VOLKSWAGEN CREDIT AUTO MASTER OWNER TRUST FLOATING RATE AUTO DEALER LOAN BACKED NOTES, SERIES 2005-1 VOLKSWAGEN DEALER FINANCE, LLC (TRANSFEROR) UNDERWRITING AGREEMENT
Exhibit 1.1
EXECUTION COPY
FLOATING RATE AUTO DEALER LOAN BACKED NOTES,
SERIES 2005-1
SERIES 2005-1
VOLKSWAGEN DEALER FINANCE, LLC
(TRANSFEROR)
(TRANSFEROR)
August 3, 2005
Xxxxxx Xxxxxxx & Co. Incorporated,
As Representative of the
Several Underwriters
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
As Representative of the
Several Underwriters
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Ladies and Gentlemen:
SECTION 1. Introductory. Volkswagen Dealer Finance, LLC (the “Transferor") proposes to
cause Volkswagen Credit Auto Master Owner Trust (the “Trust") to transfer $850,000,000 principal
amount of LIBOR + 0.02% Floating Rate Auto Dealer Loan Backed Notes, Series 2005-1 (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 Amended and Restated Indenture, dated as
of August 11, 2005 (as amended, supplemented or modified from time to time, the “Base Indenture”),
among the Transferor, VW Credit, Inc. (“VW Credit"), as servicer (in such capacity, the
"Servicer"), and JPMorgan Chase Bank, N.A., as indenture trustee (as successor to Bank One,
National Association) (in such capacity, the “Indenture Trustee"), and the Series 2005-1 Supplement
thereto to be dated as of August 11, 2005 (the Base Indenture, as so supplemented, the
"Indenture"), among the Transferor, the Servicer and the Indenture Trustee. The assets of the
Trust include, among other things: (a) a pool of receivables (the “Receivables") generated from
time to time pursuant to floorplan financing agreements between VW Credit and various dealers, and
(b) the related Collateral Security. The Receivables will be sold to the Trust by the Transferor
and will be serviced for the Trust by the Servicer.
Capitalized terms used but not otherwise defined herein shall have the meanings set forth in
the Indenture or Part I of Appendix A to the Amended and Restated Trust Sale and Servicing
Agreement, dated as of August 11, 2005 among VW Credit, the Transferor and the Trust (as amended,
supplemented or modified from time to time, “Trust Sale and Servicing Agreement”).
SECTION 2. Representations and Warranties. The Transferor represents and warrants to
and agrees with you that:
(a) The Transferor meets the requirements for use of 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 (Registration No. 333-125416), including a preliminary
prospectus, on Form S-3 for the registration under the Securities Act of the Notes. The Transferor
may have filed one or more amendments thereto, including the preliminary prospectus, each of which
has been furnished to you. The Transferor 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), (ii) a final prospectus in accordance with Rule 430A and
Rule 424(b), or Rule 415 and 424(b). In the case of a post-effective filing pursuant to clause
(ii), the Transferor 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
Transferor 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 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, as the case may be; and any reference herein to the terms
“amend”, “amendment”
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or “supplement” with respect to the Registration Statement, any 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, 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
Transferor files a registration statement and relies on Rule 462(b) 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 thereto, 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 Transferor 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 Transferor
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 Transferor’s representations and
warranties in the Trust Sale and Servicing Agreement will be true and correct.
(d) This Agreement has been duly authorized, executed and delivered by the Transferor and VW
Credit.
(e) Neither the Transferor nor VW Credit nor anyone acting on their behalf has taken any
action that would require registration of the Transferor or the Trust under the Investment Company
Act of 1940, as amended (the “Investment Company Act"); nor will the Transferor or 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.
