EXHIBIT 10.2
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VW CREDIT LEASING, LTD.
TRANSACTION SUBI SUPPLEMENT 2002-A
TO ORIGINATION TRUST AGREEMENT
Between
VW CREDIT, INC.,
As Settlor And Initial Beneficiary
And
U.S. BANK NATIONAL ASSOCIATION,
As Administrative Trustee, UTI Trustee And SUBI Trustee
Dated as of November [ ], 2002
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TABLE OF CONTENTS
PAGE
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PART X DEFINITIONS; THIRD-PARTY BENEFICIARIES.......................................2
Section 10.1 Definitions.......................................................2
Section 10.2 Third-Party Beneficiaries.........................................3
PART XI CREATION OF THE TRANSACTION SUBI.............................................3
Section 11.1 Initial Creation of Transaction SUBI Portfolio and
Transaction SUBI..................................................3
Section 11.2 Subsequent Removals From the Transaction SUBI Portfolio...........3
Section 11.3 Issuance and Form of Transaction SUBI Certificate.................4
Section 11.4 Filings; Termination of Transaction SUBI; Related Matters.........4
Section 11.5 Acceptance by SUBI Trustee........................................5
Section 11.6 Representations and Warranties of SUBI Trustee....................5
PART XII ASSIGNMENT OF THE TRANSACTION SUBI...........................................6
Section 12.1 Assignment........................................................6
PART XIII MISCELLANEOUS PROVISIONS.....................................................7
Section 13.1 Amendment, Etc....................................................7
Section 13.2 Governing Law.....................................................8
Section 13.3 Notices...........................................................8
Section 13.4 Severability of Provisions........................................8
Section 13.5 Effect of Transaction SUBI Supplement on Origination Trust
Agreement and Transaction Documents...............................9
Section 13.6 Each SUBI Separate; Assignees of SUBI.............................9
Section 13.7 No Petition; Release of Claims...................................10
Section 13.8 Tax Matters......................................................10
Section 13.9 ENTIRE AGREEMENT.................................................10
Section 13.10 Submission to Jurisdiction.......................................11
-i-
TRANSACTION SUBI SUPPLEMENT 2002-A
TO ORIGINATION TRUST AGREEMENT
THIS TRANSACTION SUBI SUPPLEMENT 2002-A TO ORIGINATION TRUST AGREEMENT
(as amended, modified or supplemented from time to time, the "Transaction SUBI
Supplement"), dated and effective as of November [ ], 2002, is between VW
CREDIT, INC., a Delaware corporation ("VCI"; in its capacity as settlor, the
"Settlor"; or in its capacity as initial beneficiary, the "Initial
Beneficiary"), and U.S. BANK NATIONAL ASSOCIATION, a national banking
association, as successor to U.S. Bank Trust National Association, as
administrative trustee (in such capacity, together with any successor or
permitted assign, the "Administrative Trustee"), as UTI trustee (in such
capacity, together with any successor or permitted assign, the "UTI Trustee")
and as trustee with respect to the Transaction SUBI (in such capacity, together
with any successor or permitted assign, the "SUBI Trustee"; together with the
UTI Trustee, the Administrative Trustee and Wilmington Trust Company, as
Delaware Trustee (the "Delaware Trustee"), the "Origination Trustees").
RECITALS
A. The Settlor, the UTI Trustee, the Administrative Trustee and the
Delaware Trustee have entered into that certain Trust Agreement dated as of June
2, 1999 (as modified, supplemented or amended from time to time, the
"Origination Trust Agreement") pursuant to which the Settlor formed VW Credit
Leasing, Ltd., a Delaware statutory trust (the "Origination Trust") for the
purpose of acting as agent and nominee owner of various Origination Trust Assets
in accordance with the Origination Trust Agreement.
B. The Origination Trust and VCI, as servicer (in its capacity as
servicer, the "Servicer"), also have entered into that certain Servicing
Agreement dated as of June 22, 1999 and as amended and restated as of December
21, 2000 (as modified, supplemented or amended from time to time, the "Servicing
Agreement"), which provides, among other things, for the servicing of the
Origination Trust Assets by the Servicer.
C. The Origination Trust Agreement contemplates that from time to time
the UTI Trustee, on behalf of the Origination Trust and at the direction of the
Initial Beneficiary, will identify and allocate on the Origination Trust's books
and records certain Origination Trust Assets from the Undivided Trust Interest
to separate SUBI Portfolios and will create and issue Certificates to the
Initial Beneficiary representing separate special units of beneficial interest
in the Origination Trust or "SUBIs", the beneficiary or beneficiaries of which
will hold an exclusive 100% undivided beneficial ownership interest in the
related SUBI Portfolios, all as set forth in the Origination Trust Agreement.
