EXHIBIT 1.1
VOLKSWAGEN AUTO [LOAN ENHANCED] [LEASE] TRUST 20[__]-[__]
VOLKSWAGEN AUTO LEASE UNDERWRITTEN FUNDING, LLC
(SELLER)
$[______] [__]% AUTO [LOAN] [LEASE] ASSET BACKED CLASS A-1 NOTES
$[______] [__]% AUTO [LOAN] [LEASE] ASSET BACKED CLASS A-2 NOTES
$[______] [__]% AUTO [LOAN] [LEASE] ASSET BACKED CLASS A-3 NOTES
$[______] [__]% AUTO [LOAN] [LEASE] ASSET BACKED CLASS A-4 NOTES
UNDERWRITING AGREEMENT
[______], 20[__]
[___________________________________]
As Representative of the Several
Underwriters
[___________________________________]
Ladies and Gentlemen:
SECTION 1. Introductory. Volkswagen Auto Lease Underwritten Funding, LLC
(the "Seller") proposes to cause Volkswagen Auto [Loan Enhanced] [Lease] Trust
20[__]-[__] (the "Issuer") to transfer $[______] aggregate principal amount of
[__]% Auto Loan Asset Backed Class A-1 Notes (the "Class A-1 Notes"), $[______]
aggregate principal amount of [__]% Auto Loan Asset Backed Class A-2 Notes (the
"Class A-2 Notes"), $[______] aggregate principal amount of [__]% Auto Loan
Asset Backed Class A-3 Notes (the "Class A-3 Notes") and $[______] aggregate
principal amount of [__]% Auto Loan Asset Backed Class A-4 Notes (the "Class A-4
Notes", and together with the Class A-1 Notes, the Class A-2 Notes and the Class
A-3 Notes, the "Notes") to the several underwriters set forth on Schedule I
(each, an "Underwriter" and collectively, the "Underwriters"), for whom you are
acting as representative (the "Representative"). The Notes will be issued
pursuant to an Indenture, dated as of [____] (as amended, supplemented or
modified from time to time, the "Indenture"), between the Issuer and [____], as
indenture trustee (in such capacity, the "Indenture Trustee"). The assets of the
Issuer include, among other things[, motor vehicle retail installment sale
contracts or installment loans secured by a combination of new or used
automobiles or light-duty trucks (the "Receivables") and certain related rights.
The Receivables will be sold to the Issuer by the Seller and will be serviced
for the Issuer by VW Credit, Inc. ("VW Credit"), as servicer (in such capacity,
the "Servicer").] [a special unit of beneficial interest in VW Credit Leasing,
Ltd. (the "Transaction SUBI"), which represents the beneficial interest in a
portfolio of automobile leases, the related leased vehicles and certain related
rights. The Transaction SUBI will be sold to the Issuer by the Seller and will
be serviced for the Issuer by VW Credit Inc. ("VW Credit"), as servicer (in such
capacity, the "Servicer").]
Capitalized terms used but not otherwise defined herein shall have the
meanings set forth in Appendix A to the [Sale and Servicing Agreement, dated as
of [____________] (as amended,
supplemented or modified from time to time, the "Sale and Servicing Agreement"),
among the Servicer, the Issuer, the Seller and the Indenture Trustee]
[Indenture].
SECTION 2. Representations and Warranties. The Seller represents and
warrants to and agrees with you that:
(a) The Seller meets the requirements for use of a Form S-3 under the
Securities Act of 1933, as amended (the "Securities Act"), and has filed with
the Securities and Exchange Commission (the "Commission") a registration
statement, including one or more forms of preliminary prospectus or prospectus
supplement, on Form S-3 (No. 333-[____]) on [____], [and Amendment No. 1 to such
registration statement (filed with the Commission on [____]) for the
registration under the Securities Act of the securities to be registered under
such registration statement, including the Notes. The Seller may have filed one
or more amendments thereto, including a preliminary prospectus relating to the
offering of the Notes, each of which has been furnished to you. The Seller will
file with the Commission either: (i) before the effectiveness of the
Registration Statement (as defined below), a further amendment thereto
(including the form of final prospectus) or (ii) a final prospectus in
accordance with Rules 430A and 424(b), or Rules 415 and 424(b). In the case of a
post-effective filing pursuant to clause (ii), the Seller will have included in
the Registration Statement, as amended at the Effective Time (as defined below),
all information (other than Rule 430A Information (as defined below)) required
by the Securities Act and the rules thereunder to be included in the final
prospectus with respect to the Notes and the offering thereof. The amendment and
form of final prospectus, or final prospectus, filed pursuant to clause (i) or
(ii) shall include all Rule 430A Information and all other required information
with respect to the Notes and, except to the extent that you shall agree in
writing to a modification, shall be in all substantive respects in the form
furnished to you before the Execution Time or, to the extent not completed at
the Execution Time, shall contain only such specific additional information and
other changes (beyond that contained in the latest preliminary prospectus that
has been furnished to you) as the Seller has advised you, before the Execution
Time, will be included or made therein. If the Registration Statement contains
the undertaking specified by Regulation S-K Item 512(a)(2), the Registration
Statement at the Execution Time meets, and at the Effective Time will meet, the
requirements set forth in Rule 415(a)(1)(x) and all applicable rules and
regulations of the Commission (the "Rules and Regulations").
