EXHIBIT 10.8
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ADMINISTRATION AGREEMENT
AMONG
VOLKSWAGEN AUTO LEASE TRUST 2002-A,
AS ISSUER
AND
VW CREDIT, INC.,
AS ADMINISTRATOR
AND
THE BANK OF NEW YORK,
AS INDENTURE TRUSTEE
DATED AS OF NOVEMBER [ ], 2002
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TABLE OF CONTENTS
PAGE
1. Certain Definitions....................................................1
2. Duties of the Administrator............................................2
3. Successor Servicer and Administrator..................................10
4. Records...............................................................10
5. Compensation..........................................................10
6. Additional Information To Be Furnished to the Issuer..................10
7. Independence of the Administrator.....................................10
8. No Joint Venture......................................................10
9. Other Activities of Administrator.....................................10
10. Term of Agreement, Resignation and Removal of Administrator...........11
11. Action upon Termination, Resignation or Removal.......................12
12. Notices...............................................................12
13. Amendment.............................................................12
14. Successors and Assigns................................................13
15. GOVERNING LAW.........................................................13
16. Headings..............................................................13
17. Separate Counterparts.................................................13
18. Severability of Provisions............................................13
19. Not Applicable to VCI in Other Capacities.............................13
20. Limitation of Liability of Owner Trustee and Indenture Trustee........13
21. Third-Party Beneficiary...............................................14
22. Submission to Jurisdiction............................................14
23. Nonpetition Covenant..................................................14
24. Each SUBI Separate; Assignees of SUBI.................................15
-i-
THIS ADMINISTRATION AGREEMENT, made as of November [ ], 2002 (this
"Agreement"), is among VOLKSWAGEN AUTO LEASE TRUST 2002-A, a Delaware common law
trust (the "Issuer"), by U.S. Bank Trust National Association, not in its
individual capacity but solely as owner trustee, VW CREDIT, INC., a Delaware
corporation ("VCI"), as administrator (in such capacity, the "Administrator"),
and THE BANK OF NEW YORK, a New York banking corporation, not in its individual
capacity but solely as Indenture Trustee (the "Indenture Trustee").
W I T N E S S E T H :
WHEREAS, the Issuer is issuing the __% Auto Lease Asset Backed Class A-1
Notes, the __% Auto Lease Asset Backed Class A-2 Notes, the __% Auto Lease Asset
Backed Class A-3 Notes and the __% Auto Lease Asset Backed Class A-4 Notes
(collectively, the "Notes") on the date hereof pursuant to the Indenture between
the Issuer and the Indenture Trustee;
WHEREAS, Volkswagen Auto Lease Underwritten Funding, LLC (the
"Transferor") will hold the Certificates evidencing a beneficial ownership
interest in the Issuer pursuant to the Trust Agreement;
WHEREAS, the Issuer has entered into (or assumed) certain agreements in
connection with the issuance of the Notes, including (i) the Trust Agreement,
(ii) the SUBI Sale Agreement, (iii) the SUBI Transfer Agreement, (iv) the
Origination Trust Agreement, (v) the Transaction SUBI Supplement, (vi) the
Servicing Agreement, (vii) the Transaction SUBI Servicing Supplement, (viii) the
Indenture and (ix) the Depository Agreement;
WHEREAS, pursuant to the Transaction Documents, the Issuer and U.S. Bank
Trust National Association, as Owner Trustee, are required to perform certain
duties in connection with (i) the Notes, (ii) the Collateral and (iii) the
Certificates;
WHEREAS, the Issuer and the Owner Trustee desire to have the
Administrator perform certain of the duties of the Issuer and the Owner Trustee
referred to in the preceding clause, and to provide such additional services
consistent with the terms of this Agreement and the Transaction Documents as the
Issuer and the Owner Trustee may from time to time request; and
WHEREAS, the Administrator has the capacity to provide the services
required hereby and is willing to perform such services for the Issuer and the
Owner Trustee on the terms set forth herein.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties agree as follows:
1. Certain Definitions. Certain capitalized terms used in this Agreement
are defined in and shall have the respective meanings assigned to them in
Appendix A to the Indenture, dated as of November [ ], 2002 (the "Indenture"),
between the Issuer and the Indenture Trustee. The rules of construction set
forth in Appendix A to the Indenture shall be applicable to this Agreement.