D. The parties hereto desire to supplement the terms of the Origination
Trust Agreement (i) to cause the UTI Trustee to identify and allocate
Origination Trust Assets to a SUBI Portfolio (the "Transaction SUBI Portfolio"),
which shall consist of Transaction Units consisting of Transaction Leases,
Transaction Vehicles and the associated Related Rights, (ii) to create and issue
to the Initial Beneficiary a SUBI Certificate (such SUBI Certificate, together
with any replacements thereof, the "Transaction SUBI Certificate") that will
evidence and represent the entire and exclusive beneficial ownership interest in
the related SUBI (the
"Transaction SUBI") and the interests in the SUBI Portfolio represented thereby,
(iii) to provide for the Origination Trust's continued holding of record title
to the Transaction SUBI Portfolio (including the Transaction Vehicles) as agent
and nominee for (and solely for the benefit of) the holder of the Transaction
SUBI Certificate, and (iv) to set forth the terms and conditions thereof.
E. Concurrently herewith, (i) VCI and Volkswagen Auto Lease Underwritten
Funding, LLC, a Delaware limited liability company (the "Transferor"), are
entering into a SUBI Sale Agreement, pursuant to which the Transferor will
purchase the Transaction SUBI and (ii) the Transferor and Volkswagen Auto Lease
Trust 2002-A, a Delaware common law trust (the "Issuer"), are entering into a
SUBI Transfer Agreement, pursuant to which the Transferor will transfer the
Transaction SUBI to the Issuer.
F. Concurrently herewith, the Issuer is entering into an asset-backed
financing transaction pursuant to, among other agreements, an Indenture dated as
of the date hereof (the "Indenture") between the Issuer and The Bank of New
York, as indenture trustee (the "Indenture Trustee"), pursuant to which, among
other things, the Issuer will issue notes and will grant a security interest to
the Indenture Trustee in certain of its assets, including the Transaction SUBI.
G. Also concurrently herewith, the Origination Trust, the Servicer and
the SUBI Trustee are entering into that certain Transaction SUBI Supplement
2002-A to Servicing Agreement (as amended, modified or supplemented from time to
time, the "Transaction SUBI Servicing Supplement") pursuant to which, among
other things, the terms of the Servicing Agreement will be supplemented insofar
as they apply to the Transaction SUBI Portfolio, providing for specific
servicing obligations.
NOW THEREFORE, in consideration of the premises and the mutual
covenants contained herein and in the Origination Trust Agreement, the parties
hereto agree to the following supplemental obligations with regard to the
Transaction SUBI Portfolio:
PART X
DEFINITIONS; THIRD-PARTY BENEFICIARIES
Section 10.1 Definitions.
For all purposes of this Transaction SUBI Supplement, except as
otherwise expressly provided or unless the context otherwise requires, (a)
unless otherwise defined herein, all capitalized terms used herein shall have
the meanings attributed to them in Appendix A to the Indenture, (b) all
capitalized terms used herein which are not defined herein or in the Indenture
and which are defined in the Origination Trust Agreement shall have the meanings
attributed to them by the Origination Trust Agreement, (c) all references to
words such as "herein", "hereof" and the like shall refer to this Transaction
SUBI Supplement as a whole and not to any particular article or section within
this Transaction SUBI Supplement, (d) the term "include" and all variations
thereon shall mean "include without limitation", and (e) the term "or" shall
include "and/or".
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Section 10.2 Third-Party Beneficiaries.
The holder and pledgees of the Transaction SUBI Certificate (including
the Issuer and the Indenture Trustee), and their respective successors,
permitted assigns and pledgees are third-party beneficiaries of the Origination
Trust Agreement and this Transaction SUBI Supplement, insofar as they apply to
the Transaction SUBI.
PART XI
CREATION OF THE TRANSACTION SUBI
Section 11.1 Initial Creation of Transaction SUBI Portfolio and
Transaction SUBI.
(a) Pursuant to Section 4.2(a) of the Origination Trust Agreement, the
Initial Beneficiary hereby directs the UTI Trustee to identify and allocate or
cause to be identified and allocated on the books and records of the Origination
Trust a separate portfolio of SUBI Assets to be accounted for and held in trust
independently from all other Origination Trust Assets consisting of those Units
(each, a "Transaction SUBI Asset"), which shall include Leased Vehicles which
are identified on Schedule 1 to this Transaction SUBI Supplement, the
Transaction Leases relating thereto and all other Origination Trust Assets to
the extent related thereto (other than cash which does not constitute
Collections received on or after the Cut-Off Date). Based upon their
identification and allocation by the Initial Beneficiary pursuant to such
Schedule 1, the UTI Trustee hereby identifies and allocates as Transaction SUBI
Assets such portfolio of SUBI Assets to be held by the Origination Trust, as
agent and nominee (and solely for the benefit of) the holder of the Transaction
SUBI Certificate, each such SUBI Asset to be identified on the books and
accounts of the Origination Trust as belonging exclusively to the Transaction
SUBI Portfolio; provided that any Collections received on or prior to the
Cut-Off Date for any such Transaction Unit identified on Schedule 1 shall not be
allocated as Transaction SUBI Assets and shall not belong to the Transaction
SUBI Portfolio.