For purposes of this Underwriting Agreement (this "Agreement"), "Effective
Time" means the date and time as of which the Registration Statement, or the
most recent post-effective amendment thereto, if any, was declared effective by
the Commission; and "Effective Date" means the date of the Effective Time. The
form of the final prospectus relating to the Notes as filed with the Commission
pursuant to and in accordance with Rule 424(b), or, if no filing pursuant
thereto is required, the form of the final prospectus included in the
Registration Statement at the Effective Time, is hereinafter referred to as the
"Prospectus". "Execution Time" shall mean the date and time that this Agreement
is executed and delivered by all the parties hereto. "Preliminary Prospectus"
shall mean any preliminary prospectus referred to above and any preliminary
prospectus included in the Registration Statement that at the Effective Time
omits Rule 430A Information. "Rule 430A Information" means information with
respect to the Notes and the offering of the Notes permitted to be omitted from
the Registration Statement when it becomes effective pursuant to Rule 430A.
"Rule 415", "Rule 424", "Rule 430A", "Rule 462" and "Regulation S-K" refer to
such rules or regulations under the Securities Act. Any
2
reference herein to the Registration Statement, a Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 that were filed under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), before the
Effective Time or the issue date of such Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the filing of any document
under the Exchange Act after the Effective Time or the issue date of any
Preliminary Prospectus or the Prospectus, as the case may be; and any reference
herein to the terms "amend", "amendment" or "supplement" with respect to the
Registration Statement, any Preliminary Prospectus or the Prospectus, as the
case may be, shall be deemed to be incorporated therein by reference.
The registration statement on Form S-3, as existing at the Effective Time,
including all information deemed to be a part of such registration statement at
the Effective Time pursuant to Rule 430A(b), and including the exhibits thereto
and any material incorporated by reference therein, is hereinafter referred to
as the "Registration Statement"; provided, however, that if the Seller files a
registration statement and relies on Rule 462(b), 462(c) or 462(d) for such
registration statement to become effective upon filing with the Commission (the
"Rule 462 Registration Statement"), then any reference to the "Registration
Statement" shall be deemed to refer to both the earlier effective registration
statement and the Rule 462 Registration Statement, in each case as amended from
time to time.
(b) At the Execution Time and on the Effective Date, the Registration
Statement did or will, when the Prospectus is first filed (if required) in
accordance with Rule 424(b), and on the Closing Date (as defined below) the
Prospectus (and any supplements thereto) will, comply in all material respects
with the applicable requirements of the Securities Act and the Rules and
Regulations. On the Effective Date, the Registration Statement will not contain
any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and the Prospectus
(together with any supplement thereto): (i) on the Effective Date, if not filed
pursuant to Rule 424(b), did not or will not, or (ii) on the date of any filing
pursuant to Rule 424(b), will not include any untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided, however, that the Seller makes no representations or
warranties as to the information contained in or omitted from the Registration
Statement or the Prospectus (or any supplement thereto) in reliance upon and in
conformity with information furnished in writing to the Seller by any
Underwriter through the Representative specifically for use in connection with
the preparation of the Registration Statement or the Prospectus (or any
supplement thereto).
(c) As of the Closing Date and as of the date hereof, the Seller's
representations and warranties in the Transaction Documents will be true and
correct.
(d) This Agreement has been duly authorized, executed and delivered by the
Seller and VW Credit.
(e) Neither the Seller nor VW Credit nor anyone acting on their behalf has
taken any action that would require registration of the Seller[, the Origination
Trust] or the Issuer under the Investment Company Act of 1940, as amended (the
"Investment Company Act"); nor will the
3
Seller nor VW Credit act, nor has either of them authorized nor will either of
them authorize any person to act, in such manner.
(f) The Indenture has been duly qualified under the Trust Indenture Act of
1939 (the "Trust Indenture Act"), as amended.
(g) Since [____], there has not occurred any material adverse change, or
any development involving a prospective material adverse change, in or affecting
the condition, financial or otherwise, earnings, business or operations of the
Seller, VW Credit or Volkswagen of America, Inc. ("VWA"), and their respective
subsidiaries, taken as a whole, except as disclosed to you in writing prior to
the date hereof.
