VOLKSWAGEN AUTO LOAN ENHANCED TRUST 2008-1 VOLKSWAGEN AUTO LEASE/LOAN UNDERWRITTEN FUNDING, LLC (DEPOSITOR) $245,000,000 2.84003% Auto Loan Asset Backed Class A-1 Notes $305,000,000 3.71% Auto Loan Asset Backed Class A-2-A Notes $255,000,000 4.50%...
Exhibit 1.1 |
VOLKSWAGEN AUTO LOAN ENHANCED TRUST 2008-1
VOLKSWAGEN AUTO LEASE/LOAN UNDERWRITTEN FUNDING, LLC
(DEPOSITOR)
$245,000,000 2.84003% Auto Loan Asset Backed Class A-1 Notes
$305,000,000 3.71% Auto Loan Asset Backed Class A-2-A Notes
$255,000,000 4.50% Auto Loan Asset Backed Class A-3-A Notes
$214,450,000 LIBOR + 1.70% Auto Loan Asset Backed Class A-4-B Notes
VOLKSWAGEN AUTO LEASE/LOAN UNDERWRITTEN FUNDING, LLC
(DEPOSITOR)
$245,000,000 2.84003% Auto Loan Asset Backed Class A-1 Notes
$305,000,000 3.71% Auto Loan Asset Backed Class A-2-A Notes
$255,000,000 4.50% Auto Loan Asset Backed Class A-3-A Notes
$214,450,000 LIBOR + 1.70% Auto Loan Asset Backed Class A-4-B Notes
May 1, 2008
Citigroup Global Markets Inc.,
as a Representative of the
Several Underwriters named on Schedule I hereto
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
as a Representative of the
Several Underwriters named on Schedule I hereto
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Deutsche Bank Securities Inc.,
as a Representative of the
Several Underwriters named on Schedule I hereto
00 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
as a Representative of the
Several Underwriters named on Schedule I hereto
00 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
SECTION 1. Introductory. Volkswagen Auto Lease/Loan Underwritten Funding, LLC (the
“Depositor” or the “Seller”) proposes to transfer $245,000,000 aggregate principal
amount of 2.84003% Auto Loan Asset Backed Class A-1 Notes (the “Class A-1 Notes”),
$305,000,000 aggregate principal amount of 3.71% Auto Loan Asset Backed Class A-2-A Notes (the
“Class A-2-A Notes”), $255,000,000 aggregate principal amount of 4.50% Auto Loan Asset
Backed Class A-3-A Notes (the “Class A-3-A Notes”) and $214,450,000 aggregate principal
amount of LIBOR + 1.70% Auto Loan Asset Backed Class A-4-B Notes (the “Class A-4-B Notes”,
and together with the Class A-1 Notes, the Class A-2-A Notes and the Class A-3-A Notes, the
“Notes”) to the several underwriters set forth on Schedule I (each, an
“Underwriter” and collectively, the “Underwriters”), acting severally and not
jointly, for whom you are acting as representatives (the “Representatives”). The Notes
will be issued pursuant to an Indenture, dated as of May 9, 2008 (as amended, supplemented or
modified from time to time, the “Indenture”), between Volkswagen Auto Loan Enhanced Trust
2008-1 (the “Issuer”) and Citibank, N.A., as indenture trustee (in such capacity, the
“Indenture Trustee”). The assets of the Issuer include, among other things, motor vehicle
retail installment sale contracts or installment loans secured by a combination of new or used
automobiles or light-duty trucks (the “Receivables”) and certain
related rights. The Receivables will be sold to the Issuer by the Seller and will be serviced
for the Issuer by VW Credit, Inc. (“VW Credit”), as servicer (in such capacity, the
“Servicer”).
Capitalized terms used but not otherwise defined herein shall have the meanings set forth in
Appendix A to the Sale and Servicing Agreement, dated as of May 9, 2008 (as amended,
supplemented or modified from time to time, the “Sale and Servicing Agreement”), among the
Servicer, the Issuer, the Seller and the Indenture Trustee. Pursuant to Rule 15c6-1(d) under the
Securities Exchange Act of 1934, as amended (the “Exchange Act”), the Underwriters, the
Seller and VW Credit hereby agree that the “Closing Date” shall be May 9, 2008, 10:00 a.m.,
New York City time (or at such other place and time on the same or other date as shall be agreed to
in writing by the Representatives and the Seller).
The Seller has prepared and filed with the Securities and Exchange Commission (the
“Commission”) in accordance with the provisions of the Securities Act of 1933, as amended,
and the rules and regulations of the Commission thereunder (collectively, the “Securities
Act”), a shelf registration statement on Form S-3 (having the registration number 333-133770),
including a form of prospectus, relating to the Notes. The registration statement as amended has
been declared effective by the Commission not more than three years prior to the Closing Date or,
the Seller has prepared and filed (before the expiration of such three year period) with the
Commission in accordance with the provisions of the Securities Act, a new shelf registration
statement on Form S-3 and such new registration statement includes unsold securities covered by the
earlier registration statement, which such unsold securities may continue to be offered and sold
until the earlier of the effective date of the new registration statement or 180 days after the
third anniversary of the initial effective date of the prior registration statement, as permitted
pursuant to paragraph (a)(5) of Rule 415 of the Securities Act. If any post-effective amendment
has been filed with respect thereto, prior to the execution and delivery of this Underwriting
Agreement (this “Agreement”), the most recent such amendment is effective upon filing with
the Commission pursuant to Rule 462 of the Securities Act or has been declared effective by the
Commission. Such registration statement, as amended at the time of effectiveness, including all
material incorporated by reference therein and including all information (if any) deemed to be part
of the registration statement at the time of effectiveness pursuant to Rule 430B under the
Securities Act, is referred to in this Agreement as the “Registration Statement.” The
Seller proposes to file with the Commission pursuant to Rule 424(b) under the Securities Act
(“Rule 424(b)”) a supplement (the “Prospectus Supplement”) to the prospectus
included in the Registration Statement (such prospectus, in the form it appears in the Registration
Statement or in the form most recently revised and filed with the Commission pursuant to Rule
424(b) is hereinafter referred to as the “Basic Prospectus”) relating to the Notes and the
method of distribution thereof. The Basic Prospectus and the Prospectus Supplement, together with
any amendment thereof or supplement thereto, is hereinafter referred to as the
“Prospectus.”