(b) Also pursuant to Section 4.2(a) of the Origination Trust Agreement,
the UTI Trustee hereby creates a SUBI which shall be known as the "VW Credit
Leasing Ltd. Transaction Special Unit of Beneficial Interest 2002-A Certificate"
or "Transaction SUBI" and which shall represent an exclusive and specific 100%
beneficial ownership interest solely in the Transaction SUBI Portfolio and those
proceeds or assets derived from or earned by such Transaction SUBI Portfolio.
(c) Pursuant to Section 4.2(d) of the Origination Trust Agreement (which
requires each holder of a SUBI to appoint for such SUBI a trustee), VCI has
appointed U.S. Bank National Association as the SUBI Trustee for the Transaction
SUBI and the Transaction SUBI Portfolio.
Section 11.2 Subsequent Removals From the Transaction SUBI Portfolio.
(a) Upon compliance by VCI with the provisions of Section 2.3(c) of the
SUBI Sale Agreement to repurchase the beneficial interest in any Transaction
Unit, such Unit shall be identified on a schedule to the Servicer Certificate
and reallocated from the Transaction SUBI to the Undivided Trust Interest on the
Payment Date that such reallocation payment is made. Upon the Payment Date of
any of the foregoing reallocations, the UTI Trustee and the SUBI Trustee
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will each make (or cause to be made) a notation in their respective records
reflecting the reallocation of such Origination Trust Assets as of the time
thereof.
(b) Upon compliance by the Servicer with the provisions of Section 7.12
of the Transaction SUBI Servicing Supplement to purchase the beneficial interest
in any Transaction Unit subject to a Postmaturity Term Extension, such Unit will
be identified on a schedule to the Servicer Certificate and reallocated from the
Transaction SUBI to the Undivided Trust Interest (if the Servicer is VCI) or to
an Other SUBI designated by the Servicer (if the Servicer is not VCI) on the
Payment Date that such reallocation payment is made. Upon the Payment Date of
any of the foregoing reallocations, the SUBI Trustee and the UTI Trustee or
Other SUBI Trustee, as applicable, will each make (or cause to be made) a
notation in their respective records reflecting the reallocation of such
Origination Trust Assets as of the time thereof.
Section 11.3 Issuance and Form of Transaction SUBI Certificate.
(a) The Transaction SUBI shall be represented by a Transaction SUBI
Certificate which shall represent an exclusive 100% beneficial ownership
interest in the Transaction SUBI and the Transaction SUBI Portfolio, as further
set forth herein. The Transaction SUBI Certificate shall be substantially in the
form of Exhibit A attached hereto, with such appropriate insertions, omissions,
substitutions and other variations as are required by this Transaction SUBI
Supplement and may have such letters, numbers or other marks of identification
and such legends and endorsements placed thereon as may, consistently herewith
and with the Origination Trust Agreement, be directed by the Initial
Beneficiary. Any portion of the Transaction SUBI Certificate may be set forth on
the reverse thereof. The Transaction SUBI Certificate shall be printed,
lithographed, typewritten, mimeographed, photocopied or otherwise produced or
may be produced in any other manner as may, consistently herewith and with the
Origination Trust Agreement, be determined by the Initial Beneficiary.
(b) As required by Section 4.2(b) of the Origination Trust Agreement,
the Transaction SUBI Certificate shall contain an express written release and
subordination of any claim by any holder thereof to any proceeds or assets of
any Origination Trustee and to all of the Origination Trust Assets other than
those from time to time included within the Transaction SUBI Portfolio.
Section 11.4 Filings; Termination of Transaction SUBI; Related Matters.
(a) The Settlor, the UTI Trustee and the SUBI Trustee will undertake all
other and future actions and activities as may be required by the Servicer
(pursuant to the Transaction SUBI Servicing Supplement) to perfect (or evidence)
and confirm the foregoing identification and allocation of SUBI Assets to the
Transaction SUBI Portfolio, including filing or causing to be filed UCC
financing statements and executing and delivering all related filings, documents
or writings as may be deemed reasonably necessary by the Servicer hereunder or
under any of the Transaction Documents and as are presented to them in final
execution form; provided, however, that in no event will the Settlor, the
Servicer or any Origination Trustee be required to take any action to indicate
any Person as lienholder or change the Person listed as owner on the Certificate
of Title for any Leased Vehicle allocated to the Transaction SUBI Portfolio
other than as provided in Section 11.4(c) below. The Settlor hereby irrevocably
makes and appoints each of
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the SUBI Trustee and the Servicer, and any of their respective officers,
employees or agents, as the true and lawful attorney-in-fact of the Settlor
(which appointment is coupled with an interest and is irrevocable) with power to
sign on behalf of the Settlor any security agreements, mortgages, assignments,
affidavits, letters of authority, notices or similar documents necessary or
appropriate to be executed or filed pursuant to this Section.