(h) The Seller acknowledges that in connection with the offering of the
Notes: (1) the Underwriters have acted at arms' length, are not agents of, and
owe no fiduciary duties to, the Seller or any other person, (2) the Underwriters
owe the Seller only those duties and obligations set forth in this Agreement and
(3) the Underwriters may have interests that differ from those of the Seller.
The Seller waives to the fullest extent permitted by applicable law any claims
it may have against the Underwriters arising from an alleged breach of fiduciary
duty in connection with the offer of the Notes.
SECTION 3. Purchase, Sale and Delivery of Notes. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Seller agrees to cause the Issuer to
sell to each Underwriter, and each Underwriter agrees, severally and not
jointly, to purchase from the Issuer the respective principal amount of each
class of Notes set forth opposite the name of such Underwriter on Schedule I at
a purchase price equal to the following percentages of the aggregate principal
amounts thereof: (i) in the case of the Class A-1 Notes, [__]%, (ii) in the case
of the Class A-2 Notes, [__]%, (iii) in the case of the Class A-3 Notes, [__]%
and (iv) in the case of the Class A-4 Notes, [__]%. Delivery of and payment for
the Notes shall be made at the offices of Mayer, Brown, Rowe & Maw LLP, at 10:00
a.m. (New York City time) on [____] (or at such other place and time on the same
or other date as shall be agreed to in writing by the Representative and the
Seller, the "Closing Date"). Delivery of one or more global notes representing
Notes shall be made against payment of the aggregate purchase price in
immediately available funds drawn to the order of the Seller. The global notes
to be so delivered shall be registered in the name of Cede & Co., as nominee of
The Depository Trust Company ("DTC"). The interests of beneficial owners of the
Notes will be represented by book entries on the records of DTC and
participating members thereof. Definitive Notes representing the Notes will be
available only under limited circumstances.
SECTION 4. Offering by Underwriters.
(a) It is understood that, after the Effective Time, the Underwriters
propose to offer the Notes for sale to the public (which may include selected
dealers), as set forth in the Prospectus.
(b) Each Underwriter agrees that it will not offer or sell any Notes within
the United States, its territories or possessions or to persons who are citizens
thereof or residents therein,
4
except in transactions that are not prohibited by any applicable securities,
bank regulatory or other applicable law.
(c) Each Underwriter agrees that it will not offer or sell any Notes in any
other country, its territories or possessions or to persons who are citizens
thereof or residents therein, except in transactions that are not prohibited by
any applicable securities law.
SECTION 5. Covenants of the Seller. The Seller (and, with respect to
clauses (i), (j) and (k), VW Credit) covenants and agrees with the Underwriters
that:
(a) If not already effective, the Seller will use its best efforts to cause
the Registration Statement, and any amendment thereto, to become effective. If
the Registration Statement has become or becomes effective pursuant to Rule
430A, or filing of the Prospectus is otherwise required under Rule 424(b), the
Seller will file the Prospectus, properly completed, and any supplement thereto,
with the Commission pursuant to and in accordance with the applicable Rules and
Regulations within the time period prescribed. The Seller will advise you
promptly of any such filing pursuant to Rule 424(b), or deemed effectiveness
pursuant to Rule 462.
(b) The Seller will advise you promptly of: (i) any proposal to amend or
supplement the Registration Statement as filed, or the Prospectus, and will not
effect such amendment or supplement without first furnishing to you a copy of
each such proposed amendment or supplement and obtaining your consent, which
consent will not unreasonably be withheld, (ii) any request by the Commission
for any amendment of or supplement to the Registration Statement or the
Prospectus or for any additional information, (iii) the effectiveness of the
Registration Statement, or of any amendment or supplement thereto or to the
Prospectus, and (iv) the issuance by the Commission or, if the Seller has
knowledge thereof, by any authority administering any state securities or blue
sky laws of any stop order suspending the effectiveness of the Registration
Statement or the institution or threat of any proceeding for that purpose, and
the Seller will use its best efforts to prevent the issuance of any such stop
order and to obtain as soon as possible the lifting of any issued stop order.
(c) If, during the period in which the Prospectus is required by federal
securities law or regulation (in the opinion of counsel for the Representative)
to be delivered in connection with sales by any Underwriter or dealer, any event
occurs as a result of which the Prospectus, as then amended or supplemented,
would include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading, or if it is
necessary at any time to amend or supplement the Prospectus to comply with the
Securities Act, the Seller (in compliance with clause (b)) promptly will prepare
and file, or cause to be prepared and filed, with the Commission an amendment or
supplement that will correct such statement or omission or effect such
compliance. Any such filing shall not operate as a waiver or limitation of any
rights of the Underwriters hereunder.