2. Duties of the Administrator.
(a) Duties with Respect to the Indenture and the Depository
Agreement. The Administrator agrees to perform its duties as
Administrator and the duties of the Issuer and the Owner Trustee
under the Indenture and the Depository Agreement. In addition,
the Administrator shall consult with the Owner Trustee regarding
the duties of the Issuer and the Owner Trustee under the
Indenture and the Depository Agreement. The Administrator shall
monitor the performance of the Issuer and shall advise the Owner
Trustee when action is necessary to comply with the Issuer's or
the Owner Trustee's duties under the Indenture and the Depository
Agreement. The Administrator 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, notices and opinions as it
shall be the duty of the Issuer or the Owner Trustee to prepare,
file or deliver pursuant to the Indenture and the Depository
Agreement. In furtherance of the foregoing, the Administrator
shall take all appropriate action that it is the duty of the
Administrator, Issuer or the Owner Trustee to take pursuant to
the Indenture and the Depository Agreement, including without
limitation such actions as are required with respect to the
following matters under the Indenture (parenthetical section
references are to sections of the Indenture):
(i) directing the Indenture Trustee to authenticate and
deliver the Notes for original issue (Section 2.2);
(ii) pending the preparation of Definitive Notes, directing
the Indenture Trustee to authenticate and deliver
temporary Notes (Section 2.3);
(iii) if temporary Notes are issued, causing Definitive
Notes to be prepared without unreasonable delay
(Section 2.3);
(iv) causing the Note Register to be kept (Section 2.4);
(v) if a Person other than the Indenture Trustee is
appointed as Note Registrar, giving the Indenture
Trustee prompt written notice of such appointment and
the location, and any change in such location, of the
Note Register (Section 2.4);
(vi) directing the Indenture Trustee to authenticate and
deliver, in exchange for or in lieu of any mutilated,
destroyed, lost or stolen Note, a replacement Note
(Section 2.5);
(vii) delivering at any time to the Indenture Trustee for
cancellation any Notes previously authenticated and
delivered under the Indenture that the Issuer may have
acquired in any manner whatsoever (Section 2.7);
(viii) directing that cancelled Notes be destroyed or
returned to the Issuer (Section 2.7);
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(ix) directing the Indenture Trustee to release property
from the lien of the Indenture (Section 2.8);
(x) advising the Indenture Trustee in writing that the
Clearing Agency is no longer willing or able to
properly discharge its responsibilities as described
in the Depository Agreement (Section 2.11);
(xi) advising the Indenture Trustee in writing that the
Administrator elects to terminate the book-entry
system through the Clearing Agency (Section 2.11);
(xii) if Definitive Notes are issued and the Indenture
Trustee is not the Note Registrar, furnishing or
causing to be furnished to the Indenture Trustee a
list of the names and addresses of the Noteholders
(Section 2.11);
(xiii) directing the Indenture Trustee to appoint one or more
Authenticating Agents with power to act on behalf of
the Issuer (Section 2.12);
(xiv) appointing the Indenture Trustee as agent for the
Issuer to receive all surrenders, notices and demands
in respect of the Notes (Section 3.2);
(xv) causing each Paying Agent other than the Indenture
Trustee to execute and deliver to the Indenture
Trustee the instrument specified in the Indenture
regarding the duties of the Paying Agent (Section
3.3);
(xvi) directing any Paying Agent to pay to the Indenture
Trustee all sums held in trust by such Paying Agent
(Section 3.3);
(xvii) obtaining and maintaining, for the benefit of the
Indenture Trustee on behalf of the Noteholders, a
first lien on and a first priority, perfected security
interest in the Trust Estate (Section 3.5);
(xviii) preparing for execution (if necessary) and delivery of
all such supplements and amendments to the Indenture
and all such financing statements, continuation
statements, instruments of further assurance and other
instruments and taking such other action necessary or
advisable to protect the Trust Estate (Section 3.5);
(xix) designating the Indenture Trustee as the Issuer's
agent and attorney-in-fact to execute all financing
statements, continuation statements or other
instruments required to be executed (if any) pursuant
to the Indenture (Section 3.5);
(xx) furnishing the Closing Date to the Indenture Trustee
an Opinion of Counsel regarding the Trust Estate
(Section 3.6);
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(xxi) furnishing to the Indenture Trustee an annual Opinion
