EXHIBIT 1.1
VOLKSWAGEN CREDIT AUTO MASTER OWNER TRUST
FLOATING RATE AUTO DEALER LOAN BACKED NOTES,
SERIES 200__-__
VOLKSWAGEN DEALER FINANCE, LLC
(TRANSFEROR)
UNDERWRITING AGREEMENT
______, 200_
________________________,
As Representative of the
Several Underwriters
_________________________
_________________________
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 $ ________ principal amount of Floating Rate Auto Dealer Loan Backed
Notes, Series 200_-_ (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 _______ , 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 200_-_ Supplement thereto to be dated as of
______ , 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 ______ , 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" 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.
(g) Since ______ , 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.
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 % of the aggregate principal amount thereof. Delivery of and payment
for the Notes shall be made at the offices of Mayer, Brown, ▇▇▇▇ & Maw LLP, at
10:00 a.m. (New York City time) on ______ , 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:
(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 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 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,
acting in its capacity as owner trustee (in such capacity, the "Owner Trustee")
under the Amended and Restated Trust Agreement, dated as of ______ , 2005 (as
amended, supplemented or modified from time to time the "Trust Agreement"),
between the Transferor and the Owner Trustee. The Underwriters have agreed to
reimburse the Transferor 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 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 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 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, ▇▇▇▇ & 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 _______________ , 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 _____________ , 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 or
the Treasurer 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 ______ ,
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.
(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
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., and ▇▇▇▇▇'▇ 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 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 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 price at which
the Notes underwritten and distributed to the public by it were offered to the
public exceeds 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
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 ; (b) to the Transferor at
Volkswagen Credit Auto Receivables Corporation, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Secretary; and (c) to VW Credit at VW
Credit, Inc., ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, 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.
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 ▇▇▇ in any other jurisdiction.
[signature page follows]
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: ________________________________
Name: ______________________________
Title: _____________________________
By: ________________________________
Name: ______________________________
Title: _____________________________
VW CREDIT, INC.
By: ________________________________
Name: ______________________________
Title: _____________________________
By: ________________________________
Name: ______________________________
Title: _____________________________
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: ______________________
SCHEDULE I
to Underwriting Agreement
UNDERWRITERS
UNDERWRITER PRINCIPAL AMOUNT OF NOTES PURCHASED
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----------- -----------------------------------
----------- -----------------------------------
----------- -----------------------------------
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TOTAL
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