(d) As soon as practicable, but not later than sixteen months after the
original effective date of the Registration Statement, the Seller will cause the
Issuer to make generally available to holders of the Notes (each, a
"Noteholder") an earnings statement of the Issuer covering a period of at least
twelve months beginning after the Effective Date that will satisfy the
5
provisions of Section 11(a) of the Securities Act and all applicable Rules and
Regulations (including Rule 158 under the Securities Act).
(e) The Seller will deliver to the Underwriters, without charge, copies of
each Preliminary Prospectus, the Prospectus and all amendments and supplements
to such documents, in each case as soon as available and in such quantities and
to such recipients as any Underwriter shall request (it being hereby understood
that, unless the Representative agrees otherwise, in the case of the Preliminary
Prospectus, the Seller agrees to make all commercially reasonable efforts to
deliver copies thereof in New York City, prior to 10:00 a.m., on the business
day after the Execution Date, in such quantities and to such recipients as the
Representative may request).
(f) The Seller will arrange to qualify the Notes for offer and sale under
the securities or blue sky laws of such jurisdictions as you reasonably shall
request, and will maintain all such qualifications for so long as required for
the distribution of the Notes and, thereafter, to the extent required by such
jurisdictions.
(g) From the Execution Time until the retirement of the Notes, or until
none of the Underwriters maintains a secondary market in the Notes, whichever
occurs first, the Seller will deliver to each of the Underwriters, through the
Representative, the annual statement of compliance and any annual independent
certified public accountants' report furnished to the Indenture Trustee pursuant
to the Sale and Servicing Agreement, as soon as such statements and reports are
furnished to the Indenture Trustee.
(h) So long as any of the Notes are outstanding, the Seller will deliver to
each of the Underwriters, through the Representative: (i) as soon as practicable
after the end of each fiscal year, all documents required to be filed with the
Commission pursuant to the Exchange Act, or any order of the Commission
thereunder, (ii) all documents distributed to Noteholders and (iii) from time to
time, any information concerning the Seller or the Issuer filed with any
governmental or regulatory authority that is publicly available, as the
Underwriters reasonably may request.
(i) On or before the Closing Date, VW Credit shall cause its computer
records relating to the [Receivables] [Origination Trust Assets] to be marked to
show [the Issuer's absolute ownership of the Receivables] [the allocation of the
Transaction Units to the Transaction SUBI and the Issuer's ownership of the
Transaction SUBI], and from and after the Closing Date neither the Seller nor VW
Credit shall take any action inconsistent with the Issuer's ownership of the
[Receivables], [Transaction SUBI and the beneficial interest in the Transaction
Units] other than as permitted by the Transaction Documents.
(j) To the extent, if any, that any of the ratings assigned to the Notes by
any of the rating agencies that initially rate the Notes are conditional upon
the furnishing of documents or the taking of any other actions by the Seller or
VW Credit, as the case may be, the relevant party shall furnish, or cause to be
furnished, such documents and take any such other actions as promptly as
possible.
(k) From the Execution Time until seven days after the Closing Date, none
of the Seller, VW Credit or any trust, including the Issuer, originated,
directly or indirectly, by the
6
Seller or VW Credit will offer to sell or sell anywhere any securities similar
to the Notes that are collateralized by (directly or indirectly), or evidence an
ownership interest in, automobile [loans] [leases] and the related [security]
[leased vehicles] without the prior written consent of each of the Underwriters.
SECTION 6. Payment of Expenses. Except as otherwise agreed in writing by
the Seller and the Representative, the Seller will pay all expenses (including
legal fees and disbursements) incident to the transactions contemplated by this
Agreement, including: (a) the printing and filing of the Registration Statement,
each Preliminary Prospectus and the Prospectus, and each amendment or supplement
thereto, and delivery of copies thereof to the Underwriters, (b) the preparation
of this Agreement, (c) the preparation, issuance and delivery of the Notes to
the Underwriters (or any appointed clearing organizations), (d) the fees and
disbursements of VW Credit's and the Seller's counsel and accountants, (e) the
qualification of the Notes under state securities laws in accordance with
Section 5(f), including filing fees and the fees and disbursements of counsel in
connection therewith and in connection with the preparation of any blue sky
survey (including the printing and delivery thereof to the Underwriters), (f)
any fees charged by rating agencies for the rating (or consideration of the
rating) of the Notes, (g) the fees and expenses incurred with respect to any
filing with, and review by, the National Association of Securities Dealers,
Inc., DTC or any similar organizations, (h) the fees and disbursements of the
Indenture Trustee and its counsel, if any, and (i) the fees and disbursements of
[____], acting in its capacity as owner trustee (in such capacity, the "Owner
Trustee") under the Amended and Restated Trust Agreement, dated as of [____]
(the "Trust Agreement"), between the Seller and the Owner Trustee, and its
counsel [and (j) the fees and disbursements of U.S. Bank National Association,
in its capacities as UTI Trustee (the "UTI Trustee") and Administrative Trustee
(the "Administrative Trustee"), and Wilmington Trust Company, as Delaware
Trustee (the "Delaware Trustee", and together with the UTI Trust and the
Administrative Trustee, the "Origination Trustees") under the Trust Agreement,
dated as of June 9, 1999 (the "Origination Trust Agreement"), between VW Credit
and the Origination Trustees]. The Underwriters have agreed to reimburse the
Seller for certain amounts of the out-of-pocket expenses relating to the
issuance of the Notes.