of Counsel regarding the Trust Estate (Section 3.6);
(xxii) punctually performing and observing all of the
Issuer's obligations and agreements contained in the
Indenture, the other Transaction Documents and the
instruments and agreements included in the Trust
Estate, including filing or causing to be filed all
UCC financing statements and continuation statements
required to be filed by the terms of the Indenture and
the other Transaction Documents in accordance with and
within the time periods provided for therein (Section
3.7);
(xxiii) delivering annually to the Indenture Trustee and each
Rating Agency an Officer's Certificate regarding the
Issuer's compliance with the Indenture (Section 3.9);
(xxiv) filing with the Indenture Trustee and the Commission
copies of the annual reports and such other
information, documents and reports as the Issuer may
be required to file with the Commission (Section 3.9);
(xxv) filing with the Indenture Trustee and the Commission
in accordance with rules and regulations prescribed
from time to time by the Commission such other
information, documents and reports with respect to
compliance by the Issuer with the conditions and
covenants of the Indenture as may be required from
time to time by such rules and regulations (Section
3.9);
(xxvi) supplying to the Indenture Trustee such summaries of
any information, documents and reports required to be
filed by the Issuer pursuant to the Indenture as may
be required pursuant to rules and regulations
prescribed from time to time by the Commission
(Section 3.9);
(xxvii) giving the Indenture Trustee and each Rating Agency
prompt written notice of each Indenture Default under
the Indenture (Section 3.11);
(xxviii) upon request of the Indenture Trustee, executing and
delivering such further instruments and doing such
further acts as may be reasonably necessary or proper
to carry out more effectively the purposes of the
Indenture (Section 3.12);
(xxix) on the Closing Date, delivering or causing to be
delivered to the Indenture Trustee the Transaction
SUBI Certificate (Section 3.13);
(xxx) complying with the requirements of all applicable
laws, the non-compliance with which would,
individually or in the aggregate, materially and
adversely affect the ability of the Issuer to perform
its obligations under the Notes, the Indenture or any
other Transaction Document (Section 3.14);
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(xxxi) promptly delivering to the Indenture Trustee and each
Rating Agency written notice in the form of an
Officer's Certificate of any Indenture Default, its
status and what action the Issuer is taking or
proposes to take with respect thereto (Section 5.1);
(xxxii) at least 15 days before the record date for any
payment to Noteholders pursuant to the Indenture,
mailing to each Noteholder and the Indenture Trustee a
notice that states the record date, the payment date
and the amount to be paid (Section 5.4);
(xxxiii) in connection with any action as to which Noteholders
are entitled to vote or consent under the Indenture
and the Notes, setting a record date for purposes of
determining the identity of Noteholders entitled to
vote or consent in accordance with TIA Section 316(c)
(Section 5.6);
(xxxiv) taking all such lawful action as the Indenture Trustee
may request to compel or secure the performance and
observance by the Servicer of its obligations to the
Issuer under or in connection with the Servicing
Agreement and the Transaction SUBI Servicing
Supplement, in accordance with the terms thereof, and
exercising any and all rights, remedies, powers and
privileges lawfully available to the Issuer under or
in connection with each such agreement to the extent
and in the manner directed by the Indenture Trustee
(Section 5.16);
(xxxv) promptly appointing a successor Indenture Trustee upon
the resignation or required removal of the Indenture
Trustee, or the failure of the Noteholders to appoint
a successor Indenture Trustee following the removal
without cause of the Indenture Trustee (Section 6.8);
(xxxvi) petitioning any court of competent jurisdiction for
the appointment of a successor Indenture Trustee if a
successor Indenture Trustee does not take office
within 45 days after the retiring Indenture Trustee
resigns or is removed (Section 6.8);
(xxxvii) acting jointly with the Indenture Trustee, executing
and delivering all instruments to appoint one or more
Persons to act as a co-trustee or co-trustees, or
separate trustee or separate trustees, of all or any
part of the Collateral, and vesting in such Person or
Persons, in such capacity and for the benefit of the
Noteholders, such title to the Trust Estate or any
part thereof and, subject to the provisions of the
