EXHIBIT 10.5
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AMENDED AND RESTATED
ADMINISTRATION AGREEMENT
AMONG
VOLKSWAGEN CREDIT AUTO MASTER OWNER TRUST,
as Issuer
AND
VW CREDIT, INC.,
as Administrator
AND
JPMORGAN CHASE BANK, N.A.,
as Indenture Trustee
DATED AS OF _______ , 200_
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Administration Agreement
THIS AMENDED AND RESTATED ADMINISTRATION AGREEMENT (as amended,
supplemented or modified from time to time, this "Agreement") is dated as of
____ , 200_ , among VOLKSWAGEN CREDIT AUTO MASTER OWNER TRUST, a Delaware
statutory trust (the "Issuer"), VW CREDIT, INC., a Delaware corporation, as
administrator (the "Administrator"), and JPMORGAN CHASE BANK, N.A., a national
banking association (as successor in interest to Bank One, National
Association), 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, the Administrator and the Indenture Trustee are
parties to that certain Administration Agreement dated as of August 10, 2000
(the "Existing Agreement");
WHEREAS, the Transferor holds a Residual Interest in the Trust
pursuant to the Trust Agreement;
WHEREAS, pursuant to the Basic Documents, the Issuer and The Bank of
New York, as Owner Trustee, are required to perform certain duties in connection
with (i) the Notes, (ii) the Collateral and (iii) the Residual Interest;
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 Basic Documents as the
Issuer and the Owner Trustee 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 and the
Owner Trustee on the terms set forth herein; and
WHEREAS, the parties hereto desire to amend the Existing Agreement,
and to restate it in its entirety.
NOW, THEREFORE, in consideration of the mutual agreements herein
contained, the Existing Agreement is hereby amended and restated in its entirety
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 Part I of Appendix A to the Amended and Restated Trust Sale and Servicing
Agreement dated as of _______ , 200_ among the Issuer, the Transferor and the
Servicer (as amended, modified or supplemented from time to time, the "Trust
Sale and Servicing Agreement"). The rules of construction set forth in Part II
of Appendix A to the Trust Sale and Servicing Agreement shall be applicable to
this Agreement. All references herein to Sections are to Sections of this
Agreement unless otherwise specified.
2. Duties of the Administrator.
Administration Agreement
(a) Duties with Respect to the Basic Documents. The Administrator
shall perform all of its duties as Administrator under this
Agreement and the other Basic Documents and the duties and
obligations of the Issuer and the Owner Trustee (in its capacity as
owner trustee) under the Basic Documents; provided, however, except
as otherwise provided in the Basic Documents, that the Administrator
shall have no obligation to make any payment required to be made by
the Issuer under any Basic Document. In addition, the Administrator
shall consult with the Issuer and the Owner Trustee regarding its
duties and obligations under the Basic 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 Basic Documents. 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,
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 Basic 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
Basic 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 Basic 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 take, 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 Basic 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 amendment of or any supplement to the Indenture
(other than pursuant to or in connection with a Series
Supplement);
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(B) 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;
(C) the amendment, change or modification of any of the
Basic Documents;
(D) the appointment of successor Note Registrars, successor
Paying Agents and successor Indenture Trustees pursuant
to the Indenture or the appointment of 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
(E) 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 under the Basic
Documents, (y) except as explicitly provided in the Basic
Documents, sell the Trust Estate pursuant to the Basic
Documents or (z) take any other action that the Issuer directs
the Administrator not to take on its behalf.
3. Successor Servicer and Administrator. The Issuer shall undertake,
as promptly as possible after the giving of notice of termination to the
Servicer of the Servicer's rights and powers pursuant to Section 7.1 of the
Trust Sale and Servicing Agreement, to enforce the provisions of Sections 7.1
and 7.2 of the Trust Sale and Servicing Agreement with respect to the
appointment of a successor Servicer. Such successor Servicer shall, upon
compliance with Sections 10(e)(ii) and (iii) hereof, 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 a monthly fee
in the amount of $ .
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
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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.
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 Sections 10(e) and 10(f), the Administrator may
resign its duties hereunder by providing the Issuer with at least 60
days' prior written notice.