(b) If all of the Transaction Units have been liquidated into cash and
all of such cash shall have been distributed in accordance with the Transaction
SUBI Servicing Supplement, then, at the direction of the holder of the
Transaction SUBI Certificate, the Transaction SUBI shall be terminated and the
Transaction SUBI Certificate shall be returned to the SUBI Trustee and canceled
thereby.
(c) Upon a written direction to the SUBI Trustee to revoke and terminate
the Transaction SUBI by the holder of the Transaction SUBI Certificate, the SUBI
Trustee shall (i) revoke the Transaction SUBI and (ii) promptly, at the expense
of the holder of the Transaction SUBI Certificate, distribute the Transaction
SUBI Assets to the holder of the Transaction SUBI Certificate; provided,
however, that the Transaction SUBI shall not be subject to such revocation prior
to the earlier of (A) the acceleration of the Notes under Section 5.2 of the
Indenture following an Indenture Default or (B) payment in full of principal and
accrued interest on the Notes.
Section 11.5 Acceptance by SUBI Trustee.
The SUBI Trustee shall have only the rights, powers and duties as set
forth herein and in the Origination Trust Agreement with respect to the
Transaction SUBI. In accordance with Section 3.1(d) of the Origination Trust
Agreement, the SUBI Trustee hereby accepts its appointment as SUBI Trustee with
respect to the Transaction SUBI hereunder and agrees to act as a trustee of the
Origination Trust for the benefit of the holder or holders of each Transaction
SUBI Certificate in accordance with the terms of this Transaction SUBI
Supplement and the Origination Trust Agreement. Except to execute and deliver
the Transaction Documents to which it is a party and to exercise and carry out
or cause to be exercised and carried out the rights, duties and obligations of
the SUBI Trustee hereunder and thereunder and except as otherwise authorized by
the holder of the Transaction SUBI Certificate, the SUBI Trustee shall have no
power, right, duty or authority to manage, control, possess, sell, lease,
dispose of or in any other manner deal in or with the Transaction SUBI
Certificate, the Transaction SUBI Portfolio or any Transaction SUBI Asset or any
part thereof or interest therein at any time conveyed to or vested in or
registered or otherwise standing in the name of the SUBI Trustee or the
Origination Trust.
Section 11.6 Representations and Warranties of SUBI Trustee.
The SUBI Trustee hereby makes the following representations and
warranties on which the Settlor and Initial Beneficiary, each of their permitted
assignees and each holder of the Transaction SUBI Certificate may rely:
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(a) Organization and Good Standing. The SUBI Trustee is a national
banking association, duly organized, validly existing and in good standing under
the laws of the United States.
(b) Power and Authority. The SUBI Trustee has full power, authority and
right to execute, deliver and perform this Transaction SUBI Supplement and has
taken all necessary action to authorize the execution, delivery and performance
by it of this Transaction SUBI Supplement.
(c) Due Execution. This Transaction SUBI Supplement has been duly
executed and delivered by the SUBI Trustee, and this Transaction SUBI Supplement
and the Origination Trust Agreement are legal, valid and binding instruments
enforceable against the SUBI Trustee in accordance with their respective terms,
except as such enforceability may be limited by bankruptcy, insolvency and other
similar laws relating to the enforcement of creditors' rights generally and to
general principles of equity.
(d) No Conflict. Neither the execution and delivery of this Transaction
SUBI Supplement nor the consummation of the transactions herein contemplated,
nor compliance with the provisions hereof, will conflict with or result in a
breach of, or constitute a default (with notice or passage of time or both)
under, any provision of any law, governmental rule, regulation, judgment, decree
or order binding on the SUBI Trustee or the charter or bylaws of the SUBI
Trustee or any provision of any mortgage, indenture, contract, agreement or
other instrument to which the SUBI Trustee is a party or by which it is bound.
No consent, approval or authorization of, or filing, registration or
qualification with, or the giving of notice or the taking of any other action
with respect to, any federal or Delaware state Governmental Authority is
required on the part of the SUBI Trustee in connection with the execution,
delivery and performance by the SUBI Trustee of the Origination Trust Agreement,
the Servicing Agreement, the Transaction SUBI Servicing Supplement and this
Transaction SUBI Supplement.
(e) Location of Records. The office where the SUBI Trustee keeps its
records concerning the transactions contemplated hereby is located at ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
PART XII
ASSIGNMENT OF THE TRANSACTION SUBI
Section 12.1 Assignment.
The parties to this Transaction SUBI Supplement hereby acknowledge and
consent to the mortgage, pledge, assignment and grant of a security interest by
the Issuer to the Indenture Trustee pursuant to the Indenture for the benefit of
the Noteholders of all of the Issuer's rights hereunder. In addition, the
parties to this Transaction SUBI Supplement hereby acknowledge and agree that
for so long as the Notes are outstanding, the Indenture Trustee and the Issuer
acting jointly will have the right to exercise all rights, remedies, powers,
privileges and claims of the Issuer under this Transaction SUBI Supplement;
provided, however, that after the occurrence of an Indenture Default, the
Indenture Trustee alone will have the right to exercise such rights, remedies,
powers, privileges and claims.