SECTION 7. Conditions of the Obligations of the Underwriters. The
obligations of the Underwriters to purchase and pay for the Notes will be
subject to the accuracy of the representations and warranties made herein, to
the accuracy of the statements of officers made pursuant hereto, to the
performance by the Seller and VW Credit of their obligations hereunder, and to
the following additional conditions precedent:
(a) If the Registration Statement has not become effective before the
Execution Time, and unless the Representative agrees in writing to a later time,
the Registration Statement shall have become effective not later than: (i) 6:00
p.m. (New York City time) on the date of determination of the public offering
price, if such determination occurred no later than 3:00 p.m. (New York City
time) on such date or (ii) otherwise, noon on the business day after the day on
which the public offering price was determined.
(b) The Prospectus and any supplements thereto shall have been filed (if
required) with the Commission in accordance with the Rules and Regulations and
Sections 2 and 5(a); and, before the Closing Date, no stop order suspending the
effectiveness of the Registration Statement
7
shall have been issued and no proceedings for that purpose shall have been
instituted or, to the knowledge of the Seller or the Underwriters, shall be
contemplated by the Commission or by any authority administering any state
securities or blue sky law.
(c) Both at or before the Execution Time, and on or before the Closing
Date, you shall have received letters, dated as of the date hereof and as of the
Closing Date, respectively, of [PricewaterhouseCoopers LLP], independent
certified public accountants, substantially in the form of the drafts to which
you have agreed previously and otherwise substantially in form and substance
reasonably satisfactory to you and your counsel.
(d) After the Execution Time, there shall not have occurred any change, or
any development involving a prospective change, in the condition, financial or
otherwise, or in the earnings, business or operations of the Issuer, the Seller,
VW Credit or VWA, and their respective subsidiaries, taken as a whole, that, in
your judgment, is material and adverse and that makes it impracticable to market
the Notes on the terms and in the manner contemplated in the Prospectus.
(e) You shall have received an opinion of [____], counsel to the Seller and
VW Credit, addressed to you and the Indenture Trustee, dated the Closing Date
and satisfactory in form and substance to you and your counsel.
(f) Mayer, Brown, Rowe & Maw LLP, special counsel to [you], the Seller, VW
Credit and the Issuer, shall have delivered an opinion or opinions satisfactory
in form and substance to you, dated the Closing Date and addressed to you and
the Indenture Trustee.
(g) You shall have received an opinion addressed to you, the Seller and the
Servicer of [____], counsel to the Indenture Trustee, dated the Closing Date and
satisfactory in form and substance to you and your counsel.
(h) You shall have received an opinion addressed to you, the Seller and the
Servicer of [____], counsel to the Owner Trustee and special Delaware counsel to
the Seller, the Origination Trust, the SUBI Trustee and the Issuer, dated the
Closing Date and satisfactory in form and substance to you and your counsel.
(i) You shall have received certificates dated the Closing Date of any two
of the President, the Chief Financial Officer, any Vice President, the
Controller, the Treasurer, the Secretary, Assistant Treasurer or the Assistant
Secretary of the Seller and VW Credit in which such officers shall state that:
(A) the representations and warranties made by such entity contained in the
Transaction Documents and this Agreement are true and correct, that such party
has complied with all agreements and satisfied all conditions on its part to be
performed or satisfied under such agreements on or before the Closing Date, and
no stop order suspending the effectiveness of the Registration Statement has
been issued and no proceedings for that purpose have been instituted or are
contemplated by the Commission or, to the knowledge of such officers, any
authority administering state securities or blue sky laws and (B) since [____]
there has not occurred any material adverse change, or any development involving
a prospective material adverse change, in or affecting the condition, financial
or otherwise, or in the earnings, business
8
or operations of the Issuer, the Seller or the Servicer except as disclosed to
you in writing prior to the date of the Prospectus.