Prior to 4:41 p.m. (Eastern Time) (U.S.) on May 1, 2008 (i.e., the date and time the first
Contract of Sale (as defined below) for the Notes (the “Time of Sale”) was entered into as
designated by the Representatives), the Seller had prepared a preliminary prospectus, dated April
29, 2008 (subject to completion). As used herein, “Preliminary Prospectus” means, with
respect to any date or time referred to herein, the most recent preliminary prospectus (as amended
or supplemented, if applicable), which has been prepared and delivered by the Seller to the
Underwriters in accordance with the provisions hereof.
2
Pursuant to this Agreement, and subject to the terms hereof, the Seller agrees to sell to the
Underwriters, the respective principal amount of each class of Notes set forth opposite the name of
such Underwriter on Schedule I.
SECTION 2. Representations and Warranties. The Seller represents and warrants to and
agrees with you that:
(a) (i) The Seller has prepared and filed the Registration Statement with the Commission in
accordance with the provisions of the Securities Act, including a form of prospectus, relating to
the Notes. The registration statement as amended has been declared effective by the Commission.
The conditions to the use of a registration statement on Form S-3 under the Securities Act, as set
forth in the General Instructions to Form S-3, and the conditions of Rule 415 under the Securities
Act, have been satisfied with respect to the Registration Statement. No stop order suspending the
effectiveness of the Registration Statement has been issued, and no proceeding for that purpose has
been instituted or threatened by the Commission.
(ii) On the most recent effective date of the Registration Statement, the Registration
Statement conformed in all material respects with the applicable requirements of the
Securities Act, and did not include any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make the statements therein
not misleading and, on the Closing Date, the Registration Statement and, on the date hereof
and on the Closing Date, the Prospectus will conform in all material respects with the
applicable requirements of the Securities Act, and (x) the Registration Statement will not
include any untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein not misleading and (y) the
Prospectus and the Designated Static Pool Information (as defined below), taken together,
will not contain any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; provided, however, that the
foregoing does not apply to (I) that part of the Registration Statement which constitutes
the Statements of Eligibility of Qualification (Form T-1) of the Indenture Trustee or other
indenture trustees under the Trust Indenture Act or (II) Underwriter Information (as defined
in Section 9(b) hereof). As used herein the term “Designated Static Pool
Information” shall mean the static pool information referred to in the Preliminary
Prospectus and set forth in Appendix A — “Static Pool Information Regarding Certain
Previous Securitizations” but deemed to be excluded from the Registration and Prospectus
pursuant to Item 1105(d) of Regulation AB.
(iii) The Preliminary Prospectus at the Time of Sale did not, and at the Closing Date
will not, include any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading (it being understood that no
representation or warranty is made with respect to the omission of pricing and
price-dependent information, which information shall of necessity appear only in the final
Prospectus); provided, however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with information
3
contained in or omitted from either the Registration Statement or the Prospectus based
upon Underwriter Information (as defined in Section 9(b) hereof).
(iv) Other than the Preliminary Prospectus and the Prospectus, the Issuer (including
its agents and representatives other than the Underwriters in their capacity as such) has
not made, used, prepared, authorized, approved or referred to and will not prepare, make,
use, authorize, approve or refer to any “written communication”, including any “free writing
prospectus” (both as defined in Rule 405 under the Securities Act), that constitutes an
offer to sell or solicitation of any offer to buy the Notes.
(b) The documents incorporated by reference in the Registration Statement, the Preliminary
Prospectus, the Prospectus or any amendment or supplement thereto (other than documents filed by
Persons other than the Seller), when they became or become effective under the Securities Act or
were or are filed with the Commission under the Exchange Act, as the case may be, conformed or will
conform in all material respects with the requirements of the Securities Act or the Exchange Act,
as applicable, and the rules and regulations of the Commission thereunder.
(c) As of the Closing Date and as of the date hereof, the Seller’s representations and
warranties in the Transaction Documents will be true and correct.
(d) This Agreement has been duly authorized, executed and delivered by the Seller and VW
Credit.
(e) Neither the Seller nor VW Credit nor anyone acting on their behalf has taken any action
that would require registration of the Seller or the Issuer under the Investment Company Act of
1940, as amended (the “Investment Company Act”); nor will the Seller 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 December 31, 2007, there has not occurred any material adverse change, or any
development involving a prospective material adverse change, in or affecting the condition,
financial or otherwise, earnings, business or operations of the Seller, VW Credit or Volkswagen of
America, Inc. (“VWA”), and their respective subsidiaries, taken as a whole, except as
disclosed to you in writing prior to the date hereof.
(h) The Seller acknowledges that in connection with the offering of the Notes: (1) the
Underwriters have acted at arms’ length, are not agents of, and owe no fiduciary duties to, the
Seller or any other Person, (2) the Underwriters owe the Seller only those duties and obligations
set forth in this Agreement and (3) the Underwriters may have interests that differ from those of
the Seller. The Seller waives to the fullest extent permitted by applicable law any claims it may
have against the Underwriters arising from an alleged breach of fiduciary duty in connection with
the offer of the Notes.
4
(i) The Seller was not, on the date on which the first bona fide offer of the Notes sold
pursuant to this Agreement was made, an “ineligible issuer” as defined in Rule 405 under the
Securities Act.
SECTION 3. Purchase, Sale and Delivery of Notes. On the basis of the representations,
warranties and agreements herein contained, but subject to the terms and conditions herein set
forth, the Seller agrees to sell to each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Seller the respective principal amount of each class of Notes set
forth opposite the name of such Underwriter on Schedule I at a purchase price equal to the
following percentages of the aggregate principal amounts thereof: (i) in the case of the Class A-1
Notes, 99.89000%, (ii) in the case of the Class A-2-A Notes, 99.85882%, (iii) in the case of the
Class A-3-A Notes, 99.83503% and (iv) in the case of the Class A-4-B Notes, 99.80000%. Delivery of
and payment for the Notes shall be made at the offices of Xxxxx Xxxxx LLP, at 10:00 a.m. (New York
City time) on the Closing Date. Delivery of one or more global notes representing Notes shall be
made against payment of the aggregate purchase price in immediately available funds drawn to the
order of the Seller. The global notes to be so delivered shall be registered in the name of Cede &
Co., as nominee of The Depository Trust Company (“DTC”). The interests of beneficial
owners of the Notes will be represented by book entries on the records of DTC and participating
members thereof. Definitive Notes representing the Notes will be available only under limited
circumstances.