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PART XIII
MISCELLANEOUS PROVISIONS
Section 13.1 Amendment, Etc.
(a) Notwithstanding Section 9.1 of the Origination Trust Agreement, the
Origination Trust Agreement, as supplemented by this Transaction SUBI
Supplement, to the extent that it deals solely with the Transaction SUBI and the
Transaction SUBI Portfolio, may be amended in accordance with this Section 13.1.
(b) The Origination Trust Agreement (other than this Transaction SUBI
Supplement) may be amended by the Initial Beneficiary, without the consent of
any other Person, to cure any ambiguity or defect, to correct or supplement any
provisions in the Origination Trust Agreement or for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions in
the Origination Trust Agreement or of modifying in any manner the rights of the
parties hereto; provided that such action shall not, as evidenced by an Opinion
of Counsel delivered no later than ten (10) Business Days after the execution of
any such amendment to the Transferor, the Owner Trustee, the Indenture Trustee,
and the Origination Trustees, adversely affect the interests of the Transferor,
the Noteholders, the Indenture Trustee or the Origination Trustees (as such and
in their respective individual capacities).
(c) This Transaction SUBI Supplement may be amended without the consent
of the Noteholders or any other Person in any respect by the parties hereto
including (without limitation) to cure any ambiguity, correct or supplement any
provision in this Transaction SUBI Supplement, change in any manner or eliminate
any of the provisions in this Transaction SUBI Supplement or modify the rights
of the parties to this Transaction SUBI Supplement; provided that such amendment
shall not, in the good faith judgment of the parties hereto, materially and
adversely affect the interests of the Noteholders. Without limiting the
foregoing, any term or provision of this Transaction SUBI Supplement may be
amended by the parties hereto with the consent of the Indenture Trustee;
provided that such amendment shall not, as evidenced by an Opinion of Counsel
delivered to the Indenture Trustee, materially and adversely affect the
interests of the Noteholders.
(d) Notwithstanding anything herein to the contrary, any term or
provision of this Transaction SUBI Supplement may be amended by the parties
hereto without the consent of any of the Noteholders or any other Person to add,
modify or eliminate such provisions as may be necessary or advisable in order to
comply with or obtain more favorable treatment under any law or regulation or
any accounting rule or principle; it being a condition to any such amendment
that the Rating Agency Condition shall have been satisfied.
(e) Prior to the execution of any such amendment, the Initial
Beneficiary shall furnish at least ten (10) days' prior written notification
(or, if ten (10) days' advance notice is impracticable, as much advance notice
as is practicable) of the substance of such amendment (together with a copy of
the related Opinion of Counsel, if any) to the Transferor, the Issuer, the
Indenture Trustee and each Rating Agency; provided that the Initial Beneficiary
shall have no obligation to furnish any Rating Agency with prior written notice
of the substance of any amendment to the Origination Trust Agreement. No later
than ten (10) Business Days after the
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execution of any such amendment, the Initial Beneficiary shall furnish a copy of
such amendment to each Rating Agency, the Transferor, the Issuer and the
Indenture Trustee.
(f) Prior to the execution of any amendment to this Transaction SUBI
Supplement, the Transferor, the Owner Trustee, the Indenture Trustee and the
Origination Trustees shall be entitled to receive and conclusively rely upon an
Opinion of Counsel stating that the execution of such amendment is authorized or
permitted by the Origination Trust Agreement or this Transaction SUBI Supplement
and that all conditions precedent to the execution and delivery of such
amendment have been satisfied.
Section 13.2 Governing Law.
THIS TRANSACTION SUBI SUPPLEMENT SHALL BE CREATED UNDER AND GOVERNED BY
AND CONSTRUED UNDER THE INTERNAL LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD
TO ANY OTHERWISE APPLICABLE PRINCIPLES OF CONFLICTS OF LAWS.
Section 13.3 Notices.
The notice provisions of Section 9.3 of the Origination Trust Agreement
shall apply equally to this Transaction SUBI Supplement. All demands, notices
and communications under this Transaction SUBI Supplement or the Origination
Trust Agreement shall be in writing and shall be delivered or mailed by
registered or certified first class United States mail, postage prepaid, return
receipt requested, hand delivery, prepaid courier or telecopier, and (i) if to
the SUBI Trustee, the UTI Trustee or the Administrative Trustee, addressed to:
U.S. Bank National Association, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Trust Department; Facsimile: (312)
836-6701; (ii) if to the Delaware Trustee, addressed to: Wilmington Trust
Company, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
Corporate Trust Administration; Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇; (iii) if to the
Transferor, addressed to: Volkswagen Auto Lease Underwritten Funding, LLC, ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Treasurer; Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇; with a copy to: VW Credit, Inc., ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: General Counsel; Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇; (iv) if
to the Issuer, addressed to: U.S. Bank Trust National Association, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Attention Corporate Trust
Department; Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇; with a copy to: the Administrator,
addressed to: VW Credit, Inc., ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: Treasurer; Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇; and (v) if to the Indenture
Trustee, addressed to: The Bank of New York, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Asset Backed Securities Unit; Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇, or at such other address as shall be designated by any such
Person to the other parties hereto.
Section 13.4 Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms of
this Transaction SUBI Supplement shall be for any reason whatsoever held
invalid, then such covenants, agreements, provisions or terms shall be deemed
severable from the remaining covenants, agreements, provisions or terms of this
Transaction SUBI Supplement and shall in no way affect
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the validity or enforceability of the other provisions of this Transaction SUBI
Supplement or of the Transaction SUBI Certificate or the rights of the holder
thereof. To the extent permitted by law, the parties hereto waive any provision
of law that renders any provision of this Transaction SUBI Supplement invalid or
unenforceable in any respect.
Section 13.5 Effect of Transaction SUBI Supplement on Origination Trust
Agreement and Transaction Documents.
(a) Except as otherwise specifically provided herein: (i) the parties
shall continue to be bound by all provisions of the Origination Trust Agreement;
and (ii) the provisions set forth herein shall operate either as additions to or
modifications of the obligations of the parties under the Origination Trust
Agreement, as the context may require. In the event of any conflict between the
provisions of this Transaction SUBI Supplement and the Origination Trust
Agreement with respect to the Transaction SUBI, the provisions of this
Transaction SUBI Supplement shall prevail.
(b) For purposes of determining the parties' obligations under this
Transaction SUBI Supplement with respect to the Transaction SUBI, general
references in the Origination Trust Agreement to: (i) the SUBI Portfolio shall
be deemed to refer more specifically to the Transaction SUBI Portfolio; (ii) the
SUBI Supplement shall be deemed to refer more specifically to this Transaction
SUBI Supplement; and (iii) the SUBI Servicing Agreement Supplement shall be
deemed to refer more specifically to the Transaction SUBI Servicing Supplement.
Section 13.6 Each SUBI Separate; Assignees of SUBI.
Each party hereto acknowledges and agrees (and each holder or pledgee of
the Transaction SUBI, by virtue of its acceptance of such Transaction SUBI or
pledge thereof acknowledges and agrees) that (a) the Transaction SUBI is a
separate series of the Origination Trust as provided in Section 3806(b)(2) of
Chapter 38 of Title 12 of the Delaware Code, 12 Del. Code Section 3801 et seq.,
(b)(i) the debts, liabilities, obligations and expenses incurred, contracted for
or otherwise existing with respect to the Transaction SUBI or the Transaction
SUBI Portfolio shall be enforceable against the Transaction SUBI Portfolio only
and not against any Other SUBI Assets or the UTI Portfolio and (ii) the debts,
liabilities, obligations and expenses incurred, contracted for or otherwise
existing with respect to any Other SUBI, any Other SUBI Portfolio, the UTI or
the UTI Portfolio shall be enforceable against such Other SUBI Portfolio or the
UTI Portfolio only, as applicable, and not against the Transaction SUBI or any
Transaction SUBI Assets, (c) except to the extent required by law, UTI Assets or
SUBI Assets with respect to any SUBI (other than the Transaction SUBI) shall not
be subject to the claims, debts, liabilities, expenses or obligations arising
from or with respect to the Transaction SUBI, in respect of such claim, (d)(i)
no creditor or holder of a claim relating to the Transaction SUBI or the
Transaction SUBI Portfolio shall be entitled to maintain any action against or
recover any assets allocated to the UTI or the UTI Portfolio or any Other SUBI
or the assets allocated thereto, and (ii) no creditor or holder of a claim
relating to the UTI, the UTI Portfolio or any SUBI other than the Transaction
SUBI or any SUBI Assets other than the Transaction SUBI Portfolio shall be
entitled to maintain any action against or recover any assets allocated to the
Transaction SUBI, and (e) any purchaser, assignee or pledgee of an interest in
the Transaction SUBI or, the Transaction SUBI Certificate, must, prior to or
contemporaneously with the grant of any such
9
assignment, pledge or security interest, (i) give to the Origination Trust a
non-petition covenant substantially similar to that set forth in Section 6.9 of
the Origination Trust Agreement, and (ii) execute an agreement for the benefit
of each holder, assignee or pledgee from time to time of the UTI or UTI
Certificate and any Other SUBI or Other SUBI Certificate to release all claims
to the assets of the Origination Trust allocated to the UTI and each Other SUBI
Portfolio and, in the event that such release is not given effect, to fully
subordinate all claims it may be deemed to have against the assets of the
Origination Trust allocated to the UTI Portfolio and each Other SUBI Portfolio.
Section 13.7 No Petition; Release of Claims.
With respect to each Bankruptcy Remote Party, each party hereto (and
each holder and pledgee of the Transaction SUBI, by virtue of its acceptance of
such SUBI or pledge thereof) agrees that, prior to the date which is one year
and one day after payment in full of all obligations under each Financing, (i)
no party hereto shall authorize such Bankruptcy Remote Party to commence a
voluntary winding-up or other voluntary case or other proceeding seeking
liquidation, reorganization or other relief with respect to such Bankruptcy
Remote Party or its debts under any bankruptcy, insolvency or other similar law
now or hereafter in effect in any jurisdiction or seeking the appointment of an
administrator, a trustee, receiver, liquidator, custodian or other similar
official with respect to such Bankruptcy Remote Party or any substantial part of
its property or to consent to any such relief or to the appointment of or taking
possession by any such official in an involuntary case or other proceeding
commenced against such Bankruptcy Remote Party, or to make a general assignment
for the benefit of any party hereto or any other creditor of such Bankruptcy
Remote Party, and (ii) none of the parties hereto shall commence or join with
any other Person in commencing any proceeding against such Bankruptcy Remote
Party under any bankruptcy, reorganization, liquidation or insolvency law or
statute now or hereafter in effect in any jurisdiction.
Section 13.8 Tax Matters.
Each of the Initial Beneficiary, the UTI Trustee, the Delaware Trustee,
the SUBI Trustee and any holder or pledgee of the Transaction SUBI (including
the Issuer and the Indenture Trustee, respectively) agree that for federal and
state income tax purposes it shall not treat this Transaction SUBI Supplement as
creating or constituting a trust, partnership, association taxable as a
corporation or any other type of separate entity (and will report for such
purposes in a consistent manner therewith). Instead, each of such parties
agrees, and will consistently report, that for federal and state income tax
purposes the Origination Trust holds the Transaction SUBI Portfolio and each
asset therein as a mere agent of the Issuer. Each such party further agrees that
the Origination Trust is acting as holder of record title to the Transaction
SUBI Portfolio, including the Transaction Vehicles, solely for the benefit of,
and as agent and nominee of, the Issuer, and shall not hold itself out or act in
a manner inconsistent with it acting merely as agent and nominee.
Section 13.9 ENTIRE AGREEMENT.
THIS AGREEMENT AND THE OTHER TRANSACTION DOCUMENTS EXECUTED AND
DELIVERED IN CONNECTION HEREWITH REPRESENT THE FINAL
10
AGREEMENT BETWEEN THE PARTIES HERETO AND THERETO AND MAY NOT BE CONTRADICTED BY
EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.
Section 13.10 Submission to Jurisdiction.
Each of the parties hereto hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement or any documents executed and delivered in
connection herewith, or for recognition and enforcement of any judgment in
respect thereof, to the nonexclusive general jurisdiction of the courts of the
State of New York, the courts of the United States of America for the Southern
District of New York and appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought in such
courts and waives any objection that it may now or hereafter have to the venue
of such action or proceeding in any such court or that such action or proceeding
was brought in an inconvenient court and agrees not to plead or claim the same;
(c) agrees that service of process in any such action or proceeding may
be effected by mailing a copy thereof by registered or certified mail (or any
substantially similar form of mail), postage prepaid, to such Person at its
address determined in accordance with Section 13.3 of this Transaction SUBI
Supplement; and
(d) agrees that nothing herein shall affect the right to effect service
of process in any other manner permitted by law or shall limit the right to ▇▇▇
in any other jurisdiction.
[SIGNATURES ON NEXT PAGE]
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IN WITNESS WHEREOF, the parties hereto have caused this Transaction SUBI
Supplement to be duly executed by their respective officers as of the day and
year first above written.
VW CREDIT, INC.,
as Settlor and Initial Beneficiary
By:_________________________________
Name:_______________________________
Title:______________________________
By:_________________________________
Name:_______________________________
Title:______________________________
U.S. BANK NATIONAL ASSOCIATION,
as Administrative Trustee, UTI Trustee
and SUBI Trustee
By:_________________________________
Name:_______________________________
Title:______________________________
12
SCHEDULE 1
Transaction SUBI Supplement
2002-A
DESCRIPTION OF TRANSACTION UNITS
[delivered electronically to the Indenture Trustee]
I-1
EXHIBIT A
FORM OF TRANSACTION SUBI CERTIFICATE
VW CREDIT LEASING, LTD.
TRANSACTION SPECIAL UNIT OF BENEFICIAL INTEREST 2002-A CERTIFICATE
evidencing an exclusive undivided 100% beneficial ownership interest in
all Transaction SUBI Assets (as defined below).
(This Certificate does not represent an obligation of, or an interest
in, VW Credit, Inc. or any of its affiliates (other than the Origination
Trust (as defined below)).)
Number Transaction SUBI-2002-A-[ ]
THIS CERTIFIES THAT ______________________________________ is the
registered owner of a 100% nonassessable, fully-paid, exclusive undivided
interest in the Transaction SUBI Portfolio (such interest, a "Transaction SUBI")
of VW Credit Leasing, Ltd., a Delaware statutory trust (the "Origination Trust")
formed by VW Credit, Inc., a Delaware corporation, as settlor ("VCI" or, in its
capacity as settlor thereunder, and, together with any successor or assign, the
"Settlor"), Wilmington Trust Company, a Delaware banking corporation, as
Delaware trustee (the "Delaware Trustee"), and U.S. Bank National Association
(f/k/a U.S. Bank Trust National Association), as administrative trustee (the
"Administrative Trustee") and UTI trustee (the "UTI Trustee"). The Origination
Trust was created pursuant to a Trust Agreement dated as of June 2, 1999 (as
modified, supplemented, or amended from time to time, the "Agreement") among VCI
as the Settlor and as the sole initial beneficiary (in such capacity, and,
together with any successor or permitted assign, the "Initial Beneficiary"), the
UTI Trustee, the Administrative Trustee and the Delaware Trustee, as
supplemented for purposes hereof by that certain Transaction SUBI Supplement
2002-A to Origination Trust Agreement dated as of November [ ], 2002 (as
amended, modified or supplemented from time to time, the "Transaction SUBI
Supplement") among the Settlor, the Initial Beneficiary, the UTI Trustee, the
Administrative Trustee and U.S. Bank National Association, as the SUBI Trustee.
To the extent not otherwise defined herein, the capitalized terms herein have
the meanings set forth in the Agreement.
This Certificate is the duly authorized certificate issued under the
Agreement and the Transaction SUBI Supplement dated even date herewith and
designated as "VW Credit Leasing, Ltd. Transaction Special Unit of Beneficial
Interest 2002-A Certificate" (the "Transaction SUBI Certificate"). This
Transaction SUBI Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement and the Transaction SUBI Supplement,
to which Agreement the holder of this Transaction SUBI Certificate by virtue of
the acceptance hereof assents and by which such holder is bound. Also to be
issued under the Agreement are various other series of Certificates, the first
designated as "VW Credit Leasing, Ltd. Undivided Trust Interest Certificates"
(the "Undivided Trust Interest Certificates"), and the others each designated as
"VW Credit Leasing, Ltd. Special Unit of Beneficial Interest Certificates" (the
"SUBI Certificates" and, together with the Undivided Trust Interest
Certificates, the "Certificates").
A-1
The Undivided Trust Interest Certificates, taken together, evidence an exclusive
undivided interest in the assets of the Origination Trust, other than SUBI
Assets (each as defined in the Agreement); each other series of SUBI
Certificates, taken together, will evidence an exclusive undivided interest in a
separate SUBI Portfolio other than the Transaction SUBI Portfolio.
The Certificates do not represent an obligation of, or an interest in,
the Settlor, any Origination Trustee or any of their respective affiliates
(other than the Origination Trust). A copy of the Agreement may be examined
during normal business hours at the principal office of the Settlor or any
Origination Trustee, and at such other places, if any, designated by the Settlor
or any Origination Trustee, by the holder hereof upon request.
By accepting this Certificate, the holder hereof releases (or fully
subordinates, but only to the extent such release is not given effect) any claim
in respect of this Certificate to any proceeds or assets of the Origination
Trust and to all of the assets of the Origination Trust other than those from
time to time included within the Transaction SUBI Portfolio (the "Transaction
SUBI Assets") and those proceeds or assets derived from or earned by the
Transaction SUBI Assets.
Prior to due presentation of this Certificate for registration of a
permitted transfer, the Origination Trustee, the certificate registrar and any
of their respective agents may treat the person or entity in whose name this
Certificate is registered as the owner hereof for the purpose of receiving
distributions and for all other purposes, and, except as provided for in the
Agreement, neither the Origination Trustee, the certificate registrar nor any
such agent shall be affected by any notice to the contrary.
The holder of this Certificate covenants and agrees that prior to the
date which is one year and one day after the date upon which all obligations
under each Financing have been paid in full, it will not institute against, or
join any other Person in instituting against, the Origination Trust, the Initial
Beneficiary, any Special Purpose Entity, or any general partner of any Special
Purpose Entity that is a partnership, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceeding or other proceedings under any
federal or state bankruptcy or similar law.
No bankruptcy, reorganization, arrangement, insolvency or liquidation
proceeding or other proceedings under any federal or state bankruptcy,
insolvency or similar law shall be instituted by the Origination Trust without
the unanimous consent of all Origination Trustees and Certificateholders
hereunder. A SUBI Trustee shall not so consent unless directed to do so by the
holder of the applicable SUBI, and the Delaware Trustee shall not so consent
unless directed to do so by all of the Certificateholders.
Unless this Certificate shall have been executed by an authorized
officer of the Origination Trustee, by manual signature, this Certificate shall
not entitle the holder hereof to any benefit under the Agreement or be valid for
any purpose.
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IN WITNESS WHEREOF, the Administrative Trustee and the SUBI Trustee on
behalf of the Origination Trust and not in their individual capacities have
caused this Transaction SUBI Certificate to be duly executed.
Dated: VW CREDIT LEASING, LTD.
By: U.S. BANK NATIONAL ASSOCIATION,
not in its individual capacity but solely as
Administrative Trustee and SUBI Trustee
By:
-----------------------------------------
Authorized Officer
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