(j) You shall have received evidence satisfactory to you that, on or before
the Closing Date, UCC-1 financing statements have been or are being filed in all
applicable governmental offices reflecting (A) the transfer of the interest of
VW Credit in the [Receivables] [Transaction SUBI] and the proceeds thereof to
the Seller pursuant to the [Purchase Agreement] [SUBI Sale Agreement], (B) the
transfer of the interest of the Seller in the [Purchase Agreement, the
Receivables and the proceeds thereof to the Issuer pursuant to the Sale and
Servicing Agreement] [SUBI Sale Agreement, the Transaction SUBI and the proceeds
thereof to the Issuer pursuant to the SUBI Transfer Agreement], and (C) the
grant by the Issuer to the Indenture Trustee under the Indenture of a security
interest in the interest of the Issuer in the [Purchase Agreement, the Sale and
Servicing Agreement, the Receivables and the proceeds thereof] [SUBI Sale
Agreement, the SUBI Transfer Agreement, the Transaction SUBI and the proceeds
thereof].
(k) The Class A-1 Notes shall have been rated in the highest short-term
rating category and the Class A-2 Notes, Class A-3 Notes and Class A-4 Notes
shall have been rated in the highest long-term rating category by both Standard
and Poor's Ratings Services, a division of The McGraw-Hill Companies, Inc., and
Moody's Investors Service, Inc.
(l) You shall have received, from each of VW Credit and the Seller, a
certificate executed by a secretary or assistant secretary thereof to which
shall be attached certified copies of the: (i) organizational documents, (ii)
applicable resolutions and (iii) designation of incumbency of each such entity.
The Seller will provide or cause to be provided to you conformed copies of
such opinions, certificates, letters and documents as you or your counsel
reasonably request.
SECTION 8. Termination. This Agreement shall be subject to termination by
notice given by you to the Seller if: (a) after the execution and delivery of
this Agreement and prior to the Closing Date: (i) trading generally shall have
been suspended or materially limited on the New York Stock Exchange; (ii)
trading of any securities of Volkswagen AG shall have been suspended on any
exchange or in any over-the-counter market; (iii) any general moratorium on
commercial banking activities in New York shall have been declared by either
Federal or New York State authorities; or (iv) there shall have occurred any
outbreak or escalation of hostilities or any change in financial markets or any
calamity or crisis that, in your judgment, is material and adverse, and (b) in
the case of any of the events specified above, such event singly or together
with any other such event makes it, in your judgment, impracticable to market
the Notes on the terms and in the manner contemplated in the Prospectus.
SECTION 9. Indemnification and Contribution. (a) The Seller and VW Credit
will, jointly and severally, indemnify and hold harmless each Underwriter, and
each person, if any, who controls such Underwriter within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act, from and
against any losses, claims, damages and liabilities (including, without
limitation, any legal or other expenses incurred by any Underwriter or any such
controlling person in connection with defending or investigating any such action
or claim) to which they or any of them may become subject, under the Securities
Act or otherwise, insofar
9
as such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of any material fact contained in the Registration Statement, any Preliminary
Prospectus, the Prospectus or any amendment, exhibit or supplement thereto, or
arise out of or are based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances in which they were made,
not misleading; provided, however, that neither the Seller nor VW Credit will be
liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged untrue
statement in, or omission or alleged omission from, any of such documents in
reliance upon and in conformity with written information furnished to the Seller
by any Underwriter through the Representative specifically for use therein; and
provided further, that the foregoing indemnity agreement with respect to any
Preliminary Prospectus shall not inure to the benefit of any Underwriter from
whom the person asserting any such losses, claims, damages or liabilities
purchased any Notes, or any person controlling such Underwriter, if a copy of
the Prospectus (as then amended or supplemented if the Seller shall have
furnished any amendments or supplements thereto) was not sent or given by or on
behalf of such Underwriter to such person, if required by law so to have been
delivered, at or prior to the written confirmation of the sale of the Notes to
such person, and if the Prospectus (as then so amended or supplemented) would
have cured the defect giving rise to such losses, claims, damages or
liabilities.
(b) Each Underwriter, severally and not jointly, agrees to indemnify and
hold harmless the Seller and VW Credit and their respective directors, officers
who signed the Registration Statement, and each person, if any, who controls
such parties within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act, against any losses, claims, damages or
liabilities (including, without limitation, any legal or other expenses incurred
by any of them in connection with defending or investigating any such action or
claim) to which any of them may become subject, under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the Registration Statement,
any Preliminary Prospectus, the Prospectus or any amendment, exhibit or
supplement thereto (collectively, the "Disclosure Documents"), or arise out of
or are based upon the omission or the alleged omission to state therein a
material fact required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances in which they were made,
not misleading, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged omission was
made in reliance upon and in conformity with written information furnished to
the Seller by such Underwriter through the Representative specifically for use
therein. The Seller and VW Credit acknowledge and agree that the only written
information furnished to the Seller by any Underwriter through the
Representative for use in the Disclosure Documents consists of the following:
[_____].