SECTION 4. Offering by Underwriters.
(a) Subject to the satisfaction of the conditions in Section 7, each Underwriter shall
purchase the Notes for resale upon the terms and conditions set forth in the Prospectus. If the
Prospectus specifies an initial public offering price or a method by which the price at which such
Notes are to be sold, then after the Notes are released for sale to the public, the Underwriters
may vary from time to time the public offering price, selling concessions and reallowances to
dealers that are members of the National Association of Securities Dealers, Inc. (“NASD”)
and other terms of sale hereunder and under such selling arrangements.
(b) Notwithstanding the foregoing, each Underwriter agrees that it has not and 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) Notwithstanding the foregoing, each Underwriter agrees that it has not and will not
violate any applicable securities laws in its offer or sale of any Notes within any other country,
its territories or possessions or to persons who are citizens thereof or residents therein.
(d) Each Underwriter agrees that:
(i) it has only communicated or caused to be communicated and will only communicate or
cause to be communicated any invitation or inducement to engage in investment activity
(within the meaning of Section 21 of the Financial Services and Markets Act 2000, as amended
(the “FSMA”) received by it in connection with the issue
5
or sale of any Notes in circumstances in which Section 21(1) of the FSMA does not apply
to the Issuer;
(ii) it has complied and will comply with all applicable provisions of the Public
Offers of Securities Regulations 1995, as amended (the “Regulations”) and the FSMA
with respect to anything done by it in relation to the Notes in, from or otherwise involving
the United Kingdom; and
(iii) after the Closing Date, it will provide the Seller with a list of all foreign
jurisdictions related to any written confirmations of sale of Notes it has sent.
(e) Each Underwriter agrees that (i) if the Prospectus is not delivered with the confirmation
in reliance on Rule 172 under the Securities Act, it will include in every confirmation sent out by
such Underwriter the notice required by Rule 173 under the Securities Act informing the investor
that the sale was made pursuant to the Registration Statement and that the investor may request a
copy of the Prospectus from such Underwriter; (ii) if a paper copy of the Prospectus is requested
by a person who receives a confirmation, such Underwriter shall deliver a printed or paper copy of
such Prospectus; and (iii) if an electronic copy of the Prospectus is delivered by an Underwriter
for any purpose, such copy shall be the same electronic file containing the Prospectus in the
identical form transmitted electronically to such Underwriter by or on behalf of the Seller
specifically for use by such Underwriter pursuant to this Section 4(e); for example, if the
Prospectus is delivered to an Underwriter by or on behalf of the Seller in a single electronic file
in .pdf format, then such Underwriter will deliver the electronic copy of the Prospectus in the
same single electronic file in .pdf format. Each Underwriter further agrees that if it delivers to
an investor the Prospectus in .pdf format, upon such Underwriter’s receipt of a request from the
investor within the period for which delivery of the Prospectus is required, such Underwriter will
promptly deliver or cause to be delivered to the investor, without charge, a paper copy of the
Prospectus.
(f) Prior to the Closing Date, the Representatives shall notify VW Credit and the Seller of
(i) the date on which the Preliminary Prospectus is first used and (ii) the time of the first
Contract of Sale to which such Preliminary Prospectus relates.
(g) Each Underwriter represents and agrees (i) that it did not enter into any Contract of Sale
for any Notes prior to the Time of Sale and (ii) that it will, at any time that such Underwriter is
acting as an “underwriter” (as defined in Section 2(a)(11) of the Securities Act) with respect to
the Notes, deliver to each investor to whom Notes are sold by it during the period prior to the
filing of the final Prospectus (as notified to the Underwriters by the Seller), prior to the
applicable time of any such Contract of Sale with respect to such investor, the Preliminary
Prospectus.
(h) In relation to each Member State of the European Economic Area which has implemented the
Prospectus Directive (each, a “Relevant Member State”), each Underwriter represents and
agrees with the Seller that with effect from and including the date on which the Prospectus
Directive is implemented in that Relevant Member State (the “Relevant Implementation Date”)
it has not made and will not make an offer of Notes to the public in that Relevant Member State
prior to the publication of a prospectus in relation to the Notes which has
6
been approved by the competent authority in that Relevant Member State or, where appropriate,
approved in another Relevant Member State and notified to the competent authority in that Relevant
Member State, all in accordance with the Prospectus Directive, except that it may, with effect from
and including the Relevant Implementation Date, make an offer of Notes to the public in that
Relevant Member State at any time:
(i) to legal entities that are authorised or regulated to operate in the financial
markets or, if not so authorised or regulated, whose corporate purpose is solely to invest
in securities; or
(ii) to any legal entity that has two or more of (1) an average of at least 250
employees during the last financial year; (2) a total balance sheet of more than €43,000,000
and (3) an annual net turnover of more than €50,000,000, as shown in its last annual or
consolidated accounts.
For the purposes of this Section 4(h), (A) the expression an “offer of Notes to
the public” in relation to any Notes in any Relevant Member State means the communication in
any form and by any means of sufficient information on the terms of the offer and the Notes to be
offered so as to enable an investor to decide to purchase or subscribe the Notes, as the same may
be varied in that Member State by any measure implementing the Prospectus Directive in that Member
State, (B) the expression “Prospectus Directive” means Directive 2003/71/EC and includes
any relevant implementing measure in each Relevant Member State and (C) the countries comprising
the “European Economic Area” are Austria, Belgium, Bulgaria, Cyprus, Czech Republic,
Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia,
Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Romania, Slovak
Republic, Slovenia, Spain, Sweden and the United Kingdom.
(i) If the Seller, VW Credit or an Underwriter determines or becomes aware that any “written
communication” (as defined in Rule 405 under the Securities Act) (including without limitation the
Preliminary Prospectus) or oral statement (when considered in conjunction with all information
conveyed at the time of the “contract of sale” within the meaning of Rule 159 under the Securities
Act and all Commission guidance relating to such rule (the “Contract of Sale”)) made or
prepared by the Seller or such Underwriter contains an untrue statement of material fact or omits
to state a material fact necessary to make the statements, in light of the circumstances under
which they were made, not misleading at the time that a Contract of Sale was entered into, either
the Seller or such Underwriter may prepare corrective information, with notice to the other party
and such Underwriter shall deliver such information in a manner reasonably acceptable to both
parties, to any person with whom a Contract of Sale was entered into based on such written
communication or oral statement, and such information shall provide any such person with the
following:
(i) adequate disclosure of the contractual arrangement;
(ii) adequate disclosure of the person’s rights under the existing Contract of Sale at
the time termination is sought;
7
(iii) adequate disclosure of the new information that is necessary to correct the
misstatements or omissions in the information given at the time of the original Contract of
Sale; and
(iv) a meaningful ability to elect to terminate or not terminate the prior Contract of
Sale and to elect to enter into or not enter into a new Contract of Sale.
