and
hereafter created, conveyed to the Trust pursuant to Section 3(a) of this
Assignment, and declares that it shall maintain such right, title and interest,
upon the trust herein set forth, for the benefit of the Noteholders, the
Residual Interestholder and any Enhancement Providers. The Trust further
acknowledges that, prior to or simultaneously with the execution and delivery of
this Assignment, VDF delivered to the Trust the computer file or microfiche or
written list (which may be in electronic form) relating to the Additional
Accounts described in Section 2 of this Assignment.
66
5. Conditions Precedent. The acceptance of the Trust set forth in Section
4 of this Assignment is subject to the satisfaction, on or prior to the Addition
Date, of the following conditions precedent:
(a) Representations and Warranties. Each of the representations and
warranties required to be made by VDF as of the Addition Date pursuant to the
Trust Sale and Servicing Agreement shall be true and correct as of the date of
this Assignment and as of the Addition Date;
(b) Agreement. Each of the conditions set forth in Section 2.5(a) of the
Trust Sale and Servicing Agreement (other than Section 2.5(a)(i)) in the case of
Automatic Additional Accounts designated by VDF pursuant to Section 2.5(b) of
the Trust Sale and Servicing Agreement) applicable to the designation of the
Additional Accounts to be designated hereby shall have been satisfied; and
(c) Additional Information. VDF shall have delivered to the Trust such
information as was reasonably requested by the Trust to satisfy itself as to the
accuracy of the representation and warranty set forth in Section 5(b)(i) of the
Trust Sale and Servicing Agreement.
6. Ratification of Agreement. As supplemented by this Assignment, the
Trust Sale and Servicing Agreement is in all respects ratified and confirmed and
the Trust Sale and Servicing Agreement as so supplemented by this Assignment
shall be read, taken and construed as one and the same instrument.
7. Counterparts. This Assignment may be executed in two or more
counterparts (and by different parties in separate counterparts),each of which
shall be an original but all of which together shall constitute one and the same
instrument.
8. CHOICE OF LAW. THIS ASSIGNMENT SHALL BE CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO THE PRINCIPLES OF
CONFLICTS OF LAW THEREOF OR OF ANY OTHER JURISDICTION, OTHER THAN SECTION 5-1401
OF THE NEW YORK GENERAL OBLIGATIONS LAW, AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.
* * * *
67
IN WITNESS WHEREOF, VDF, Trust and the Servicer have caused this
Assignment to be duly executed and delivered by their respective duly authorized
officers as of the day and the year first above written.
VOLKSWAGEN DEALER FINANCE, LLC,
as Transferor
By:_____________________________________
Name:
Title:
By:_____________________________________
Name:
Title:
VOLKSWAGEN CREDIT AUTO MASTER OWNER
TRUST
By: The Bank of New York, not in its
individual capacity, but solely as Owner
Trustee on behalf of the Trust
By:_____________________________________
Name:
Title:
VW CREDIT, INC.,
as Servicer
By:_____________________________________
Name:
Title:
By:_____________________________________
Name:
Title:
68
EXHIBIT B
FORM OF ANNUAL SERVICER'S CERTIFICATE
(As required to be delivered on or before (April 30) of each
calendar year beginning with April 30, 2001, pursuant to
Section 3.5 of the Trust Sale and Servicing Agreement)
VW CREDIT, INC.
VOLKSWAGEN CREDIT AUTO MASTER OWNER TRUST
The undersigned, duly authorized representatives of VW Credit,
Inc.("VCI"), as Servicer, pursuant to the Amended and Restated Trust Sale and
Servicing Agreement dated as of , 200 _ (as amended and supplemented, or
otherwise modified and in effect from time to time, the "Agreement"), by and
among VOLKSWAGEN DEALER AUTO FINANCE, LLC, as Transferor, VCI, as Servicer, and
VOLKSWAGEN CREDIT AUTO MASTER OWNER TRUST, as the Trust, do hereby certify that:
1. VCI is, as of the date hereof, the Servicer under the Agreement.
2. The undersigned are Servicing Officers and are duly authorized pursuant
to the Agreement to execute and deliver this Certificate to the Rating Agencies,
the Owner Trustee, the Indenture Trustee, any Agent and any Enhancement
providers.
3. A review of the activities of the Services during the calendar year
ended December 31, ____, and of its performance under the Agreement was
conducted under our supervision.
4. Based on such review, the Servicer has, to the best of our knowledge,
performed in all material respects all of its obligations under the Agreement
throughout such year and no default in the performance of such obligations has
occurred or is continuing except as set forth in paragraph 5 below.