Indenture, such powers, duties, obligations, rights
and trusts as the Indenture Trustee and the
Administrator may consider necessary or desirable
(Section 6.10);
(xxxviii) accepting the resignation of or removing any separate
trustee or co-trustee (Section 6.10);
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(xxxix) furnishing or causing to be furnished to the Indenture
Trustee (i) not more than five days after each Record
Date a list, in such form as the Indenture Trustee may
reasonably require, of the names and addresses of the
Noteholders as of such Record Date and (ii) at such
other times as the Indenture Trustee may request in
writing, within 30 days after receipt any such
request, a list of similar form and content as of a
date not more than ten days prior to the time such
list is furnished; provided, however, that so long as
the Indenture Trustee is the Note Registrar or the
Notes are issued as Book-Entry Notes, no such list
shall be required to be furnished to the Indenture
Trustee (Section 7.1);
(xl) causing the Servicer to deliver the Servicer
Certificate to the Indenture Trustee, the Owner
Trustee, the Administrator and each Paying Agent on
each Determination Date (Section 8.3);
(xli) directing the investment and reinvestment by the
Indenture Trustee of the funds in the Reserve Account
and the Collection Account in Permitted Investments
(Section 8.5);
(xlii) providing to the Indenture Trustee and the Owner
Trustee at least 20 days' prior notice of the
redemption of the Notes (Section 10.1);
(xliii) notifying each Rating Agency upon the redemption of
the Notes (Section 10.2);
(xliv) furnishing to the Indenture Trustee and each Rating
Agency (i) an Officer's Certificate stating that all
conditions precedent, if any, provided for in the
Indenture relating to any proposed action under any
provision of the Indenture have been complied with,
(ii) an Opinion of Counsel stating that in the opinion
of such counsel all such conditions precedent, if any,
have been complied with, and (iii) in the case of
conditions precedent compliance with which is subject
to verification by accountants, a certificate or
opinion of an accountant that satisfies TIA Section
314(c)(3), except that, in the case of any such
application or request as to which the furnishing of
such documents is specifically required by any
provision of this Indenture, no additional certificate
or opinion need be furnished (Section 11.1);
(xlv) prior to the deposit of any Collateral or other
property or securities with the Indenture Trustee that
is to be made the basis for the release of any
property or securities subject to the lien of the
Indenture, furnishing to the Indenture Trustee an
Officer's Certificate certifying or stating the
opinion of each Person signing such certificate as to
the fair value (within 90 days of such deposit) to the
Issuer of the Collateral or other property or
securities to be so deposited (Section 11.1);
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(xlvi) whenever the Administrator is required to furnish to
the Indenture Trustee an Officer's Certificate
certifying or stating the opinion of any signer
thereof as to the matters described in the immediately
preceding clause, also delivering to the Indenture
Trustee an Independent Certificate as to the same
matters (Section 11.1);
(xlvii) other than with respect to any release described in
clause (A) or (B) of Section 11.1(b)(v) of the
Indenture, whenever any property or securities are to
be released from the lien of the Indenture, furnishing
to the Indenture Trustee an Officer's Certificate
certifying or stating the opinion of each Person
signing such certificate as to the fair value (within
90 days of such release) of the property or securities
proposed to be released and stating that, in the
opinion of such Person, the proposed release will not
impair the security under the Indenture in
contravention of the provisions thereof (Section
11.1);
(xlviii) whenever the Issuer is required to furnish to the
Indenture Trustee an Officer's Certificate certifying
or stating the opinion of any signer thereof as to the
matters described in the immediately preceding clause,
also furnishing to the Indenture Trustee an
Independent Certificate as to the same matters
(Section 11.1); and
(xlix) if the Indenture is subject to recording in any
appropriate public recording offices, effecting such
recording accompanied by an Opinion of Counsel
(reasonably acceptable to the Indenture Trustee) to
the effect that such recording is necessary either for
the protection of the Noteholders or any other Person
secured under the Indenture or for the enforcement of
any right or remedy granted to the Indenture Trustee
under the Indenture (Section 11.13).