If new Contracts of Sale are entered into in accordance with this Section 4(i), then
notwithstanding the definition of Time of Sale set forth in Section 1, “Time of Sale” shall
refer to the first time and date on which such new Contracts of Sale were entered into. Any costs
or losses incurred in connection with any such termination or reformation shall be subject to
Section 9.
SECTION 5. Covenants of the Seller. The Seller (and, with respect to clauses
(i), (j) and (k), VW Credit) covenants and agrees with the Underwriters that:
(a) If not already effective, the Seller will use its best efforts to cause the Registration
Statement, and any amendment thereto, to become effective. If the Registration Statement has
become or becomes effective pursuant to Rule 430A, or filing of the Prospectus is otherwise
required under Rule 424(b), the Seller will file the Prospectus, properly completed, and any
supplement thereto, with the Commission pursuant to and in accordance with the applicable Rules and
Regulations within the time period prescribed. The Seller will advise you promptly of any such
filing pursuant to Rule 424(b), or deemed effectiveness pursuant to Rule 462.
(b) The Seller will advise you promptly of: (i) any proposal to amend or supplement the
Registration Statement as filed, or the Preliminary Prospectus 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, the Preliminary Prospectus 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 Preliminary Prospectus or the Prospectus, and (iv) the issuance by the Commission or, if the
Seller has knowledge thereof, by any authority administering any state securities or blue sky laws
of any stop order suspending the effectiveness of the Registration Statement or the institution or
threat of any proceeding for that purpose, and the Seller will use its best efforts to prevent the
issuance of any such stop order and to obtain as soon as possible the lifting of any issued stop
order.
(c) If, during the period in which the Prospectus is required by federal securities law or
regulation (in the opinion of counsel for the Representatives) to be delivered in connection with
sales by any Underwriter or dealer, any event occurs as a result of which the Prospectus, as then
amended or supplemented, would include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading, or if it is necessary at any time to amend or
supplement the Prospectus to comply with the Securities Act, the Seller (in compliance with
subsection (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
8
such compliance. Any such filing shall not operate as a waiver or limitation of any rights of
the Underwriters hereunder.
(d) The Seller will make (or will cause the Issuer to make) generally available to the
Noteholders (the sole Noteholders being the applicable clearing agency in the case of Book-Entry
Notes (as defined in Appendix A to the Indenture)), in each case as soon as practicable, a
statement which will satisfy the provisions of Section 11 (a) of the Securities Act (including Rule
158 under the Securities Act) with respect to the Notes.
(e) The Seller will deliver to the Underwriters, without charge, copies of the Preliminary
Prospectus (and each other preliminary prospectus, if more than one has been prepared by the
Seller), 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 reasonably
request.
(f) The Seller will arrange to qualify the Notes for offer and sale under the securities or
blue sky laws of such jurisdictions as you reasonably shall request, and will maintain all such
qualifications for so long as required for the distribution of the Notes and, thereafter, to the
extent required by such jurisdictions.
(g) From the date hereof until the retirement of the Notes, or until none of the Underwriters
maintains a secondary market in the Notes, whichever occurs first, the Seller will deliver to each
of the Underwriters, through the Representatives, the annual statement of compliance and any annual
independent certified public accountants’ report furnished to the Indenture Trustee pursuant to the
Sale and Servicing Agreement, as soon as such statements and reports are furnished to the Indenture
Trustee.
(h) So long as any of the Notes are outstanding, the Seller will deliver to each of the
Underwriters, through the Representatives: (i) as soon as available, all documents required to be
filed with the Commission pursuant to the Exchange Act, or any order of the Commission thereunder,
(ii) all documents distributed to Noteholders and (iii) from time to time, any information
concerning the Seller or the Issuer filed with any governmental or regulatory authority that is
publicly available, as the Underwriters reasonably may request.
(i) On or before the Closing Date, VW Credit shall cause its computer records relating to the
Receivables to be marked to show the Issuer’s ownership of the Receivables, and from and after the
Closing Date neither the Seller nor VW Credit shall take any action inconsistent with the Issuer’s
ownership of the Receivables other than as permitted by the Transaction Documents.
(j) To the extent, if any, that any of the ratings assigned to the Notes by any of the rating
agencies that initially rate the Notes are conditional upon the furnishing of documents or the
taking of any other actions by the Seller or VW Credit, as the case may be, the relevant party
shall furnish, or cause to be furnished, such documents and take any such other actions as promptly
as possible.
(k) From the date hereof until seven days after the Closing Date, none of the Seller, VW
Credit or any trust, including the Issuer, originated, directly or indirectly, by the Seller or
9
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, motor vehicle
installment loans or retail installment sales contracts without the prior written consent of each
of the Underwriters.
SECTION 6. Payment of Expenses. Except as otherwise agreed in writing by the Seller
and the Representatives, the Seller will pay all expenses (including legal fees and disbursements)
incident to the transactions contemplated by this Agreement, including: (a) the printing and filing
of the Registration Statement, the Preliminary Prospectus, each other preliminary prospectus or
“written communication” (as defined in Rule 405 under the Securities Act) that constitutes an offer
to sell or a solicitation of an offer to buy the Notes, and the Prospectus, and each amendment or
supplement thereto, and delivery of copies thereof to the Underwriters, (b) the preparation of this
Agreement, (c) the preparation, issuance and delivery of the Notes to the Underwriters (or any
appointed clearing organizations), (d) the fees and disbursements of VW Credit’s and the Seller’s
counsel and accountants, (e) the qualification of the Notes under state securities laws in
accordance with Section 5(f), including filing fees and the fees and disbursements of
counsel in connection therewith and in connection with the preparation of any blue sky survey
(including the printing and delivery thereof to the Underwriters), (f) any fees charged by rating
agencies for the rating (or consideration of the rating) of the Notes, (g) the fees and expenses
incurred with respect to any filing with, and review by, the NASD, 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 Deutsche Bank Trust Company Delaware, acting in its capacity as
owner trustee (in such capacity, the “Owner Trustee”) under the Amended and Restated Trust
Agreement, dated as of May 9, 2008 (the “Trust Agreement”), between the Seller and the
Owner Trustee, and its counsel.