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(g) Since March 31, 2005 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 Transferor, 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 Transferor 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
Transferor or any other person, (2) the Underwriters owe the Transferor only those duties and
obligations set forth in this Agreement and (3) the Underwriters may have interests that differ
from those of the Transferor. The Transferor 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 Transferor agrees to cause the Trust to sell to each Underwriter,
and each Underwriter agrees, severally and not jointly, to purchase from the Trust the respective
principal amount of the Notes set forth opposite the name of such Underwriter on Schedule
I, at a purchase price of LIBOR + 0.02% of the aggregate principal amount thereof. Delivery of
and payment for the Notes shall be made at the offices of Mayer, Brown, Xxxx & Maw LLP, at 10:00
a.m. (New York City time) on August 11, 2005 (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 Transferor, the “Closing
Date"). Delivery of one or more global notes representing the Notes shall be made against payment
of the aggregate purchase price in immediately available funds drawn to the order of the
Transferor. 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, 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 Transferor. The Transferor (and, with respect to
clauses (i) and (j), VW Credit) covenants and agrees with the Underwriters that:
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(a) If not already effective, the Transferor 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 Transferor 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 Transferor will advise you promptly of
any such filing pursuant to Rule 424(b), or deemed effectiveness pursuant to Rule 462.
(b) The Transferor 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 Transferor 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 Transferor 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 law (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 Transferor (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 Transferor will cause the Trust to make generally available
to holders of the Notes (each, a “Noteholder") an earnings statement of the Trust covering a period
of at least twelve months beginning after the Effective Date that will satisfy the provisions of
Section 11(a) of the Securities Act and all applicable Rules and Regulations (including Rule 158
under the Securities Act).
(e) The Transferor will deliver to the Underwriters, without charge, copies of the
Registration Statement (two of which will be signed and will include all exhibits), 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 Transferor agrees to make all commercially reasonable
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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 Transferor 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 Transferor 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 Trust 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 Transferor 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 Transferor or the Trust filed with any governmental or
regulatory authority that is publicly available, as the Underwriters reasonably may request.
(i) On or before the Closing Date, the Transferor and VW Credit shall cause their computer
records relating to the Receivables and the related Collateral Security to be marked to show the
Trust’s absolute ownership of the Receivables and the Collateral Security, and from and after the
Closing Date neither the Transferor nor VW Credit shall take any action inconsistent with the
Trust’s ownership of such Receivables and related Collateral Security, other than as permitted by
the Basic 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 Transferor 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 Transferor,
VW Credit or any trust, including the Trust, originated, directly or indirectly, by the Transferor
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, receivables
generated pursuant to wholesale automobile and/or light duty truck financing agreements without the
prior written consent of each of the Underwriters.
SECTION 6. Payment of Expenses. Except as otherwise agreed in writing by the
Transferor and the Representative, the Transferor 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
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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 Transferor’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 The Bank of New York (Delaware), acting in its capacity as owner trustee (in
such capacity, the “Owner Trustee") under the Amended and Restated Trust Agreement, dated as of
August 11, 2005 (as amended, supplemented or modified from time to time the “Trust Agreement"),
between the Transferor and the Owner Trustee.
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 Transferor 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 shall have been issued and no proceedings for that purpose shall have been instituted or,
to the knowledge of the Transferor 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 Trust, the Transferor, VW Credit or VWA, and their respective
subsidiaries, taken as a whole, that, in your judgment, is material and adverse and that
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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 Xxxxx Xxxxxx, counsel to the Transferor, VW Credit
and the Trust, 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, Xxxx & Maw LLP, special counsel to you, the Transferor, VW Credit and the
Trust, 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 Transferor and the Servicer of
Xxxxx, Xxxxxx & Xxxxxx, LLP, 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 Transferor and the Servicer of
Xxxxxxxx, Xxxxxx & Finger, P.A., counsel to the Owner Trustee, 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,
Chief Financial Officer, any Vice President, the Controller, the Treasurer Secretary, Assistant
Treasurer or Assistant Secretary of the Transferor and VW Credit in which such officers shall state
that: (A) the representations and warranties made by such entity contained in the Basic 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, that 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 March 31, 2005 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 or operations of the Trust, the
Transferor 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, the Collateral
Security and the proceeds thereof to the Transferor pursuant to the Receivables Purchase Agreement,
(B) the transfer of the interest of the Transferor in the Receivables Purchase Agreement, the
Receivables, the Collateral Security and the proceeds thereof to the Trust pursuant to the Trust
Sale and Servicing Agreement, and (C) the grant by the Trust to the Indenture Trustee under the
Indenture of a security interest in the interest of the Trust in the Receivables Purchase
Agreement, the Receivables, the Collateral Security and the proceeds thereof.
