EXHIBIT 1.1
VOLKSWAGEN AUTO LOAN ENHANCED [TRUST] [LLC] 200_-_
VOLKSWAGEN PUBLIC AUTO LOAN SECURITIZATION, LLC
(SELLER)
$______ ____% AUTO LOAN ASSET BACKED CLASS A-1 NOTES
$______ ____% AUTO LOAN ASSET BACKED CLASS A-2 NOTES
FORM OF UNDERWRITING AGREEMENT
_________, 200__
--------------------------
As Representative of the
Several Underwriters
==========================
Ladies and Gentlemen:
SECTION 1. Introductory. Volkswagen Public Auto Loan Securitization,
LLC (the "Seller") proposes to cause Volkswagen Auto Loan Enhanced [Trust] [LLC]
200_-_ (the "Issuer") to transfer $___________ aggregate principal amount of
____% Auto Loan Asset Backed Class A-1 Notes and $___________aggregate principal
amount of ____% Auto Loan Asset Backed Class A-2 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 ___________, 200__ (the "Indenture"), between the Issuer
and ____________, as indenture trustee (in such capacity, the "Indenture
Trustee"). The assets of the Issuer include, among other things, motor vehicle
retail installment sale contracts or installment loans secured by a combination
of new or used automobiles or light-duty trucks (the "Receivables") and certain
related rights. The Receivables will be sold to the Issuer by the Seller and
will be serviced for the Issuer by VW Credit, Inc. ("VW Credit"), as servicer
(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 Seller represents and
warrants to and agrees with you that:
(a) The Seller meets the requirements for use of a Form S-3 under the
Securities Act of 1933, as amended (the "Securities Act"), and has filed with
the Securities and Exchange Commission (the "Commission") a registration
statement (Registration No. __________), including a preliminary prospectus, on
Form S-3 for the registration under the Securities Act of the Notes. The Seller
may have filed one or more amendments thereto, including the preliminary
prospectus, each of which has been furnished to you. The Seller will file with
the Commission
either: (i) before the effectiveness of the Registration Statement (as defined
below), a further amendment thereto (including the form of final prospectus),
(ii) a final prospectus in accordance with Rules 430A and 424(b)(1) or (4) or
(iii) a final prospectus in accordance with Rules 415 and 424(b)(2) or (5). In
the case of a post-effective filing pursuant to clause (ii), the Seller will
have included in the Registration Statement, as amended at the Effective Time
(as defined below), all information (other than Rule 430A Information (as
defined below)) required by the Securities Act and the rules thereunder to be
included in the final prospectus with respect to the Notes and the offering
thereof. The amendment and form of final prospectus, or final prospectus, filed
pursuant to clause (i), (ii) or (iii) shall include all Rule 430A Information
and all other required information with respect to the Notes and, except to the
extent that you shall agree in writing to a modification, shall be in all
substantive respects in the form furnished to you before the Execution Time or,
to the extent not completed at the Execution Time, shall contain only such
specific additional information and other changes (beyond that contained in the
latest preliminary prospectus that has been furnished to you) as the Seller has
advised you, before the Execution Time, will be included or made therein. If the
Registration Statement contains the undertaking specified by Regulation S-K Item
512(a)(2), the Registration Statement at the Execution Time meets, and at the
Effective Time will meet, the requirements set forth in Rule 415(a)(1)(x) and
all applicable rules and regulations of the Commission (the "Rules and
Regulations").
For purposes of this Underwriting Agreement (this "Agreement"),
"Effective Time" means the date and time as of which the Registration Statement,
or the most recent post-effective amendment thereto, if any, was declared
effective by the Commission; and "Effective Date" means the date of the
Effective Time. The form of the final prospectus relating to the Notes as filed
with the Commission pursuant to and in accordance with Rule 424(b) or, if no
filing pursuant thereto is required, the form of the final prospectus included
in the Registration Statement at the Effective Time, is hereinafter referred to
as the "Prospectus". "Execution Time" shall mean the date and time that this
Agreement is executed and delivered by all the parties hereto. "Preliminary
Prospectus" shall mean any preliminary prospectus referred to above and any
preliminary prospectus included in the Registration Statement that at the
Effective Time omits Rule 430A Information. "Rule 430A Information" means
information with respect to the Notes and the offering of the Notes permitted to
be omitted from the Registration Statement when it becomes effective pursuant to
Rule 430A. "Rule 415", "Rule 424", "Rule 430A", "Rule 462" and "Regulation S-K"
refer to such rules or regulations under the Securities Act. Any reference
herein to the Registration Statement, a Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 that were filed under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), before the Effective Time
or the issue date of such Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include the filing of any document under the Exchange Act
after the Effective Time or the issue date of any Preliminary Prospectus or the
Prospectus, as the case may be; and any reference herein to the terms "amend",
"amendment" or "supplement" with respect to the Registration Statement, any
Preliminary Prospectus or the Prospectus, as the case may be, deemed to be
incorporated therein by reference.
The registration statement on Form S-3, as existing at the Effective
Time, including all information deemed to be a part of such registration
statement at the Effective Time pursuant to Rule 430A(b), and including the
exhibits thereto and any material incorporated by reference therein, is
hereinafter referred to as the "Registration Statement"; provided, however, that
if the
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Seller files a registration statement and relies on Rule 462(b), 462(c) or
462(d) for such registration statement to become effective upon filing with the
Commission (the "Rule 462 Registration Statement"), then any reference to the
"Registration Statement" shall be deemed to refer to both the earlier effective
registration statement and the Rule 462 Registration Statement, in each case as
amended from time to time.