SECTION 7. Conditions of the Obligations of the Underwriters. The obligations of the
Underwriters to purchase and pay for the Notes will be subject to the accuracy of the
representations and warranties made herein, to the accuracy of the statements of officers made
pursuant hereto, to the performance by the Seller and VW Credit of their obligations hereunder, and
to the following additional conditions precedent:
(a) The Prospectus and any supplements thereto shall have been filed (if required) with the
Commission in accordance with the Securities Act; 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 Seller or the
Underwriters, shall be contemplated by the Commission or by any authority administering any state
securities or blue sky law.
(b) 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.
(c) After the date hereof, there shall not have occurred any change, or any development
involving a prospective change, in the condition, financial or otherwise, or in the
10
earnings, business or operations of the Issuer, the Seller, VW Credit or VWA, and their
respective subsidiaries, taken as a whole, that, in your judgment, is material and adverse and that
makes it impracticable to market the Notes on the terms and in the manner contemplated in the
Prospectus.
(d) You shall have received an opinion of Xxxxx X. Xxxxxx, counsel to the Seller and VW
Credit, addressed to you and the Indenture Trustee, dated the Closing Date and satisfactory in form
and substance to you and your counsel.
(e) (i) Xxxxx Xxxxx LLP, special counsel to the Seller, VW Credit and the Issuer, shall have
delivered an opinion or opinions, subject to customary qualifications, assumptions, limitations and
exceptions, dated the Closing Date, in form and substance reasonably satisfactory to the
Representatives, with respect to the general corporate matters, the validity of the Notes, the
Registration Statement, the Prospectus Supplement and the Prospectus, the effectiveness of such
Registration Statement and the information contained in each of the Registration Statement, the
Prospectus Supplement and the Prospectus; and (ii) Xxxxx Xxxxx LLP, special counsel to the Seller,
VW Credit and the Issuer, shall have delivered a negative assurance letter with respect to the most
recent Preliminary Prospectus delivered prior to the Time of Sale.
(f) You shall have received an opinion addressed to you, the Seller and the Servicer of Xxxxx,
Xxxxxx & Xxxxxx XXX, counsel to the Indenture Trustee, dated the Closing Date and satisfactory in
form and substance to you and your counsel.
(g) You shall have received an opinion addressed to you, the Seller and the Servicer of
Xxxxxxxx, Xxxxxx & Finger, P.A., counsel to the Owner Trustee and special Delaware counsel to the
Seller and the Issuer, dated the Closing Date and satisfactory in form and substance to you and
your counsel.
(h) You shall have received certificates dated the Closing Date of any two of the President,
the Chief Financial Officer, any Vice President, the Controller, the Treasurer, the Secretary,
Assistant Treasurer or the Assistant Secretary of the Seller and VW Credit in which such officers
shall state that: (A) the representations and warranties made by such entity contained in the
Transaction Documents and this Agreement are true and correct, that such party has complied with
all agreements and satisfied all conditions on its part to be performed or satisfied under such
agreements on or before the Closing Date, and no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose have been instituted or
are contemplated by the Commission or, to the knowledge of such officers, any authority
administering state securities or blue sky laws and (B) since December 31, 2007 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 Issuer, the Seller or the Servicer except as disclosed to you in writing prior to
the date of the Preliminary Prospectus.
(i) 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 to the Seller pursuant
to the Purchase Agreement, (B) the transfer of the interest of the Seller in
11
the Receivables thereof to the Issuer pursuant to the Sale and Servicing Agreement, and (C)
the grant by the Issuer to the Indenture Trustee under the Indenture of a security interest in the
interest of the Issuer in the Receivables.
(j) The Class A-1 Notes shall have been rated in the highest short-term rating category and
the Class A-2-A Notes, Class A-3-A Notes and Class A-4-B Notes shall have been rated in the highest
long-term rating category by at least Standard and Poor’s Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc., or Xxxxx’x Investors Service, Inc.
(k) You shall have received, from each of VW Credit and the Seller, a certificate executed by
a secretary or assistant secretary thereof to which shall be attached certified copies of the: (i)
organizational documents, (ii) applicable resolutions and (iii) designation of incumbency of each
such entity.
The Seller will provide or cause to be provided to you conformed copies of such opinions,
certificates, letters and documents as you or your counsel reasonably request.
SECTION 8. Termination. This Agreement shall be subject to termination by notice
given by you to the Seller if: (a) after the execution and delivery of this Agreement and prior to
the Closing Date: (i) trading generally shall have been suspended or materially limited on the New
York Stock Exchange; (ii) trading of any securities of Volkswagen AG shall have been suspended on
any exchange or in any over-the-counter market; (iii) any general moratorium on commercial banking
activities in New York shall have been declared by either Federal or New York State authorities; or
(iv) there shall have occurred any outbreak or escalation of hostilities or any change in financial
markets or any calamity or crisis that, in your judgment, is material and adverse, and (b) in the
case of any of the events specified above, such event singly or together with any other such event
makes it, in your judgment, impracticable to market the Notes on the terms and in the manner
contemplated in the Prospectus.
SECTION 9. Indemnification and Contribution. (a) The Seller and VW Credit will,
jointly and severally, indemnify and hold harmless each Underwriter, and each person, if any, who
controls such Underwriter within the meaning of either Section 15 of the Securities Act or Section
20 of the Exchange Act, from and against any losses, claims, damages and liabilities (including,
without limitation, any legal or other expenses incurred by any Underwriter or any such controlling
person in connection with defending or investigating any such action or claim) to which they or any
of them may become subject, under the Securities Act or otherwise, as incurred, 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, the Preliminary Prospectus (it being understood that such indemnification
with respect to the Preliminary Prospectus does not include the omission of pricing and
price-dependent information, which information shall of necessity appear only in the final
Prospectus), the Prospectus or any amendment, exhibit or supplement thereto, or the Designated
Static Pool Information, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances in which they were made, not misleading;
provided, however, that neither the Seller nor VW Credit will be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based upon an
12
untrue statement or alleged untrue statement in, or omission or alleged omission from, any of
such documents in reliance upon and in conformity with the Underwriter Information (as defined
below). This indemnity agreement will be in addition to any liability that the Seller or VW Credit
may otherwise have.