(b) Duties with Respect to the Trust Agreement. The Administrator
shall perform the duties of the Administrator specified in
Section 10.2 of the Trust Agreement required to be performed in
connection with the resignation or removal of the Owner Trustee,
and any other duties expressly required to be performed by the
Administrator under the Trust Agreement.
(c) Compensation and Indemnification. The Administrator will:
(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,
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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
(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.
(d) Additional Duties.
(i) In addition to the duties of the Administrator set
forth above, the Administrator shall 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, tax returns, instruments,
certificates, notices and opinions as it shall be the
duty of the Issuer or the Owner Trustee to prepare,
file or deliver pursuant to the Transaction Documents
or any securities laws, and at the request of the
Owner Trustee shall take all appropriate action that
it is the duty of the Issuer or the Owner Trustee to
take pursuant to the Transaction Documents or any
securities laws. Subject to Section 7 of this
Agreement, and in accordance with the directions of
the Owner Trustee, the
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Administrator shall administer, perform or supervise
the performance of such other activities in connection
with the Collateral (including the Transaction
Documents) as are not covered by any of the foregoing
provisions and as are expressly requested by the Owner
Trustee and are reasonably within the capability of
the Administrator. The Administrator shall send a copy
to the Owner Trustee of all such documents, filings,
tax returns, instruments, certificates, notices or
opinions which the Administrator is required to
prepare, file or deliver hereunder on behalf of the
Issuer. Notwithstanding anything to the contrary
herein or in any Transaction Document, the Owner
Trustee shall not be required to execute, deliver or
certify on behalf of the Issuer or any other Person
any filings, certificates, affidavits or other
instruments required under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of
2002.
(ii) In carrying out the foregoing duties or any of its
other obligations under this Agreement, the
Administrator may enter into transactions with or
otherwise deal with any of its Affiliates; provided,
however, that the terms of any such transactions or
dealings shall be in accordance with any directions
received from the Issuer or the Owner Trustee and
shall be, in the Administrator's opinion, no less
favorable to the Issuer or the Owner Trustee than
would be available from Persons that are not
Affiliates of the Administrator.
(e) 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 Owner Trustee of the proposed action and
the Owner Trustee 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, Paying Agent or Indenture
Trustee of its obligations under the Indenture;
and
(C) the removal of the Indenture Trustee.
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(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 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 or the Owner Trustee directs the Administrator
not to take on its behalf.
3. Successor Servicer and Administrator. The Issuer shall undertake, as
promptly as possible after the termination of the Servicer pursuant to Article
VIII of the Transaction SUBI Servicing Supplement, to enforce the provisions of
Article VIII of the Transaction SUBI Servicing Supplement with respect to the
appointment of a successor Servicer. Such successor Servicer shall, upon
compliance with Sections 10(e)(ii) and (iii) of this Agreement, become the
successor Administrator hereunder.
4. 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 by the Issuer and the
Transferor at any time during normal business hours.
5. Compensation. As compensation for the performance of the
Administrator's obligations under this Agreement and as reimbursement for its
expenses related thereto, the Servicer shall pay the Administrator the
Administration Fee in accordance with Section 8.4 of the Indenture.
6. Additional Information To Be Furnished to the Issuer. The
Administrator shall furnish to the Issuer from time to time such additional
information regarding the Collateral as the Issuer shall reasonably request.
7. 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 or the Owner Trustee 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 represent the Issuer or the Owner Trustee in any way and
shall not otherwise be deemed an agent of the Issuer or the Owner Trustee.