(c) Subject to Sections 10(e) and 10(f), the Issuer may remove the
Administrator without cause by providing the Administrator with at
least 60 days' prior written notice.
(d) The occurrence of any one of the following events (each, an
"Administrator Replacement Event") shall also entitle the Issuer,
subject to Section 23 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 of any Outstanding Series,
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 related 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
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Issuer or the Noteholders of any Outstanding Series, 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 related Outstanding Notes,
voting together as a single class;
(iii) any representation or warranty of the Administrator made in
any Basic Document to which the Administrator is a party or by
which it is 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 of any
Outstanding Series, 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 related Outstanding Notes, voting together as a
single class (it being understood that any repurchase of a
Receivable by VCI pursuant to Section 2.2 of the Receivables
Purchase Agreement shall be deemed to remedy any incorrect
representation or warranty with respect to such Receivable);
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.
(e) If an Administrator Replacement Event shall have occurred,
the Issuer may, subject to Section 23 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 23 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 23 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
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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.
(f) The Issuer, subject to Section 23 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.
11. Action upon Termination, Resignation or Removal. Promptly upon
the effective date of termination of this Agreement pursuant to Section 10, or
the resignation or removal of the Administrator pursuant to Section 10, 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.
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 Appendix B of the Trust Sale and Servicing Agreement.
13. Amendments.
(a) Any term or provision of this Agreement may be amended by the
Administrator without the consent of the Indenture Trustee, any
Noteholder 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 any Notes
of each Outstanding Series, voting as a single class, (ii) any
amendment that materially and adversely affects the interests of the
Residual Interestholder, the Indenture Trustee, any Enhancement
Provider or the Owner Trustee shall require the prior written
consent of the Persons whose interests are materially and adversely
affected. An amendment shall be deemed not to materially and
adversely affect the interests of the Noteholders if the Rating
Agency Condition is satisfied with respect to such amendment. The
consent of the Residual Interestholders 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
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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 of any Outstanding
Series Notes 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, any Enhancement Provider and
the Indenture Trustee.
(e) Prior to the execution of any amendment to this Agreement, the
Issuer, the Owner Trustee any Enhancement Provider 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.
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 for each then outstanding series of Notes in respect
thereof. 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. Subject to the foregoing, 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, OTHER THAN SECTION 5-1401 OF THE NEW
YORK GENERAL OBLIGATIONS LAW, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
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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 The Bank of New York, not in
its individual capacity but solely as Owner 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. 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 Article VI of the Trust Agreement.
(b) Notwithstanding anything contained herein to the contrary,
this Agreement has been executed by JPMorgan Chase Bank, N.A., not
in its individual capacity but solely in its capacity as Indenture
Trustee and in no event shall JPMorgan Chase Bank, N.A. 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:
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(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement, any documents executed and
delivered in connection herewith or for recognition and enforcement
of any judgment in respect thereof, to the non-exclusive general
jurisdiction of the courts of the State of New York, the courts of
the United States of America for the Southern District of New York,
and appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought in
such courts and waives any objection that it may now or hereafter
have to the venue of such action or proceeding in any such court or
that such action or proceeding was brought in an inconvenient court
and agrees not to plead or claim the same;
(c) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered
or certified mail (or any substantially similar form of mail),
postage prepaid, to such Person at its address determined in
accordance with Appendix B to the Trust Sale and Servicing
Agreement; and
(d) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall
limit the right to xxx in any other jurisdiction.
23. 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 of all of the Issuer's rights under this Agreement. In addition, the
Administrator hereby 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.
24. Nonpetition Covenant. With respect to the Transferor and the
Issuer (each a "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
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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.
[signature page to follow]
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
VOLKSWAGEN CREDIT AUTO MASTER OWNER
TRUST, as Issuer
By: The Bank of New York, not in
its individual capacity, but
solely as Owner Trustee
By: _______________________________
Name:
Title:
JPMORGAN CHASE BANK, N.A.,
as Indenture Trustee
By: _______________________________
Name:
Title:
VW CREDIT, INC., as Administrator
By: _______________________________
Name:
Title:
By: _______________________________
Name:
Title:
Administration Agreement