(b) Each Underwriter, severally and not jointly, agrees to indemnify and hold harmless the
Seller and VW Credit and their respective directors, officers who signed the Registration
Statement, and each person, if any, who controls such parties within the meaning of either Section
15 of the Securities Act or Section 20 of the Exchange Act, against any losses, claims, damages or
liabilities (including, without limitation, any legal or other expenses incurred by any of them in
connection with defending or investigating any such action or claim) to which any of them may
become subject, under the Securities Act or otherwise, as incurred, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based upon (i) any
untrue statement or alleged untrue statement of any material fact contained in the Registration
Statement, the 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 the Underwriter Information
(as defined below), and (ii) the failure upon the part of any Underwriter to deliver the
Preliminary Prospectus prior to the Time of Sale to any investor with whom such Underwriter entered
into a Contract of Sale at such Time of Sale. As used herein, the term “Underwriter
Information” means the information set forth in the fourth paragraph (regarding concessions and
discounts) and the second sentence of the fourteenth paragraph (regarding market making) under the
caption “Underwriting” in the Preliminary Prospectus or Prospectus. This indemnity agreement will
be in addition to any liability that each Underwriter may otherwise have.
(c) Each Underwriter, severally and not jointly, will indemnify and hold harmless the Seller
and VW Credit, and each person, if any, who controls the Seller or VW Credit within the meaning of
the Securities Act or the Exchange Act and the respective officers, directors and employees of each
such person, against any losses, claims, damages or liabilities to which the Seller or VW Credit
may become subject, under the Securities Act, the Exchange Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based
upon, (i) any untrue statement or alleged untrue statement of any material fact contained in any
Underwriter Free Writing Prospectus (defined below), 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 to
make the statements therein not misleading and (ii) any statement contained in any Underwriter Free
Writing Prospectus (defined below) that conflicts with the information then contained in the
Registration Statement or any prospectus or prospectus supplement that is a part thereof, and will
reimburse any legal or other expenses reasonably incurred by the Seller or VW Credit in connection
with investigating or defending any such loss, claim, damage, liability or action; provided,
however, that with respect to clauses (i) and (ii) above, no Underwriter will be
liable to the extent that any such loss, claim, damage or liability arises out of or is based upon
any statement in or omission from any Underwriter Free Writing Prospectus (defined below) in
reliance upon and in conformity with (A) any written
13
information furnished to the related Underwriter by the Seller or VW Credit expressly for use
therein, (B) information accurately extracted from the Preliminary Prospectus or Prospectus, which
information was not corrected by information subsequently provided by the Seller or VW Credit to
the related Underwriter prior to the time of use of such Underwriter Free Writing Prospectus
(defined below) or (C) Issuer Information (as defined below) (except for information regarding the
status of the subscriptions for the Notes). This indemnity agreement will be in addition to any
liability that each Underwriter may otherwise have.
(d) 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 Seller, in the case of parties
indemnified pursuant to subsection (a), and by the Representatives, 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 (i) includes an unconditional release of such indemnified party from all
liability on claims that are the subject matter of such proceeding and (ii) does not include any
statement as to or any admission of fault, culpability or a failure to act by or on behalf of such
indemnified party.
(e) 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 indemnified party as a result of the losses, claims, damages or liabilities
referred to in subsection (a) or (b): (i) in such proportion as is appropriate to
reflect the relative benefits received by the Seller, VW Credit, the Issuer and their affiliates on
the one hand and the Underwriters on the other from the offering of the Notes, or (ii) if the
allocation provided by
14
clause (i) is not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) but also the relative
fault of the Seller, VW Credit, the Issuer and their affiliates on the one hand and the
Underwriters on the other in connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable considerations.
The relative benefits received by the Seller, VW Credit, the Issuer and their affiliates on the one
hand and the Underwriters on the other in connection with the offering of the Notes shall be deemed
to be in the same proportion as the total net proceeds from the offering (before deducting expenses
other than underwriting discounts and commissions received by the Underwriters) received by the
Seller, VW Credit, the Issuer and their affiliates bear to the total underwriting discounts and
commissions received by the Underwriters. The relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information supplied by the
Seller, VW Credit, the Issuer or their affiliates or by any Underwriter, and the parties’ relative
intent, knowledge, access to information and opportunity to correct or prevent such untrue
statement or 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.
(f) 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 shall be required to contribute any amount in excess of the amount by which
the total underwriting discounts and commissions received by such Underwriter exceed the amount of
any damages that such Underwriter otherwise has been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution or indemnity from any person who was not guilty of such fraudulent misrepresentation.
The remedies provided for in this Section are not exclusive and shall not limit any rights or
remedies that otherwise may be available to any indemnified party at law or in equity.
SECTION 10. Defaults by an Underwriter. If any one or more Underwriter(s) fail(s) to
purchase and pay for any of the Notes agreed to be purchased by such Underwriter(s) hereunder, and
such failure constitutes a default in the performance of its or their obligations under this
Agreement, the remaining Underwriter(s) shall be obligated severally to take up and pay for (in the
respective proportions that the amount of Notes set forth opposite their names in Schedule
I bears to the aggregate amount of Notes set forth opposite the names of all the remaining
Underwriter(s)) the Notes that the defaulting Underwriter(s) agreed but failed to purchase;
provided, however, that if the aggregate amount of Notes that the defaulting Underwriter(s) agreed
but failed to purchase exceeds 10% of the aggregate principal amount of Notes, the remaining
Underwriter(s) shall have the right to purchase all, but shall not be under any
15
obligation to purchase any, of the Notes, and if such nondefaulting Underwriter(s) do not
purchase all the Notes, this Agreement will terminate without liability to any nondefaulting
Underwriter. In the event of a default by any Underwriter as set forth in this paragraph, the
Closing Date shall be postponed for such period, not exceeding seven days, as the remaining
Underwriter(s) shall determine in order that the required changes in the Registration Statement and
the Prospectus or in any other documents or arrangements may be effected. Nothing contained in
this Agreement shall relieve any defaulting Underwriter(s) of any liability to the Seller, VW
Credit, their affiliates or any nondefaulting Underwriter(s) for damages occasioned by its default
hereunder.