5. The following is a description of each default in the performance of
the Servicer's obligations under the provisions of the Agreement known to us to
have been made by the Servicer during the year ended December 31, ____, which
sets forth in detail the (a) nature of each such default, (b) the action taken
by the Servicer, if any, to remedy each such default and (c) the current status
of each such default: (If applicable, insert "None.")
Capitalized terms used but not defined herein are used as defined in the
Agreement.
IN WITNESS WHEREOF, each of the undersigned has duly executed this
Certificate this ____ day of _________.
By:_____________________________________
Name:
Title:
By:_____________________________________
Name:
Title:
EXHIBIT C
FORM OF REASSIGNMENT OF RECEIVABLES
AND ACCOUNTS
(Pursuant to Section 2.7 of the Trust Sale and
Servicing Agreement referred to below)
REASSIGNMENT NO. _____ OF RECEIVABLES, dated as of __________, _____ (the
"Reassignment"), by and between Volkswagen Dealer Finance, LLC, a limited
liability company organized and existing under the laws of the State of Delaware
(the "Transferor"), and Volkswagen Credit Auto Master Owner Trust, a Delaware
statutory trust (the "Trust"), pursuant to the Trust Sale and Servicing
Agreement referred to below.
WITNESSETH:
WHEREAS, the Transferor and the Trust are parties to the Amended and
Restated Trust Sale and Servicing Agreement dated as of , 200 _ (hereinafter as
such agreement may have been, or may from time to time be, amended, supplemented
or otherwise modified, the "Trust Sale and Servicing Agreement");
WHEREAS, pursuant to the Trust Sale and Servicing Agreement, the Trust
wishes to reconvey to the Transferor certain of the Receivables and proceeds
thereof, whether now existing or hereafter created, from the Trust to the
Transferor pursuant to the terms of Section 2.7 of the Trust Sale and Servicing
Agreement (as each such term is defined in the Trust Sale and Servicing
Agreement);
WHEREAS, the Transferor is willing to accept the reconveyance of the
Receivables subject to the terms and conditions hereof;
NOW THEREFORE, the Transferor and the Trust hereby agree as follows:
1. Defined Terms. All terms defined in the Trust Sale and Servicing
Agreement and used herein shall have such defined meanings when used herein,
unless otherwise defined herein.
"Reassignment Date" shall mean __________ ___, ____.
2. Return of Lists of Accounts. The Trust shall deliver to the Transferor,
not later than three Business Days after the Reassignment Date, each and every
computer file or microfiche list or written list (which may be in electronic
form) of Accounts delivered to the Trust pursuant to the terms of the Trust Sale
and Servicing Agreement.
3. Conveyance of Receivables.
a. The Trust does hereby reconvey to the Transferor, without recourse, on
and after the Reassignment Date, all right, title and interest of the Trust in,
to and under certain Receivable and related Collateral Security now existing and
hereafter created in the Accounts (as identified
in the related Removal Notice), all monies due or to become due with respect
thereto, including all proceeds of all of the foregoing (as defined by the
appropriate UCC) of such Receivables.
b. In connection with such transfer, the Trust agrees to execute and
deliver to the Transferor on or prior to the date of this Reassignment, such UCC
termination statements as the Transferor may reasonably request, evidencing the
release by the Trust of its Lien on the Receivables.
4. Counterparts. This Reassignment may be executed in two or more
counterparts (and by different parties on separate counterparts), each of which
shall be an original, but all of which together shall constitute one and the
same instrument.
5. CHOICE OF LAW. THIS REASSIGNMENT SHALL BE CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO THE PRINCIPLES OF
CONFLICTS OF LAW THEREOF OR OF ANY OTHER JURISDICTION, OTHER THAN SECTION 5-1401
OF THE NEW YORK GENERAL OBLIGATIONS LAW, AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.
* * * *
IN WITNESS WHEREOF, the undersigned have caused this Reassignment of
Receivables to be duly executed and delivered by their respective duly
authorized officers on the day and year first above written.
VOLKSWAGEN DEALER FINANCE, LLC,
as Transferor
By:_____________________________________
Name:
Title:
VOLKSWAGEN CREDIT AUTO MASTER
OWNER TRUST
By: The Bank of New York,not in its
individual capacity, but solely as Owner
Trustee on behalf of the Trust,
By:_____________________________________
Name:
Title:
Schedule 1
LIST OF ACCOUNTS
Schedule 2
PROCEEDINGS
None.
Schedule 3
LIST OF TRUST ACCOUNTS
Collection Account
JPMorgan Chase Bank, N.A.
ABA No:
Account No:
Excess Funding Account
JPMorgan Chase Bank, N.A.
ABA No:
Account No:
Note Distribution Account
JPMorgan Chase Bank, N.A.
ABA No:
Account No:
