EXHIBIT 10.8
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ADMINISTRATION AGREEMENT
AMONG
VOLKSWAGEN AUTO LEASE TRUST 2004-A,
AS ISSUER
VW CREDIT, INC.,
AS ADMINISTRATOR
AND
CITIBANK, N.A.,
AS INDENTURE TRUSTEE
DATED AS OF SEPTEMBER 29, 2004
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TABLE OF CONTENTS
PAGE
1. Duties of the Administrator............................................................................ 1
2. Records................................................................................................ 2
3. Compensation; Payment of Fees and Expenses............................................................. 3
4. Independence of the Administrator...................................................................... 4
5. No Joint Venture....................................................................................... 4
6. Other Activities of the Administrator.................................................................. 4
7. Representations and Warranties of the Administrator.................................................... 4
8. Administrator Replacement Events; Termination of the Administrator..................................... 5
9. Action upon Termination or Removal..................................................................... 7
10. Liens.................................................................................................. 7
11. Notices................................................................................................ 7
12. Amendments............................................................................................. 8
13. Governing Law; Submission to Jurisdiction.............................................................. 9
14. Headings............................................................................................... 10
15. Counterparts........................................................................................... 10
16. Severability of Provisions............................................................................. 10
17. Not Applicable to VCI in Other Capacities.............................................................. 10
18. Benefits of the Administration Agreement............................................................... 10
19. Assignment............................................................................................. 10
20. Nonpetition Covenant................................................................................... 11
21. Limitation of Liability................................................................................ 11
22. Each SUBI Separate; Assignees of SUBI.................................................................. 11
23. Limitation of Rights................................................................................... 12
-i-
THIS ADMINISTRATION AGREEMENT (this "Agreement") dated as of September
29, 2004, is between Volkswagen Auto lease Trust 2004-A, a Delaware statutory
trust (the "Issuer"), VW CREDIT, Inc., a Delaware corporation, as administrator
("VCI" or in its capacity as administrator, the "Administrator"), and CITIBANK,
N.A., a national banking association, as indenture trustee (the "Indenture
Trustee"). Capitalized terms used herein and not otherwise defined herein shall
have the meanings assigned such terms in Appendix A to the Indenture dated as of
September 29, 2004 (the "Indenture") by and between the Issuer and the Indenture
Trustee.
W I T N E S S E T H :
WHEREAS, the Issuer has issued the Notes pursuant to the Indenture and
the Certificates pursuant to the Trust Agreement and has entered into or is
subject to certain agreements in connection therewith, including, (i) the SUBI
Transfer Agreement, (ii) the Indenture, (iii) the Depository Agreement, (iv) the
Interest Rate Swap Agreement and (v) the Trust Agreement (each of the agreements
referred to in clauses (i) through (v) are referred to herein collectively as
the "Issuer Documents");
WHEREAS, to secure payment of the Notes, the Issuer has pledged the
Collateral to the Indenture Trustee pursuant to the Indenture;
WHEREAS, pursuant to the Issuer Documents, the Issuer is required to
perform certain duties;
WHEREAS, the Issuer desires to have the Administrator perform certain
of the duties of the Issuer, and to provide such additional services consistent
with this Agreement and the Issuer Documents as the Issuer may from time to time
request;
WHEREAS, the Administrator has the capacity to provide the services
required hereby and is willing to perform such services for the Issuer on the
terms set forth herein;
NOW, THEREFORE, in consideration of the mutual terms and covenants
contained herein, and other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties agree as follows:
1. Duties of the Administrator.
(a) Duties with Respect to the Issuer Documents. The
Administrator shall perform all of its duties as Administrator under
this Agreement and the Issuer Documents and the duties and obligations
of the Issuer and the Owner Trustee (in its capacity as owner trustee)
under the Issuer Documents; provided, however, except as otherwise
provided in the Issuer Documents, that the Administrator shall have no
obligation to make any payment required to be made by the Issuer under
any Issuer Document. In addition, the Administrator shall consult with
the Issuer and the Owner Trustee regarding its duties and obligations
under the Issuer Documents. The Administrator shall monitor the
performance of the Issuer and the Owner Trustee and shall advise the
Issuer and the Owner Trustee when action is necessary to comply with
the Issuer's and the Owner Trustee's duties and obligations under the
Issuer Documents. The Administrator shall
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perform such calculations, and shall prepare for execution by the
Issuer or the Owner Trustee or shall cause the preparation by other
appropriate persons of all such documents, reports, filings,
instruments, certificates and opinions as it shall be the duty of the
Issuer or the Owner Trustee (in its capacity as owner trustee) to
prepare, file or deliver pursuant to the Issuer Documents. In
furtherance of the foregoing, the Administrator shall take all
appropriate action that is the duty of the Issuer or the Owner Trustee
(in its capacity as owner trustee) to take pursuant to the Issuer
Documents, and shall prepare and execute on behalf of the Issuer or the
Owner Trustee all such documents, reports, filings, instruments,
certificates and opinions as it shall be the duty of the Issuer or the
Owner Trustee to prepare, file or deliver pursuant to the Issuer
Documents or otherwise by law.
(b) No Action by Administrator. Notwithstanding anything to
the contrary in the Agreement, the Administrator shall not be obligated
to, and shall not, take any action that the Issuer directs the
Administrator not to take nor which would result in a violation or
breach of the Issuer's covenants, agreements or obligations under any
of the Issuer Documents.
(c) Non-Ministerial Matters; Exceptions to Administrator
Duties.
(i) Notwithstanding anything to the contrary in this
Agreement, with respect to matters that in the reasonable
judgment of the Administrator are non-ministerial, the
Administrator shall not take any action unless, within a
reasonable time before the taking of such action, the
Administrator shall have notified the Issuer of the proposed
action and the Issuer shall not have withheld consent or
provided an alternative direction. For the purpose of the
preceding sentence, "non-ministerial matters" shall include,
without limitation:
(A) the initiation of any claim or lawsuit by the
Issuer and the compromise of any action, claim or lawsuit
brought by or against the Issuer;
(B) the appointment of successor Note Registrars,
successor Paying Agents, successor Indenture Trustees,
successor Administrators or successor Servicers, or the
consent to the assignment by the Note Registrar, the Paying
Agent or the Indenture Trustee of its obligations under the
Indenture; and
(C) the removal of the Indenture Trustee.
(ii) Notwithstanding anything to the contrary in this
Agreement, the Administrator shall not be obligated to, and
shall not, (x) make any payments to the Noteholders or the
Swap Counterparty under the Transaction Documents, (y) except
as provided in the Transaction Documents, sell the Trust
Estate or (z) take any other action that the Issuer directs
the Administrator not to take on its behalf.
2. Records. The Administrator shall maintain appropriate books of
account and records relating to services performed hereunder, which books of
account and records shall be accessible for inspection upon reasonable written
request by the Issuer, the Transferor and the Indenture Trustee at any time
during normal business hours.
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3. Compensation; Payment of Fees and Expenses.
(a) Administration Fee. As compensation for the performance of the
Administrator's obligations under this Agreement and as reimbursement for its
expenses related thereto, the Administrator shall be entitled to receive the
Administration Fee in accordance with Section 8.4 of the Indenture. The
Administrator shall pay all expenses incurred by it in connection with its
activities hereunder.
(b) Compensation and Indemnification under the Transaction Documents.
The Administrator shall:
(i) pay to the Indenture Trustee and any separate trustee or
co-trustee appointed pursuant to Section 6.10 of the Indenture (a
"Separate Trustee") from time to time such compensation as the Issuer,
the Administrator and the Indenture Trustee shall from time to time
agree in writing for services rendered under the Indenture (which
compensation shall not be limited by any law on compensation of a
trustee of an express trust);
(ii) except as otherwise expressly provided in the Indenture,
reimburse the Indenture Trustee and any Separate Trustee for all
reasonable expenses, disbursements and advances reasonably incurred in
connection with the performance of their duties under the Indenture;
(iii) indemnify the Indenture Trustee and any Separate
Trustee, in their respective individual capacities and as trustees, and
their successors, assigns, directors, officers, employees and agents in
accordance with Section 6.7 of the Indenture;
(iv) defend any claim for which the Indenture Trustee or any
Separate Trustee seeks indemnity and pay the fees and expenses of
separate counsel of the Indenture Trustee or any Separate Trustee
related to such defense;
(v) pay to the Owner Trustee from time to time compensation
for all services rendered by the Owner Trustee under the Trust
Agreement in accordance with a Fee Letter between the Administrator and
the Owner Trustee (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of an
express trust);
(vi) reimburse the Owner Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by the
Owner Trustee in accordance with any provision of the Trust Agreement
(including the reasonable compensation, expenses and disbursements of
such agents and counsel as the Owner Trustee may employ in connection
with the exercise and performance of its rights and its duties under
the Trust Agreement), except any such expense that may be attributable
to the Owner Trustee's willful misconduct, gross negligence or bad
faith; and
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(vii) indemnify the Owner Trustee in its individual capacity
and as trustee and its successors, assigns, directors, officers,
employees and agents in accordance with Section 8.2 of the Trust
Agreement;
provided that, notwithstanding anything to the contrary contained
herein or in any other Transaction Document, clauses (i) through (vii)
above shall survive the termination of this Agreement.
4. Independence of the Administrator. For all purposes of this
Agreement, the Administrator shall be an independent contractor and shall not be
subject to the supervision of the Issuer with respect to the manner in which it
accomplishes the performance of its obligations hereunder. Unless expressly
authorized by the Issuer, the Administrator shall have no authority to act for
or to represent the Issuer in any way (other than as permitted hereunder) and
shall not otherwise be deemed an agent of the Issuer.
5. No Joint Venture. Nothing contained in this Agreement (i) shall
constitute the Administrator and the Issuer as members of any partnership, joint
venture, association, syndicate, unincorporated business or other separate
entity, (ii) shall be construed to impose any liability as such on any of them
or (iii) shall be deemed to confer on any of them any express, implied or
apparent authority to incur any obligation or liability on behalf of the others.
6. Other Activities of the Administrator. Nothing herein shall prevent
the Administrator or its Affiliates from engaging in other businesses or, in its
sole discretion, from acting in a similar capacity as an Administrator for any
other Person even though such Person may engage in business activities similar
to those of the Issuer, the Owner Trustee or the Indenture Trustee.
7. Representations and Warranties of the Administrator. The
Administrator represents and warrants to the Issuer and the Indenture Trustee as
follows:
(a) Existence and Power. The Administrator 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
to carry on its business as now conducted. The Administrator has
obtained all necessary licenses and approvals in each jurisdiction
where the failure to do so would materially and adversely affect the
ability of the Administrator to perform its obligations under the
Transaction Documents.
(b) Authorization and No Contravention. The execution,
delivery and performance by the Administrator of the Transaction
Documents to which it is a party (i) have been duly authorized by all
necessary action on the part of the Administrator 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 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 the
Administrator's ability to perform its obligations under, the
Transaction Documents)
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(c) No Consent Required. No approval or authorization by, or
filing with, any Governmental Authority is required in connection with
the execution, delivery and performance by the Administrator of any
Transaction Document other than (i) UCC filings, (ii) approvals and
authorizations that have previously been obtained and filings that have
previously been made and (iii) approvals, authorizations or filings
which, if not obtained or made, would not materially and adversely
affect the ability of the Administrator to perform its obligations
under the Transaction Documents.
(d) Binding Effect. Each Transaction Document to which the
Administrator is a party constitutes the legal, valid and binding
obligation of the Administrator enforceable against the Administrator
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 the enforcement of 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.
8. Administrator Replacement Events; Termination of the Administrator.
(a) Subject to clauses (d) and (e) below, the Administrator
may resign its duties hereunder by providing the Issuer with at least
sixty (60) days' prior written notice.
(b) Subject to clauses (d) and (e) below, the Issuer may
remove the Administrator without cause by providing the Administrator
with at least sixty (60) days' prior written notice.
(c) The occurrence of any one of the following events (each,
an "Administrator Replacement Event") shall also entitle the Issuer,
subject to Section 19 hereof, to terminate and replace the
Administrator:
(i) any failure by the Administrator to deliver or
cause to be delivered any required payment to the Indenture
Trustee for distribution to the Noteholders or Swap
Counterparty, which failure continues unremedied for ten
business days after discovery thereof by a Responsible Officer
of the Administrator or receipt by the Administrator of
written notice thereof from the Indenture Trustee or
Noteholders evidencing at least a majority of the aggregate
principal amount of the Outstanding Notes, voting together as
a single class;
(ii) any failure by the Administrator to duly observe
or perform in any material respect any other of its covenants
or agreements in this Agreement, which failure materially and
adversely affects the rights of the Issuer, the Swap
Counterparty or the Noteholders, and which continues
unremedied for 90 days after discovery thereof by a
Responsible Officer of the Administrator or receipt by the
Administrator of written notice thereof from the Indenture
Trustee or Noteholders evidencing at least a majority of the
aggregate principal amount of the Outstanding Notes, voting
together as a single class;
(iii) any representation or warranty of the
Administrator made in any Transaction Document to which the
Administrator is a party or by which it is
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bound or any certificate delivered pursuant to this Agreement
proves to have been incorrect in any material respect when
made, which failure materially and adversely affects the
rights of the Issuer or the Noteholders, and which failure
continues unremedied for 90 days after discovery thereof by a
Responsible Officer of the Administrator or receipt by the
Administrator of written notice thereof from the Indenture
Trustee or Noteholders evidencing at least a majority of the
aggregate principal amount of the Outstanding Notes, voting
together as a single class (it being understood that any
repurchase of a Unit by VCI pursuant to Section 2.3 of the
SUBI Sale Agreement shall be deemed to remedy any incorrect
representation or warranty with respect to such Unit); or
(iv) the Administrator suffers a Bankruptcy Event;
provided, however, that a delay in or failure of performance
referred to under clauses (i), (ii) or (iii) above for a
period of 150 days will not constitute an Administrator
Replacement Event if such delay or failure was caused by force
majeure or other similar occurrence.
(d) If an Administrator Replacement Event shall have occurred,
the Issuer may, subject to Section 19 hereof, by notice given to the
Administrator and the Owner Trustee, terminate all or a portion of the
rights and powers of the Administrator under this Agreement, including
the rights of the Administrator to receive the annual fee for services
hereunder for all periods following such termination; provided,
however, that such termination shall not become effective until such
time as the Issuer, subject to Section 19 hereof, shall have appointed
a successor Administrator in the manner set forth below. Upon any such
termination, all rights, powers, duties and responsibilities of the
Administrator under this Agreement shall vest in and be assumed by any
successor Administrator appointed by the Issuer, subject to Section 19
hereof, pursuant to a management agreement between the Issuer and such
successor Administrator, containing substantially the same provisions
as this Agreement (including with respect to the compensation of such
successor Administrator), and the successor Administrator is hereby
irrevocably authorized and empowered to execute and deliver, on behalf
of the Administrator, as attorney-in-fact or otherwise, all documents
and other instruments, and to do or accomplish all other acts or things
necessary or appropriate to effect such vesting and assumption.
Further, in such event, the Administrator shall use its commercially
reasonable efforts to effect the orderly and efficient transfer of the
administration of the Issuer to the new Administrator.
(e) The Issuer, subject to Section 19 hereof, may waive in
writing any Administrator Replacement Event by the Administrator in the
performance of its obligations hereunder and its consequences. Upon any
such waiver of a past Administrator Replacement Event, such
Administrator Replacement Event shall cease to exist, and any
Administrator Replacement Event arising therefrom shall be deemed to
have been remedied for every purpose of this Agreement. No such waiver
shall extend to any subsequent or other Administrator Replacement Event
or impair any right consequent thereon.
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9. Action upon Termination or Removal. Promptly upon the effective date
of termination of this Agreement pursuant to Section 8, or the removal of the
Administrator pursuant to Section 8, the Administrator shall be entitled to be
paid all fees and reimbursable expenses accruing to it to the date of such
termination or removal.
10. Liens. The Administrator will not directly or indirectly create,
allow or suffer to exist any Lien on the Collateral other than Permitted Liens.
11. Notices. Any notice, report or other communication given hereunder
shall be in writing and addressed as follows:
(a) if to the Administrator, to:
VW Credit, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Mayer, Brown, ▇▇▇▇ & Maw LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Confirmation No.: (▇▇▇) ▇▇▇-▇▇▇▇
(b) if to the Issuer, to:
Volkswagen Auto Lease Trust ▇▇▇▇-▇
▇/▇ ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
Corporate Trust Division
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Division
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to the Corporate Trust Office, and
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with a copy to:
Mayer, Brown, ▇▇▇▇ & Maw LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Confirmation No.: (▇▇▇) ▇▇▇-▇▇▇▇
(c) if to the Owner Trustee, to:
The Bank of New York (Delaware)
▇/▇ ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Division
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to the Corporate Trust Office
(d) if to the Indenture Trustee, to:
Citibank, N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, 14th Floor, ▇▇▇▇ ▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Citibank Agency & Trust, Structured
Finance Group
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address as any party shall have provided to the other parties
in writing. Any notice required to be in writing hereunder shall be deemed given
if such notice is mailed by certified mail, postage prepaid or hand-delivered to
the address of such party as provided above.
12. Amendments.
(a) Any term or provision of this Agreement may be amended by
the Administrator without the consent of the Indenture Trustee, any
Noteholder, the Swap Counterparty or the Issuer; provided that (i) any
amendment that materially and adversely affects the interests of the
Noteholders shall require the consent of Noteholders evidencing not
less than a majority of the aggregate outstanding principal amount of
the Outstanding Notes, voting as a single class, (ii) any amendment
that materially and adversely affects the interests of the
Certificateholders, the Swap Counterparty, the Indenture Trustee or the
Owner Trustee shall require the prior written consent of the Persons
whose interests are materially and adversely affected. An amendment
shall be
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deemed not to materially and adversely affect the interests of the
Noteholders if the Rating Agency Condition is satisfied with respect to
such amendment. The consent of the Certificateholders, the Swap
Counterparty or the Issuer 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) 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.
(c) Notwithstanding anything herein to the contrary, any term
or provision of this Agreement may be amended by the parties hereto
without the consent of any of the Noteholders or any other Person to
add, modify or eliminate any provisions as may be necessary or
advisable in order to comply with or obtain more favorable treatment
under or with respect to any law or regulation or any accounting rule
or principle (whether now or in the future in effect); it being a
condition to any such amendment that the Rating Agency Condition shall
have been satisfied.
(d) Prior to the execution of any amendment to this Agreement,
the Administrator 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
Administrator shall furnish a copy of such amendment to each Rating
Agency, the Issuer, the Owner Trustee, the Indenture Trustee and the
Swap Counterparty.
(e) Prior to the execution of any amendment to this Agreement,
the Issuer, the Owner Trustee and the Indenture Trustee 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. The Owner Trustee
and the Indenture Trustee may, but shall not be obligated to, enter
into any such amendment which adversely affects the Owner Trustee's or
the Indenture Trustee's, as applicable, own rights, duties or
immunities under this Agreement.
13. Governing Law; Submission to Jurisdiction.
(a) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL, SUBSTANTIVE LAWS OF THE STATE OF NEW YORK
WITHOUT REFERENCE TO THE RULES THEREOF RELATING TO CONFLICTS OF LAW AND
THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS.
(b) Each of the parties hereto hereby irrevocably and
unconditionally:
(i) 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,
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9
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;
(ii) 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;
(iii) 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 11 of this Agreement;
and
(iv) 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.
14. Headings. The section headings hereof have been inserted for
convenience of reference only and shall not be construed to affect the meaning,
construction or effect of this Agreement.
15. Counterparts. This Agreement may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original, but
all of such counterparts shall together constitute but one and the same
instrument.
16. Severability of Provisions. If any one or more of the covenants,
agreements, provisions or terms of this Agreement 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 Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement.
17. Not Applicable to VCI in Other Capacities. Nothing in this
Agreement shall affect any obligation VCI may have in any other capacity.
18. Benefits of the Administration Agreement. Nothing in this
Agreement, expressed or implied, shall give to any Person other than the parties
hereto and their successors hereunder, the Owner Trustee, any separate trustee
or co-trustee appointed under the Indenture and the Noteholders, any benefit or
any legal or equitable right, remedy or claim under this Agreement. For the
avoidance of doubt, the Owner Trustee is a third party beneficiary of this
Agreement and is entitled to the rights and benefits hereunder and may enforce
the provisions hereof as if it were a party hereto.
19. Assignment. Each party hereto hereby acknowledges and consents 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 and the Swap Counterparty of all of the Issuer's rights under this
Agreement. In addition, the Administrator hereby
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acknowledges and agrees that for so long as any Notes are outstanding, the
Indenture Trustee will have the right to exercise all waivers and consents,
rights, remedies, powers, privileges and claims of the Issuer under this
Agreement.
20. Nonpetition Covenant. With respect to each Bankruptcy Remote Party,
each party hereto 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. Each of the parties hereto agrees that,
prior to the date which is one year and one day after the payment in full of all
obligations under each Financing, it will not institute against, or join any
other Person in instituting against, any Bankruptcy Remote Party an action in
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings
or similar proceeding under the laws of the United States or any State of the
United States.
21. Limitation of Liability. Notwithstanding anything contained herein
to the contrary, this Agreement has been executed and delivered by The Bank of
New York (Delaware), not in its individual capacity but solely as Owner Trustee,
and in no event shall it have any liability for the representations, warranties,
covenants, agreements or other obligations of the Issuer hereunder or under the
Notes or any of the other Transaction Documents or in any of the certificates,
notices or agreements delivered pursuant thereto, as to all of which recourse
shall be had solely to the assets of the Issuer. Under no circumstances shall
the Owner Trustee be personally liable for the payment of any indebtedness or
expense of the Issuer or be liable for the breach or failure of any obligations,
representation, warranty or covenant made or undertaken by the Issuer under the
Transaction Documents. For the purposes of this Agreement, in the performance of
its duties or obligations hereunder, the Owner Trustee shall be subject to, and
entitled to the benefits of, the terms and provisions of Articles VI, VII and
VIII of the Trust Agreement.
22. 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 Transaction SUBI Assets or the UTI Portfolio and (ii) the debts,
liabilities,
VALT 2004-A Administration Agreement
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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 Other
SUBI Assets, (c) except to the extent required by law, UTI Assets or SUBI Assets
with respect to any SUBI (other than the Transaction SUBI) shall not be subject
to the claims, debts, liabilities, expenses or obligations arising from or with
respect to the Transaction SUBI in respect of such claim, (d)(i) no creditor or
holder of a claim relating to the Transaction SUBI or the Transaction SUBI
Portfolio shall be entitled to maintain any action against or recover any assets
allocated to the UTI or the UTI Portfolio or any Other SUBI or the assets
allocated thereto, and (ii) no creditor or holder of a claim relating to the
UTI, the UTI Portfolio or any SUBI other than the Transaction SUBI or any SUBI
Assets other than the Transaction SUBI Portfolio shall be entitled to maintain
any action against or recover any assets allocated to the Transaction SUBI and
(e) any purchaser, assignee or pledgee of an interest in the Transaction SUBI or
the Transaction SUBI Certificate must, prior to or contemporaneously with the
grant of any such assignment, pledge or security interest, (i) give to the
Origination Trust a non-petition covenant substantially similar to that set
forth in Section 6.9 of the Origination Trust Agreement, and (ii) execute an
agreement for the benefit of each holder, assignee or pledgee from time to time
of the UTI or UTI Certificate and any Other SUBI or Other SUBI Certificate, to
release all claims to the assets of the Origination Trust allocated to the UTI
Portfolio and each Other SUBI Portfolio and in the event that such release is
not given effect, to fully subordinate all claims it may be deemed to have
against the assets of the Origination Trust allocated to the UTI Portfolio and
each Other SUBI Portfolio.
23. Limitation of Rights. All of the rights of the Swap Counterparty
in, to and under this Agreement shall terminate upon the termination of the
Interest Rate Swap Agreement in accordance with the terms thereof and the
payment in full of all amounts owing to the Swap Counterparty.
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VALT 2004-A Administration Agreement
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered as of the day and year first above written.
VOLKSWAGEN AUTO LEASE TRUST 2004-A
By: The Bank of New York (Delaware), not
in its individual capacity but solely as
Owner Trustee
By:_______________________________________
Name:
Title:
VALT 2004-A Administration Agreement
S-1
VW CREDIT, INC., as Administrator
By:_______________________________________
Name:
Title:
By:_______________________________________
Name:
Title:
VALT 2004-A Administration Agreement
S-2
CITIBANK, N.A., as Indenture Trustee
By:_______________________________________
Name:
Title:
VALT 2004-A Administration Agreement
S-3