SECTION 11. Offering Communications. Other than the Preliminary Prospectus and the
Prospectus, each Underwriter severally represents, warrants and agrees with VW Credit and the
Seller that it has not made, used, prepared, authorized, approved or referred to and will not
prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule
405 under the Securities Act) that constitutes an offer to sell or solicitation of an offer to buy
the Notes, including, but not limited to any “ABS informational and computational materials” as
defined in Item 1101(a) of Regulation AB under the Securities Act unless such Underwriter has
obtained the prior written approval of VW Credit and the Seller; provided, however, each
Underwriter may prepare and convey to one or more of its potential investors without the consent of
VW Credit, the Seller or any of their respective affiliates one or more “written communications”
(as defined in Rule 405 under the Securities Act) in the form of (i) an Intex CDI file that does
not contain any Issuer Information (as defined below) other than Issuer Information included in the
Preliminary Prospectus previously filed with the Commission or (ii) other written communication
containing no more than the following: (a) information contemplated by Rule 134 under the
Securities Act, (b) information included or to be included in the Preliminary Prospectus or the
Prospectus, and (c) a column or other entry showing the status of the subscriptions for the Notes
and/or expected pricing parameters of the Notes (each such written communication, an
“Underwriter Free Writing Prospectus”). As used herein, the term “Issuer
Information” means any information of the type specified in clauses (1) – (5) of footnote 271
of Commission Release No. 33-8591 (Securities Offering Reform), other than Underwriter Derived
Information. As used herein, the term “Underwriter Derived Information” shall refer to
information of the type described in clause (5) of footnote 271 of Commission Release No. 33-8591
(Securities Offering Reform) when prepared by any Underwriter, including traditional computational
and analytical materials prepared by the Underwriter.
(a) Each Underwriter severally represents, warrants and agrees with VW Credit and the Seller
that:
(i) each Underwriter Free Writing Prospectus prepared by it will not, as of the date
such Underwriter Free Writing Prospectus was conveyed or delivered to any prospective
purchaser of Notes, include any untrue statement of a material fact or omit any material
fact necessary to make the statements contained therein, in light of the circumstances under
which they were made, not misleading; provided, however, that no Underwriter makes such
representation, warranty or agreement to the extent such untrue statements or omissions were
made in reliance upon and in conformity with information contained in the Preliminary
Prospectus or the Prospectus or any written information furnished to the related Underwriter
by VW Credit or the Seller specifically for use
16
therein which information was not corrected by information subsequently provided by VW
Credit or the Seller to the related Underwriter prior to the time of use of such Underwriter
Free Writing Prospectus;
(ii) each Underwriter Free Writing Prospectus prepared by it shall contain a legend
substantially in the form of and in compliance with Rule 433(c)(2)(i) of the Securities Act,
and shall otherwise conform to any requirements for “free writing prospectuses” under the
Securities Act;
(iii) each Underwriter Free Writing Prospectus prepared by it shall be delivered to VW
Credit and the Seller no later than the time of first use and, unless otherwise agreed to by
VW Credit and the Seller and the related Underwriter, such delivery shall occur no later
than 5:00 p.m. (Eastern Time) on the date of first use (which shall be no earlier than the
time that the Preliminary Prospectus is filed with the Commission); provided, however, if
the date of first use is not a Business Day, such delivery shall occur no later than 5:00
p.m. (Eastern Time) on the first Business Day preceding such date of first use;
(iv) none of the information in any Underwriter Free Writing Prospectus will conflict
with the information then contained in the Registration Statement or any prospectus or
prospectus supplement that is a part thereof;
(v) such Underwriter has in place, and covenants that it shall maintain, internal
controls and procedures which it reasonably believes to be sufficient to ensure full
compliance with all applicable legal requirements of the Securities Act and the rules and
regulations thereunder with respect to the generation and use of Underwriter Free Writing
Prospectuses in connection with the offering of the Notes. In addition, such Underwriter
shall, for a period of at least three years after the date hereof, maintain written and/or
electronic records of the following:
a. any Underwriter Free Writing Prospectus used by such Underwriter to solicit
offers to purchase Notes to the extent not filed with the Commission;
b. regarding each Underwriter Free Writing Prospectus delivered by such
Underwriter to an investor, the date of such delivery and identity of such investor;
and
c. regarding each Contract of Sale entered into by such Underwriter, the date,
identity of the investor and the terms of such Contract of Sale, as set forth in the
related confirmation of trade; and
(vi) such Underwriter shall file any Underwriter Free Writing Prospectus that has been
distributed by such Underwriter in a manner reasonably designed to lead to its broad,
unrestricted dissemination within the later of two business days after such Underwriter
first provides this information to investors and the date upon which the Seller is required
to file the Prospectus Supplement with the Commission pursuant to Rule 424(b)(3) of the
Securities Act or otherwise as required under Rule 433 of the
17
Securities Act; provided, however, that such Underwriter shall not be required to file
any Underwriter Free Writing Prospectus to the extent such Underwriter Free Writing
Prospectus includes information in a Free Writing Prospectus, Preliminary Prospectus or
Prospectus previously filed with the Commission or that does not contain substantive changes
from or additions to a Free Writing Prospectus previously filed with the Commission.
SECTION 12. No Bankruptcy Petition. Each Underwriter covenants and agrees that,
before the date that is one year and one day after the payment in full of all notes issued by the
Issuer or any other common law or statutory trust or limited liability company formed by the Seller
in connection with the issuance of securities, it will not institute against, or join any other
person in instituting against, the Seller, the Issuer or any other such trust or limited liability
company any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings or other
proceedings under any Federal or state bankruptcy or similar law.
SECTION 13. Survival of Representations and Obligations. The respective indemnities,
agreements, representations, warranties and other statements set forth in or made pursuant to this
Agreement or contained in certificates of officers submitted pursuant hereto shall remain operative
and in full force and effect, regardless of any investigation or statement as to the results
thereof, and will survive delivery of and payment for the Notes. If for any reason the purchase of
the Notes by the Underwriters is not consummated, the Seller shall remain responsible for the
expenses to be paid or reimbursed pursuant to Section 6 and the obligations pursuant to
Section 9 shall remain in effect. If for any reason the purchase of the Notes by the
Underwriters is not consummated, other than termination of this Agreement pursuant to Section
10, the Seller will reimburse the Underwriters severally, upon demand, for all out-of-pocket
expenses (including fees and disbursements of counsel) incurred by any Underwriter in connection
with the offering of the Notes.