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(k) The Notes shall have been rated in the highest long-term rating category by both Standard
and Poor’s Ratings Services, a division of The XxXxxx-Xxxx Companies, Inc., and Xxxxx’x Investors
Service, Inc.
(l) No Early Amortization Event or other event or condition, which event or condition with
notice, the passage of time or both could result in an Early Amortization Event, shall have
occurred or shall exist with respect to any securities issued by the Trust that are outstanding on
the Closing Date.
(m) You shall have received, from each of VW Credit and the Transferor, 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 Transferor 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 Transferor 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 Transferor 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 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
Transferor 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 Transferor by any Underwriter through the Representative
specifically for use therein; and provided further, that
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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 Transferor 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
Transferor 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, 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 Transferor by
such Underwriter through you specifically for use therein.
(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 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 Transferor, in the case of parties
indemnified pursuant to subsection (a), and by the Representative, in the case of parties
indemnified pursuant to
10
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.
(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 Transferor, VW Credit, the Trust 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 Transferor, VW Credit, the Trust 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 Transferor, VW Credit, the
Trust 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 Transferor, VW Credit, the Trust 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 Transferor, VW Credit, the Trust 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 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
11
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 Transferor, VW Credit, their affiliates and 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
Trust or any other common law trust, statutory trust or limited liability company formed by the
Transferor in connection with the issuance of securities, it will not institute against, or join
any other person in instituting against, the Transferor the Trust, 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 Transferor 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 Transferor will reimburse the Underwriters severally, upon demand, for all
out-of-pocket
12
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, if sent to
the Underwriters, will be mailed, delivered or telegraphed and confirmed to: (a) the Representative
at 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx Xxxx Xxxxxxx; (b) to the Transferor
at Volkswagen Credit Auto Receivables Corporation, 0000 Xxxxxx Xxxx, Xxxxxx Xxxxx, Xxxxxxxx 00000,
Attention: Corporate Secretary; and (c) to VW Credit at VW Credit, Inc., 0000 Xxxxxx Xxxx, Xxxxxx
Xxxxx, Xxxxxxxx 00000, 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 OR ANY OTHER JURISDICTION’S
CONFLICTS 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.
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.
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.
13
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 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.
[signature page follows]
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 DEALER FINANCE, LLC | ||||||
| By: /s/ Xxxxx Xxxxxx | ||||||
| Name: Xxxxx Xxxxxx | ||||||
| Title: President and Treasurer | ||||||
| By: /s/ XxXxx X. Xxxxxx | ||||||
| Name: XxXxx X. Xxxxxx | ||||||
| Title: Assistant Treasurer | ||||||
| VW CREDIT, INC. | ||||||
| By: /s/ Xxxxx Xxxxxx | ||||||
| Name: Xxxxx Xxxxxx | ||||||
| Title: Treasurer | ||||||
| By: /s/ XxXxx X. Xxxxxx | ||||||
| Name: XxXxx X. Xxxxxx | ||||||
| Title: Assistant Treasurer | ||||||
The foregoing Underwriting
Agreement is hereby confirmed
and accepted as of the date
first written above.
Agreement is hereby confirmed
and accepted as of the date
first written above.
| Xxxxxx Xxxxxxx & Co. Incorporated, | ||||
| on behalf of itself and as Representative of the several Underwriters |
||||
By:
|
Xxxxx Xxxx | |||
| Name: Xxxxx Xxxx Title: Managing Director |
||||
SCHEDULE I
to Underwriting Agreement
to Underwriting Agreement
UNDERWRITERS
| Principal Amount of Notes | ||||
| Underwriter | Purchased | |||
Xxxxxx Xxxxxxx & Co. Incorporated |
$ | 467,500,000 | ||
SG Americas Securities, LLC |
$ | 297,500,000 | ||
Wachovia Capital Markets, LLC |
$ | 42,500,000 | ||
Dresdner Kleinwort Xxxxxxxxxxx
Securities LLC |
$ | 42,500,000 | ||
TOTAL |
$ | 850,000,000 | ||
