EXHIBIT 10.10
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ADMINISTRATION AGREEMENT
AMONG
VOLKSWAGEN AUTO LOAN ENHANCED TRUST 20[__]-[__],
AS ISSUER
VW CREDIT, INC.,
AS ADMINISTRATOR
AND
[__________],
AS INDENTURE TRUSTEE
DATED AS OF [__________]
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20[__]-[__] Administration Agreement
TABLE OF CONTENTS
PAGE
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1. Duties of the Administrator.......................................... 1
2. Records.............................................................. 2
3. Compensation; Payment of Fees and Expenses........................... 3
4. Independence of the Administrator.................................... 3
5. No Joint Venture..................................................... 3
6. Other Activities of the Administrator................................ 3
7. Representations and Warranties of the Administrator.................. 3
8. Administrator Replacement Events; Termination of the Administrator... 4
9. Action upon Termination or Removal................................... 6
10. Liens................................................................ 6
11. Notices.............................................................. 6
12. Amendments........................................................... 6
13. Governing Law; Submission to Jurisdiction............................ 7
14. Headings............................................................. 8
15. Counterparts......................................................... 8
16. Severability of Provisions........................................... 8
17. Not Applicable to VCI in Other Capacities............................ 8
18. Benefits of the Administration Agreement............................. 8
19. Assignment........................................................... 8
20. Nonpetition Covenant................................................. 8
21. Limitation of Liability.............................................. 9
-i-
THIS ADMINISTRATION AGREEMENT (this "Agreement") dated as of [___________],
is between VOLKSWAGEN AUTO LOAN ENHANCED TRUST 20[__]-[__], a Delaware statutory
trust (the "Issuer"), VW CREDIT, INC., a Delaware corporation, as administrator
("VCI" or in its capacity as administrator, the "Administrator"), and
[__________], 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 Sale and
Servicing Agreement dated as of [__________] (the "Sale and Servicing
Agreement") by and among Volkswagen Auto Lease Underwritten Funding, LLC, as
seller, the Issuer, VCI, as servicer, and the Indenture Trustee.
WITNESSETH:
WHEREAS, the Issuer has issued the Notes pursuant to the Indenture and the
Certificate pursuant to the Trust Agreement and has entered into certain
agreements in connection therewith, including, (i) the Sale and Servicing
Agreement, (ii) the Indenture, (iii) the Note Depository Agreement and (iv) the
Trust Agreement (each of the agreements referred to in clauses (i) through (iv)
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
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 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 Seller and the Indenture Trustee at any time during normal
business hours.
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3. Compensation; Payment of Fees and Expenses. 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 $30,000 annually which shall be solely an obligation of the
Servicer. The Administrator shall pay all expenses incurred by it in connection
with its activities hereunder.
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 or affect the
enforceability or collectibility of the Receivables or any other part of
the Collateral.
(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 have a material adverse effect on the enforceability or
collectibility of the Receivables or any other part of the Collateral or
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 corporations 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, 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 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;
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(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 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 Receivable by VCI pursuant to Section 3.3 of the
Purchase Agreement, by the Seller pursuant to Section 2.3 of the Sale
and Servicing Agreement or by the Administrator pursuant to Section
3.6 of the Sale and Servicing 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.
(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
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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.
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 by the Servicer 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. All demands, notices and communications hereunder shall be in
writing and shall be delivered or mailed by registered or certified first-class
United States mail, postage prepaid, hand delivery, prepaid courier service, or
by telecopier, and addressed in each case as specified on Schedule II to the
Sale and Servicing Agreement or at such other address as shall be designated by
any of the foregoing in a written notice to the other parties hereto. Delivery
shall occur only upon receipt or reported tender of such communication by an
officer of the recipient entitled to receive such notices located at the address
of such recipient for notices hereunder.
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 Issuer, the Owner Trustee or any other Person; provided that such
amendment shall not, as evidenced by an Opinion of Counsel delivered to the
Indenture Trustee and the Owner Trustee materially and adversely affect the
interests of the Indenture Trustee, the Noteholders or the Owner Trustee.
(b) Any term or provision of this Agreement may be amended by the
Administrator but without the consent of the Indenture Trustee, any
Noteholder, the Issuer, the Owner Trustee or any other Person to add,
modify or eliminate any provisions as may be necessary or advisable in
order to enable the Seller, the Servicer or any of their Affiliates 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.
(c) This Agreement may also be amended from time to time by the
Issuer, the Administrator and the Indenture Trustee, with the consent of
the Holders of Notes evidencing not less than a majority of the aggregate
principal amount of the Outstanding Notes, voting as a single class, for
the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Agreement or of modifying in any
manner the rights of the Noteholders. It will not be necessary for the
consent of Noteholders to approve the particular form of any proposed
amendment or consent, but it will be sufficient if such consent approves
the substance thereof. The manner of obtaining such consents (and any other
consents of Noteholders provided for in this Agreement) and of evidencing
the authorization of the execution thereof by Noteholders
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will be subject to such reasonable requirements as the Indenture Trustee
may prescribe, including the establishment of record dates pursuant to the
Note Depository Agreement.
(d) Prior to the execution of any such amendment, the Administrator
shall provide written notification of the substance of such amendment to
each Rating Agency and the Owner Trustee; and promptly after the execution
of any such amendment or consent, the Administrator 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
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, OTHER THAN
SECTIONS 5-1401 AND 5-1402 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.
(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, 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
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(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 sue 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 Section 6.10 of 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 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.
20. Nonpetition Covenant. Each party hereto agrees that, prior to the date
which is one year and one day after payment in full of all obligations of each
Bankruptcy Remote Party in respect of all securities issued by any Bankruptcy
Remote Party (i) such party shall not authorize any 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
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commenced against such Bankruptcy Remote Party, or to make a general assignment
for the benefit of, its creditors generally, 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.
21. Limitation of Liability. Notwithstanding anything contained herein to
the contrary, this Agreement has been executed and delivered by [__________],
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.
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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 LOAN ENHANCED
TRUST 20[__]-[__]
By:
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By:
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Name:
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Title:
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S-1
VW CREDIT, INC., as Administrator
By:
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Name:
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Title:
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By:
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Name:
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Title:
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[__________], as Indenture Trustee
By:
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Name:
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Title:
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S-3
Joinder of Servicer:
VW CREDIT, INC., as Servicer, joins in this Agreement solely for purposes of
Section 3.
VW CREDIT, INC., as Servicer
By:
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Name:
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Title:
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By:
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Name:
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Title:
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