(c) In case any proceeding (including any governmental investigation) shall
be instituted involving any person in respect of which indemnity may be sought
pursuant to either subsection (a) or (b), such person (the "indemnified party")
promptly shall notify the person against whom such indemnity may be sought (the
"indemnifying party") in writing and the indemnifying party, upon request of the
indemnified party, shall retain counsel reasonably satisfactory to the
indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceedings and shall pay the fees and
disbursements
10
of such counsel related to such proceeding. In any such proceeding, any
indemnified party shall have the right to retain its own counsel, but the fees
and expenses of such counsel shall be at the expense of such indemnified party
unless: (i) the indemnifying party and the indemnified party agree on the
retention of such counsel at the indemnifying party's expense or (ii) the named
parties to any such proceeding (including any impleaded parties) include both
the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the fees and expenses of more than one counsel (in addition to any
local counsel) for all such indemnified parties and that all such fees and
expenses shall be reimbursed promptly as they are incurred. Such counsel shall
be designated in writing by the Seller, in the case of parties indemnified
pursuant to subsection (a), and by the Representative, in the case of parties
indemnified pursuant to subsection (b). The indemnifying party shall not be
liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the indemnified party
from and against any loss or liability by reason of such settlement or judgment.
No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened proceeding
in respect of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party, unless
such settlement includes an unconditional release of such indemnified party from
all liability on claims that are the subject matter of such proceeding and does
not include any statement as to or any admission of fault, culpability or a
failure to act by or on behalf of such indemnified party.
(d) If the indemnification provided for in this Section is unavailable or
insufficient to hold harmless an indemnified party under subsection (a) or (b),
then each indemnifying party, in lieu of indemnifying such indemnified party
thereunder, shall contribute to the amount paid or payable by such indemnifying
party as a result of the losses, claims, damages or liabilities referred to in
subsection (a) or (b): (i) in such proportion as is appropriate to reflect the
relative benefits received by the Seller, VW Credit, the Issuer and their
affiliates on the one hand and the Underwriters on the other from the offering
of the Notes, or (ii) if the allocation provided by clause (i) is not permitted
by applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) but also the relative fault of the
Seller, VW Credit, the Issuer and their affiliates on the one hand and the
Underwriters on the other in connection with the statements or omissions that
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits received by the Seller,
VW Credit, the Issuer and their affiliates on the one hand and the Underwriters
on the other in connection with the offering of the Notes shall be deemed to be
in the same proportion as the total net proceeds from the offering (before
deducting expenses other than underwriting discounts and commissions received by
the Underwriters) received by the Seller, VW Credit, the Issuer and their
affiliates bear to the total underwriting discounts and commissions received by
the Underwriters. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Seller, VW Credit, the Issuer or their affiliates or
by any Underwriter, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such untrue statement or
11
omission. The Underwriters' respective obligations to contribute pursuant to
this Section are several in proportion to the respective principal amounts of
Notes they have purchased hereunder, and not joint.
(e) The parties hereto agree that it would not be just or equitable if
contribution pursuant to this Section were determined by pro rata allocation
(even if the Underwriters were treated as one entity for such purpose) or by any
other method of allocation that does not take account of the equitable
considerations referred to in the preceding paragraph. The amount paid or
payable by an indemnified party as a result of the losses, claims, damages and
liabilities referred to in the preceding paragraph shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the other provisions of
this Section, no Underwriter (except as may be provided in the agreement among
Underwriters relating to the offering of the Notes) shall be required to
contribute any amount in excess of the amount by which the total underwriting
discounts and commissions received by such Underwriter exceed the amount of any
damages that such Underwriter otherwise has been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution or indemnity from
any person who was not guilty of such fraudulent misrepresentation. The remedies
provided for in this Section are not exclusive and shall not limit any rights or
remedies that otherwise may be available to any indemnified party at law or in
equity.
SECTION 10. Defaults by an Underwriter. If any one or more Underwriter(s)
fail(s) to purchase and pay for any of the Notes agreed to be purchased by such
Underwriter(s) hereunder, and such failure constitutes a default in the
performance of its or their obligations under this Agreement, the remaining
Underwriter(s) shall be obligated severally to take up and pay for (in the
respective proportions that the amount of Notes set forth opposite their names
in Schedule I bears to the aggregate amount of Notes set forth opposite the
names of all the remaining Underwriter(s)) the Notes that the defaulting
Underwriter(s) agreed but failed to purchase; provided, however, that if the
aggregate amount of Notes that the defaulting Underwriter(s) agreed but failed
to purchase exceeds 10% of the aggregate principal amount of Notes, the
remaining Underwriter(s) shall have the right to purchase all, but shall not be
under any obligation to purchase any, of the Notes, and if such nondefaulting
Underwriter(s) do not purchase all the Notes, this Agreement will terminate
without liability to any nondefaulting Underwriter. In the event of a default by
any Underwriter as set forth in this paragraph, the Closing Date shall be
postponed for such period, not exceeding seven days, as the remaining
Underwriter(s) shall determine in order that the required changes in the
Registration Statement and the Prospectus or in any other documents or
arrangements may be effected. Nothing contained in this Agreement shall relieve
any defaulting Underwriter(s) of any liability to the Seller, VW Credit, their
affiliates or any nondefaulting Underwriter(s) for damages occasioned by its
default hereunder.
