EXHIBIT 1.1
VOLKSWAGEN AUTO LEASE TRUST 2005-A
VOLKSWAGEN AUTO LEASE UNDERWRITTEN FUNDING, LLC
(TRANSFEROR)
$425,000,000 % AUTO LEASE ASSET BACKED CLASS A-1 NOTES
$420,000,000 % AUTO LEASE ASSET BACKED CLASS A-2 NOTES
$485,000,000 % AUTO LEASE ASSET BACKED CLASS A-3 NOTES
$170,000,000 % AUTO LEASE ASSET BACKED CLASS A-4 NOTES
UNDERWRITING AGREEMENT
February __ ,2005
Citibank Global Markets Inc.
As Representative of the
Several Underwriters
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
SECTION 1. Introductory. Volkswagen Auto Lease Underwritten Funding, LLC
(the "Transferor") proposes to cause Volkswagen Auto Lease Trust 2005-A (the
"Issuer") to transfer $425,000,000 aggregate principal amount of % Auto
Lease Asset Backed Class A-1 Notes, $420,000,000 aggregate principal amount of
% Auto Lease Asset Backed Class A-2 Notes, $485,000,000 aggregate principal
amount of % Auto Lease Asset Backed Class A-3 Notes and $170,000,000
aggregate principal amount of % Auto Lease Asset Backed Class A-4 Notes
(collectively, the "Notes"), to the several underwriters set forth on Schedule I
(each, an "Underwriter" and collectively, the "Underwriters"), for whom you are
acting as representative (the "Representative"). The Notes will be issued
pursuant to an Indenture, dated as of March 3, 2005 (the "Indenture"), between
the Issuer and JPMorgan Chase Bank, N.A., as indenture trustee (in such
capacity, the "Indenture Trustee"). The assets of the Issuer include, among
other things, a special unit of beneficial interest in VW Credit Leasing, Ltd.
(the "Transaction SUBI"), which represents the beneficial interest in a
portfolio of automobile leases, the related leased vehicles and certain related
rights. The Transaction SUBI will be sold to the Issuer by the Transferor and
will be serviced for the Issuer by VW Credit, Inc. ("VW Credit"), as servicer
(the "Servicer").
Capitalized terms used but not otherwise defined herein shall have the
meanings set forth in Appendix A to the Indenture.
SECTION 2. Representations and Warranties. The Transferor represents and
warrants to and agrees with you that:
(a) The Transferor has filed with the Securities and Exchange Commission
(the "Commission") a registration statement (Registration No. 333-121824),
including a preliminary
prospectus, on Form S-1 for the registration under the Securities Act of 1933,
as amended (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) or
(ii) a final prospectus in accordance with Rules 430A 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.
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 424", "Rule
430A", "Rule 462" and "Regulation S-K" refer to such rules or regulations under
the Securities Act.
The registration statement on Form S-1, 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), 462(c) or 462(d) for such
registration statement to become effective upon filing with the Commission (the
"Rule 462 Registration Statement"), then any reference to the "Registration
Statement" shall be deemed to refer to both the earlier effective registration
statement and the Rule 462 Registration Statement, in each case as amended from
time to time.
(b) At the Execution Time and on the Effective Date, the Registration
Statement did or will, when the Prospectus is first filed (if required) in
accordance with Rule 424(b), and on the Closing Date (as defined below) the
Prospectus (and any supplements thereto) will, comply in all
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material respects with the applicable requirements of the Securities Act and the
rules and regulations of the Commission (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, the Transferor'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
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
Issuer under the Investment Company Act of 1940, as amended (the "Investment
Company Act"); nor will the Transferor nor VW Credit act, nor has either of them
authorized nor will either of them authorize any person to act, in such manner.
(f) The Indenture has been duly qualified under the Trust Indenture Act of
1939 (the "Trust Indenture Act"), as amended.
(g) Since September 30, 2004 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 Issuer
to sell to each Underwriter, and each Underwriter agrees, severally and not
jointly, to purchase from the Issuer the respective principal amount of each
class of Notes set forth opposite the name of such Underwriter on Schedule I at
a purchase price equal to the following percentages of the aggregate principal
amounts thereof, (i) in the case of the Class A-1 Notes, %, (ii) in the
case of the Class A-2-A Notes, %, (iii) in the case of the Class A-3 Notes,
% and (iv) in the case of the Class A-4 Notes, %. Delivery of and
payment for the Notes shall be made at the offices of ▇▇▇▇▇, Brown, ▇▇▇▇ & Maw
LLP, at 10:00 a.m. (New York City time) on March 3, 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
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"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.