8. No Joint Venture. Nothing contained in this Agreement (a) shall
constitute the Administrator and either of the Issuer or the Owner Trustee as
members of any partnership, joint venture, association, syndicate,
unincorporated business or other separate entity, (b) shall be construed to
impose any liability as such on any of them or (c) 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.
9. Other Activities of 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 or entity even though such Person or entity may engage in business
activities similar to those of the Issuer, the Owner Trustee or the Indenture
Trustee.
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10. Term of Agreement, Resignation and Removal of Administrator.
(a) This Agreement shall continue in force until the dissolution of
the Issuer, upon which event this Agreement shall automatically
terminate.
(b) Subject to Section 10(e), the Administrator may resign its duties
hereunder by providing the Issuer with at least 60 days' prior
written notice.
(c) Subject to Section 10(e), the Issuer may remove the Administrator
without cause by providing the Administrator with at least 60
days' prior written notice.
(d) Subject to Section 10(e), at the sole option of the Issuer, the
Administrator may be removed immediately upon written notice of
termination from the Issuer to the Administrator if any of the
following events (each, an "Administrator Replacement Event")
shall occur:
(i) any failure by the Administrator to duly observe or
perform in any material respect any of its covenants or
agreements in this Agreement, which failure materially and
adversely affects the rights of any holder of the
Transaction SUBI Certificate or the Noteholders, and which
continues unremedied for 90 days after discovery thereof
by an 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 Outstanding Note Amount, voting together as a single
class;
(ii) any representation or warranty of the Administrator made
in this Agreement or any other Transaction Document to
which the Administrator is a party or by which it is bound
shall prove to be incorrect in any material respect when
made, which failure materially and adversely affects the
rights of any holder of the Transaction SUBI Certificate
or the Noteholders, and such failure continues unremedied
for 90 days after discovery thereof by an 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 Outstanding Note
Amount, 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
(iii) the Administrator suffers a Bankruptcy Event;
provided, however, that a delay in or failure of performance referred to under
clauses (i) or (ii) 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.
The Administrator agrees that if any of the events specified in clauses
(ii) or (iii) of this Section 10(d) shall occur, it shall give written notice
thereof to the Issuer and the Indenture Trustee within seven days after the
occurrence of such event.
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(e) No resignation or removal of the Administrator pursuant to this
Section 10 shall be effective until (i) a successor Administrator
shall have been appointed by the Issuer, (ii) such successor
Administrator shall have agreed in writing to be bound by the
terms of this Agreement in the same manner as the Administrator
is bound hereunder, and (iii) the Rating Agency Condition has
been satisfied with respect to such proposed appointment.
11. Action upon Termination, Resignation or Removal. Promptly upon the
effective date of termination of this Agreement pursuant to Section 10(a) or the
resignation or removal of the Administrator pursuant to Section 10(b) or (c),
respectively, the Administrator shall be entitled to be paid all fees and
reimbursable expenses accruing to it to the effective date of such termination,
resignation or removal. The Administrator shall forthwith upon such termination
pursuant to Section 10(a) deliver to the Issuer all property and documents of or
relating to the Collateral then in the custody of the Administrator. In the
event of the resignation or removal of the Administrator pursuant to Section
10(b) or (c), respectively, the Administrator shall cooperate with the Issuer
and take all reasonable steps requested to assist the Issuer in making an
orderly transfer of the duties of the Administrator.
12. Notices. All demands, notices and communications upon or to the
Issuer, the Owner Trustee, the Administrator or the Indenture Trustee shall be
delivered as specified in Section 11.4 of the Indenture.
13. Amendment.
(a) Any term or provision of this Agreement may be amended by the
parties hereto; 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.
(b) Any term or provision of this Agreement may be amended without
the consent of the Noteholders or any other Person in any
respect, including (without limitation) to cure any ambiguity,
correct or supplement any provision in this Agreement, add any
provisions to this Agreement, change in any manner or eliminate
any of the provisions in this Agreement or modify the rights of
the parties to this Agreement; provided that such amendment shall
not, in the good faith judgment of the Administrator and the
Issuer, materially and adversely affect the interests of the
Noteholders.