SECTION 11. No Bankruptcy Petition. Each Underwriter covenants and agrees
that, before the date that is one year and one day after the payment in full of
all notes issued by the Issuer or any other common law or statutory trust or
limited liability company formed by the Seller in connection with the issuance
of securities, it will not institute against, or join any other
12
person in instituting against, the Seller, the Issuer or any other such trust or
limited liability company any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings or other proceedings under any Federal or
state bankruptcy or similar law.
SECTION 12. Survival of Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements set
forth in or made pursuant to this Agreement or contained in certificates of
officers submitted pursuant hereto shall remain operative and in full force and
effect, regardless of any investigation or statement as to the results thereof,
and will survive delivery of and payment for the Notes. If for any reason the
purchase of the Notes by the Underwriters is not consummated, the Seller shall
remain responsible for the expenses to be paid or reimbursed pursuant to Section
6 and the obligations pursuant to Section 9 shall remain in effect. If for any
reason the purchase of the Notes by the Underwriters is not consummated, other
than termination of this Agreement pursuant to Section 10, the Seller will
reimburse the Underwriters severally, upon demand, for all out-of-pocket
expenses (including fees and disbursements of counsel) incurred by any
Underwriter in connection with the offering of the Notes.
SECTION 13. Notices. All communications hereunder will be in writing and
will be mailed or delivered and confirmed in each case as follows: (a) if to the
Underwriters, to the Representative, at [_____]; (b) if to the Seller, at
Volkswagen Auto Lease Underwritten Funding, LLC, 3800 Hamlin Road, Auburn Hills,
Michigan 48326, Attention: Corporate Secretary; and (c) if to VW Credit, at VW
Credit, Inc., 3800 Hamlin Road, Auburn Hills, Michigan 48326, Attention:
Corporate Secretary.
SECTION 14. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto, their respective successors and agents, and the
directors, officers and control persons referred to in Section 9, and no other
person will have any rights or obligations hereunder.
SECTION 15. Applicable Law. THIS AGREEMENT WILL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS 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.
SECTION 16. Severability of Provisions. Any covenant, provision, agreement
or term of this Agreement that is prohibited or is held to be void or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof or the enforceability of such provision in any other
jurisdiction.
SECTION 17. Entire Agreement. This Agreement constitutes the entire
agreement and understanding of the parties hereto with respect to the matters
and transactions contemplated hereby and supersedes all prior agreements and
understandings whatsoever (whether oral or written) relating to such matters and
transactions.
13
SECTION 18. Amendment. Neither this Agreement nor any term hereof may be
changed, waived, discharged or terminated orally, but only by an instrument in
writing signed by the party against whom enforcement of the change, waiver,
discharge or termination is sought.
SECTION 19. Headings. The headings in this Agreement are for the purposes
of reference only and shall not limit or otherwise affect the meaning hereof.
SECTION 20. Counterparts. This Agreement may be executed in counterparts,
each of which shall constitute an original, but all of which together shall
constitute one instrument.
SECTION 21. Representation. You will act for the several Underwriters in
connection with the transactions contemplated by this Agreement, and any action
under this Agreement taken by you will be binding upon all the Underwriters.
SECTION 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, 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 set forth in Section 13 or, if not therein, in 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 sue in any other jurisdiction.
[signature pages follow]
14
If the foregoing is in accordance with your understanding of our agreement,
kindly sign and return to us the enclosed duplicate hereof, whereupon it will
become a binding agreement among the undersigned and the remaining Underwriters.
Very truly yours,
VOLKSWAGEN AUTO LEASE UNDERWRITTEN
FUNDING, LLC
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
VW CREDIT, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
S-1
The foregoing Underwriting Agreement
is hereby confirmed and accepted as
of the date first written above.
[__________________________________],
on behalf of itself and as
Representative of the several
Underwriters
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
S-2
SCHEDULE I
to Underwriting Agreement
CLASS A-1 CLASS A-2 CLASS A-3 CLASS A-4
UNDERWRITERS NOTES NOTES NOTES NOTES TOTAL
- ------------ --------- --------- --------- --------- -----
TOTAL CLASS SIZE
I-1