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(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 Issuer to make generally available to holders of the Notes (each, a
"Noteholder") an earnings statement of the Issuer covering a period of at least
twelve months beginning after the Effective Date that will satisfy the
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 Transaction SUBI Servicing Supplement, 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 Issuer filed
with any governmental or regulatory authority that is publicly available, as the
Underwriters reasonably may request.
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(i) On or before the Closing Date, VW Credit shall cause its computer
records relating to the Origination Trust Assets to be marked to show the
allocation of the Transaction Units to the Transaction SUBI and the Issuer's
ownership of the Transaction SUBI, and from and after the Closing Date neither
the Transferor nor VW Credit shall take any action inconsistent with the
Issuer's ownership of the Transaction SUBI and the beneficial interest in the
Transaction Units, other than as permitted by the Transaction Documents.
(j) To the extent, if any, that any of the ratings assigned to the Notes
by any of the rating agencies that initially rate the Notes are conditional upon
the furnishing of documents or the taking of any other actions by the 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 nor any trust, including the Issuer, 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, automobile
leases and the related leased vehicles without the prior written consent of each
of the Underwriters.
SECTION 6. Payment of Expenses. Except as otherwise agreed in writing by
the 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 (Delaware), acting in its
capacity as owner trustee (in such capacity, the "Owner Trustee") under the
Amended and Restated Trust Agreement, dated as of March 3, 2005 (the "Trust
Agreement"), between the Transferor and the Owner Trustee, and its counsel, if
any, and (j) the fees and disbursements of U.S. Bank National Association, in
its capacities as UTI Trustee (the "UTI Trustee") and Administrative Trustee
(the "Administrative Trustee"), and Wilmington Trust Company, as Delaware
Trustee (the "Delaware Trustee", and together with the UTI Trust and the
Administrative Trustee, the "Origination Trustees") under the Trust Agreement,
dated as of June 9, 1999 (the "Origination Trust Agreement"), between VW Credit
and the Origination Trustees. The Underwriters have agreed to reimburse the
Transferor for certain amounts of the out-of-pocket expenses relating to the
issuance of the Notes.
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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, independent certified
public accountants, substantially in the form of the drafts to which you have
agreed previously and otherwise substantially in form and substance reasonably
satisfactory to you and your counsel.
(d) After the Execution Time, there shall not have occurred any change, or
any development involving a prospective change, in the condition, financial or
otherwise, or in the earnings, business or operations of the Issuer, the
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 or inadvisable 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 Issuer, addressed to you and the Indenture
Trustee, dated the Closing Date and satisfactory in form and substance to you
and your counsel.
(f) ▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇ & Maw LLP, special counsel to you, the Transferor,
VW Credit and the Issuer, shall have delivered an opinion or opinions
satisfactory in form and substance to you, dated the Closing Date and addressed
to you and the Indenture Trustee.
(g) You shall have received an opinion addressed to you, the 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 ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., counsel to the Owner
Trustee and special Delaware
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counsel to the Origination Trust and the SUBI 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 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, 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 September 30, 2004 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 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 Transaction SUBI and the proceeds thereof to the
Transferor pursuant to the SUBI Sale Agreement, (B) the transfer of the interest
of the Transferor in the SUBI Sale Agreement, the Transaction SUBI and the
proceeds thereof to the Issuer pursuant to the SUBI Transfer Agreement, and (C)
the grant by the Issuer to the Indenture Trustee under the Indenture of a
security interest in the interest of the Issuer in the SUBI Sale Agreement, the
SUBI Transfer Agreement, the Transaction SUBI and the proceeds thereof.
(k) The Notes shall have been rated in the highest long-term rating
category by Standard and Poor's Ratings Services, a division of The ▇▇▇▇▇▇-▇▇▇▇
Companies, Inc. and ▇▇▇▇▇'▇ Investors Service, Inc.
(l) 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
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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 or inadvisable 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
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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 Issuer and their
affiliates on the one hand and the Underwriters on the other from the offering
of the Notes, or (ii) if the allocation provided by clause (i) is not permitted
by applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) but also the relative fault of the
Transferor, 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
Transferor, 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
10
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 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 Transferor, 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.