SECTION 14. Notices. All communications hereunder will be in writing and will be
mailed or delivered and confirmed in each case as follows: (a) if to the Underwriters, to the
Representatives, at (i) in the case of Citigroup Global Markets Inc., at Citigroup Global Markets
Inc., 000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000, and (ii) in the case of
Deutsche Bank Securities Inc., at Deutsche Bank Securities Inc., 00 Xxxx Xxxxxx, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000; (b) if to the Seller, at Volkswagen Auto Lease/Loan Underwritten
Funding, LLC, 0000 Xxxxxxxxx Xxxxxxx Xxxxx, Xxxxxxx XX 00000, Attention: Corporate Secretary; and
(c) if to VW Credit, at VW Credit, Inc., 0000 Xxxxxxxxx Xxxxxxx Xxxxx, Xxxxxxx XX 00000, Attention:
Corporate Secretary.
SECTION 15. 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 16. Applicable Law, Entire Agreement. This Agreement will be governed by and
construed in accordance with the internal laws of the State of New York, without regard to the
principal of conflicts of laws thereof or any other jurisdiction (other than Sections 5-1401 and
5-1402 of the New York General Obligations Laws), and the
18
obligations, rights and remedies of the parties under this Agreement shall be determined in
accordance with such laws. This Agreement represents the entire agreement between the Seller and VW
Credit, on the one hand, and the Underwriters, on the other, with respect to the preparation of the
Prospectus or the Preliminary Prospectus, the conduct of the offering and the purchase and sale of
the Notes.
SECTION 17. 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 18. Amendment. Neither this Agreement nor any term hereof may be changed,
waived, discharged or terminated orally, but only by an instrument in writing signed by the party
against whom enforcement of the change, waiver, discharge or termination is sought.
SECTION 19. Headings. The headings in this Agreement are for the purposes of
reference only and shall not limit or otherwise affect the meaning hereof.
SECTION 20. Counterparts. This Agreement may be executed in counterparts, each of
which shall constitute an original, but all of which together shall constitute one instrument.
SECTION 21. Representation. You will act for the several Underwriters in connection
with the transactions contemplated by this Agreement, and any action under this Agreement taken by
you will be binding upon all the Underwriters.
SECTION 22. Submission to Jurisdiction. Each of the parties hereto hereby irrevocably
and unconditionally:
(a) submits for itself and its property in any legal action or proceeding relating to
this Agreement, any documents executed and delivered in connection herewith or for
recognition and enforcement of any judgment in respect thereof, to the non-exclusive general
jurisdiction of the courts of the State of New York, the courts of the United States of
America for the Southern District of New York, and appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought in such courts and
waives any objection that it may now or hereafter have to the venue of such action or
proceeding in any such court or that such action or proceeding was brought in an
inconvenient court and agrees not to plead or claim the same;
(c) agrees that service of process in any such action or proceeding may be effected by
mailing a copy thereof by registered or certified mail (or any substantially similar form of
mail), postage prepaid, to such Person at its address set forth in Section 13 or, if
not therein, in the Indenture; and
(d) agrees that nothing herein shall affect the right to effect service of process in
any other manner permitted by law or shall limit the right to sue in any other jurisdiction.
19
[signature pages follow]
20
If the foregoing is in accordance with your understanding of our agreement, kindly sign and
return to us the enclosed duplicate hereof, whereupon it will become a binding agreement among the
undersigned and the remaining Underwriters.
Very truly yours, | ||||||
VOLKSWAGEN AUTO LEASE/LOAN UNDERWRITTEN FUNDING, LLC | ||||||
By: Name: |
/s/ Xxxxxx Xxxxxxx
|
|||||
Title: | Treasurer | |||||
By: Name: |
/s/ Xxxxxxxx Xxxxx
|
|||||
Title: | Ass. Treasurer | |||||
VW CREDIT, INC. | ||||||
By: Name: |
/s/ Xxxxxx Xxxxxxx
|
|||||
Title: | Treasurer | |||||
By: Name: |
/s/ Xxxxxxxx Xxxxx
|
|||||
Title: | Ass. Treasurer |
S-1 | VALET 2008-1 Underwriting Agreement |
The foregoing Underwriting Agreement is hereby confirmed and accepted as of the date first written above. | ||||
CITIGROUP GLOBAL MARKETS INC. | ||||
By:
|
/s/ Xxxxx Xxxxxx
|
|||
Title: Director | ||||
DEUTSCHE BANK SECURITIES INC. | ||||
By:
|
/s/ Xxx Xxxxxxx
|
|||
Title: Managing Director | ||||
By:
|
Xxx Xx Xxxxx
|
|||
Title: Director |
For themselves and as representatives of the other several Underwriters named in the Underwriting
Agreement.
S-2 | VALET 2008-1 Underwriting Agreement |
SCHEDULE I
to Underwriting Agreement
to Underwriting Agreement
The Underwriters named below are the “Underwriters” for the purpose of this Agreement.
Class | Class | Class | Class | |||||||||||||||||
Underwriter | A-1 Notes | A-2-A Notes | A-3-A Notes | A-4-B Notes | Total | |||||||||||||||
Citigroup Global
Markets Inc. |
$ | 122,500,000 | $ | 50,834,000 | $ | 42,500,000 | $ | 35,743,000 | $ | 251,577,000 | ||||||||||
Deutsche Bank
Securities Inc. |
$ | 122,500,000 | $ | 50,834,000 | $ | 42,500,000 | $ | 35,743,000 | $ | 251,577,000 | ||||||||||
Barclays Capital
Inc. |
$ | 0 | $ | 50,833,000 | $ | 42,500,000 | $ | 35,741,000 | $ | 129,074,000 | ||||||||||
BNP Paribas
Securities Corp. |
$ | 0 | $ | 50,833,000 | $ | 42,500,000 | $ | 35,741,000 | $ | 129,074,000 | ||||||||||
HSBC Securities
(USA) Inc. |
$ | 0 | $ | 50,833,000 | $ | 42,500,000 | $ | 35,741,000 | $ | 129,074,000 | ||||||||||
Greenwich Capital
Markets, Inc. |
$ | 0 | $ | 50,833,000 | $ | 42,500,000 | $ | 35,741,000 | $ | 129,074,000 | ||||||||||
Total |
$ | 245,000,000 | $ | 305,000,000 | $ | 255,000,000 | $ | 214,450,000 | $ | 1,019,450,000 | ||||||||||
I-1