(c) Notwithstanding anything herein to the contrary, any term or
provision of this Agreement may be amended 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 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.
(d) Prior to the execution of any such amendment, the Buyer shall
furnish at least ten (10) days' prior written notification (or,
if ten (10) days' advance notice is
12
impracticable, as much advance notice as is practicable) of the
substance of such amendment to each Rating Agency; and no later
than ten (10) Business Days after the execution of any such
amendment or consent, the Buyer shall furnish a copy of such
amendment or consent to each Rating Agency, the Owner Trustee and
the Indenture Trustee.
(e) Prior to the execution of any amendment to this Agreement, 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 this
Agreement and that all conditions precedent to the execution and
delivery of such amendment have been satisfied.
14. Successors and Assigns. This Agreement may not be assigned by the
Administrator unless such assignment is previously consented to in writing by
the Issuer and the Owner Trustee and subject to the satisfaction of the Rating
Agency Condition. An assignment with such consent and satisfaction, if accepted
by the assignee, shall bind the assignee hereunder in the same manner as the
Administrator is bound hereunder. This Agreement shall bind any successors or
assigns of the parties hereto.
15. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS OR ANY OTHER
JURISDICTION'S CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.
16. Headings. The section headings hereof have been inserted for
convenience of reference only and shall not define or limit any of the terms or
provisions hereof.
17. Separate Counterparts. This Agreement may be executed by the parties
in separate counterparts, each of which when so executed and delivered shall be
an original, but all such counterparts shall together constitute but one and the
same instrument.
18. 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 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 the
rights of the Holders thereof.
19. Not Applicable to VCI in Other Capacities. Nothing in this Agreement
shall affect any obligation VCI may have in any other capacity.
20. Limitation of Liability of Owner Trustee and Indenture Trustee.
(a) Notwithstanding anything contained herein to the contrary, this
instrument has been executed by U.S. Bank Delaware not in its
individual capacity but solely as
13
Owner Trustee and in no event shall U.S. Bank Delaware have any
liability for the representations, warranties, covenants,
agreements or other obligations of the Issuer hereunder or in any
of the certificates, notices or agreements delivered pursuant
hereto, as to all of which recourse shall be had solely to the
assets of the Issuer. For all purposes of this Agreement, in the
performance of any duties or obligations of the Issuer hereunder,
the Owner Trustee shall be subject to, and entitled to the
benefits of, the terms and provisions of the Trust Agreement.
(b) Notwithstanding anything contained herein to the contrary, this
Agreement has been executed by The Bank of New York not in its
individual capacity but solely in its capacity as Indenture
Trustee and in no event shall The Bank of New York have any
liability for the representations, warranties, covenants,
agreements or other obligations of the Issuer hereunder or in any
of the certificates, notices or agreements delivered pursuant
hereto, as to all of which recourse shall be had solely to the
assets of the Issuer.
21. Third-Party Beneficiary. The Owner Trustee is a third-party
beneficiary to this Agreement and is entitled to the rights and benefits
hereunder and may enforce the provisions hereof as if it were a party hereto.
22. 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 11.4 of the Indenture; 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.
23. 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
14
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.
24. Each SUBI Separate; Assignees of SUBI. Each party hereto
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, 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, any Other SUBI, any
Other 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 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.
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[Signature Page Follows]
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IN WITNESS WHEREOF, the parties have caused this Administration
Agreement to be duly executed by their respective officers as of the day and
year first above written.
VOLKSWAGEN AUTO LEASE TRUST 2002-A
By: U.S. Bank Trust National Association, not
in its individual capacity but solely as
Owner Trustee
By:
------------------------------------------
Name:
Title:
VW CREDIT, INC.,
as Administrator
By:
------------------------------------------
Name:
Title:
By:
------------------------------------------
Name:
Title:
THE BANK OF NEW YORK,
as Indenture Trustee
By:
------------------------------------------
Name:
Title:
S-1