(e) The parties hereto agree that it would not be just or equitable if
contribution pursuant to this Section were determined by pro rata allocation
(even if the Underwriters were treated as one entity for such purpose) or by any
other method of allocation that does not take account of the equitable
considerations referred to in the preceding paragraph. The amount paid or
payable by an indemnified party as a result of the losses, claims, damages and
liabilities referred to in the preceding paragraph shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the other provisions of
this Section, no Underwriter (except as may be provided in the agreement among
Underwriters relating to the offering of the Notes) shall be required to
contribute any amount in excess of the amount by which the total underwriting
discounts and commissions received by such Underwriter exceed the amount of any
damages that such Underwriter otherwise has been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution or indemnity from
any person who was not guilty of such fraudulent misrepresentation. The remedies
provided for in this Section are not exclusive and shall not limit any rights or
remedies that otherwise may be available to any indemnified party at law or in
equity.
SECTION 10. Defaults by an Underwriter. If any one or more Underwriter(s)
fail(s) to purchase and pay for any of the Notes agreed to be purchased by such
Underwriter(s) hereunder, and such failure constitutes a default in the
performance of its or their obligations under this Agreement, the remaining
Underwriter(s) shall be obligated severally to take up and pay for (in the
respective proportions that the amount of Notes set forth opposite their names
in Schedule I bears to the aggregate amount of Notes set forth opposite the
names of all the remaining Underwriter(s)) the Notes that the defaulting
Underwriter(s) agreed but failed to purchase; provided, however, that if the
aggregate amount of Notes that the defaulting Underwriter(s) agreed but failed
to purchase exceeds 10% of the aggregate principal amount of Notes, the
remaining Underwriter(s) shall have the right to purchase all, but shall not be
under any obligation to purchase any, of the Notes, and if such nondefaulting
Underwriter(s) do not purchase all the Notes, this Agreement will terminate
without liability to any nondefaulting Underwriter. In the event of a default by
any Underwriter as set forth in this paragraph, the Closing Date shall be
postponed for such period, not exceeding seven days, as the remaining
Underwriter(s) shall determine in order that the required changes in the
Registration Statement and the Prospectus or in any other documents or
arrangements may be effected. Nothing
11
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 Issuer or any other common law or statutory trust 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 Issuer, the Origination Trust or any other such trust 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 Citibank Global Markets Inc., ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, Director; (b) to the Transferor at Volkswagen Auto Lease Underwritten
Funding, LLC, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, 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
CONFLICT OF LAW PROVISIONS.
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.
12
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 set forth in Section 13 or, if not therein, in
Section 11.4 of the Indenture; and
(d) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit the
right to sue in any other jurisdiction.
[signature pages follow]
13
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us the enclosed duplicate hereof, whereupon
it will become a binding agreement among the undersigned and the remaining
Underwriters.
Very truly yours,
VOLKSWAGEN AUTO LEASE
UNDERWRITTEN FUNDING, LLC
By:___________________________________
Name:_________________________________
Title:________________________________
By:___________________________________
Name:_________________________________
Title:________________________________
VW CREDIT, INC.
By:___________________________________
Name:_________________________________
Title:________________________________
By:___________________________________
Name:_________________________________
Title:________________________________
S-1
The foregoing Underwriting Agreement is hereby confirmed and accepted as of the
date first written above.
CITIBANK GLOBAL MARKETS INC.,
on behalf of itself and as Representative
of the several Underwriters
By:________________________________________
Name:__________________________________
Title:_________________________________
S-2
SCHEDULE I
to Underwriting Agreement
CLASS A-1 CLASS A-2 CLASS A-3 CLASS A-4
UNDERWRITER NOTES NOTES NOTES NOTES TOTAL
------------------------------ --------- --------- --------- --------- -----
Citigroup Global Markets Inc. $ $ $ $ $
Barclays Capital Inc. $ $ $ $ $
ABN AMRO Incorporated $ $ $ $ $
BNP Paribas Securities Corp $ $ $ $ $
Greenwich Capital Markets, Inc. $ $ $ $ $
HSBC Securities (USA) Inc. $ $ $ $ $
HVB Capital Markets, Inc. $ $ $ $ $
TOTAL $425,000,000 $420,000,000 $485,000,000 $170,000,000 $1,500,000,000
I-1