(b) At the Execution Time and on the Effective Date, the Registration
Statement did or will, when the Prospectus is first filed (if required) in
accordance with Rule 424(b), and on the Closing Date (as defined below) the
Prospectus (and any supplements thereto) will, comply in all material respects
with the applicable requirements of the Securities Act and the Rules and
Regulations. On the Effective Date, the Registration Statement will not contain
any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and the Prospectus
(together with any supplement thereto): (i) on the Effective Date, if not filed
pursuant to Rule 424(b), did not or will not, or (ii) on the date of any filing
pursuant 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 Seller makes no representations or warranties as to
the information contained in or omitted from the Registration Statement or the
Prospectus (or any supplement thereto) in reliance upon and in conformity with
information furnished in writing to the Seller by any Underwriter through the
Representative specifically for use in connection with the preparation of the
Registration Statement or the Prospectus (or any supplement thereto).
(c) As of the Closing Date, 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 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 __________, 200__, 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.
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
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forth, the Seller agrees to cause the Issuer to sell to each Underwriter, and
each Underwriter agrees, severally and not jointly, to purchase from the Issuer
the respective principal amount of each class of Notes set forth opposite the
name of such Underwriter on Schedule I at a purchase price equal to the
following percentages of the aggregate principal amounts thereof, (i) in the
case of the Class A-1 Notes, _______% and (ii) in the case of the Class A-2
Notes, ________%. Delivery of and payment for the Notes shall be made at the
offices of Mayer, Brown, ▇▇▇▇ & Maw, at 10:00 a.m. (New York City time) on
_________, 200__ (or at such other place and time on the same or other date as
shall be agreed to in writing by the Representative and the Seller, the "Closing
Date"). Delivery of one or more global notes representing the 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. 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.
SECTION 5. Covenants of the Seller. The Seller (and, with respect to
clauses (i) and (j), VW Credit) covenants and agrees with the Underwriters that:
(a) If not already effective, the Seller will use its best efforts to
cause the Registration Statement, and any amendment thereto, to become
effective. If the Registration Statement has become or becomes effective
pursuant to Rule 430A, or filing of the Prospectus is otherwise required under
Rule 424(b), the Seller will file the Prospectus, properly completed, and any
supplement thereto, with the Commission pursuant to and in accordance with the
applicable Rules and Regulations within the time period prescribed. The Seller
will advise you promptly of any such filing pursuant to Rule 424(b), or deemed
effectiveness pursuant to Rule 462.
(b) The Seller will advise you promptly of: (i) any proposal to amend
or supplement the Registration Statement as filed, or the Prospectus, and will
not effect such amendment or supplement without first furnishing to you a copy
of each such proposed amendment or supplement and obtaining your consent, which
consent will not unreasonably be withheld, (ii) any request by the Commission
for any amendment of or supplement to the Registration Statement or the
Prospectus or for any additional information, (iii) the effectiveness of the
Registration Statement, or of any amendment or supplement thereto or to the
Prospectus, and (iv) the issuance by the Commission or, if the Seller has
knowledge thereof, by any authority administering any state securities or blue
sky laws of any stop order suspending the effectiveness of the Registration
Statement or the institution or threat of any proceeding for that purpose, and
the Seller will use its best efforts to prevent the issuance of any such stop
order and to obtain as soon as possible the lifting of any issued stop order.
(c) If, during the period in which the Prospectus is required by 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,
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would include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading, or if it is
necessary at any time to amend or supplement the Prospectus to comply with the
Securities Act, the Seller (in compliance with clause (b)) promptly will prepare
and file, or cause to be prepared and filed, with the Commission an amendment or
supplement that will correct such statement or omission or effect such
compliance. Any such filing shall not operate as a waiver or limitation of any
rights of the Underwriters hereunder.
(d) As soon as practicable, but not later than sixteen months after the
original effective date of the Registration Statement, the Seller will cause the
Issuer to make generally available to holders of the Notes (each, a
"Noteholder") an earnings statement of the Issuer covering a period of at least
twelve months beginning after the Effective Date that will satisfy the
provisions of Section 11(a) of the Securities Act and all applicable Rules and
Regulations (including Rule 158 under the Securities Act).
(e) The Seller will deliver to the Underwriters, without charge, copies
of 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 Seller agrees to make all commercially
reasonable efforts to deliver copies thereof in New York City, prior to 10:00
a.m., on the business day after the Execution Date, in such quantities and to
such recipients as the Representative may request).
(f) The Seller will arrange to qualify the Notes for offer and sale
under the securities or blue sky laws of such jurisdictions as you reasonably
shall request, and will maintain all such qualifications for so long as required
for the distribution of the Notes and, thereafter, to the extent required by
such jurisdictions.
(g) From the Execution Time until the retirement of the Notes, or until
none of the Underwriters maintains a secondary market in the Notes, whichever
occurs first, the Seller will deliver to each of the Underwriters, through the
Representative, the annual statement of compliance and any annual independent
certified public accountants' report furnished to the Indenture Trustee pursuant
to the Sale and Servicing Agreement, as soon as such statements and reports are
furnished to the Indenture Trustee.
(h) So long as any of the Notes are outstanding, the Seller will
deliver to each of the Underwriters, through the Representative: (i) as soon as
practicable after the end of each fiscal year, all documents required to be
filed with the Commission pursuant to the Exchange Act, or any order of the
Commission thereunder, (ii) all documents distributed to Noteholders and (iii)
from time to time, any information concerning the Seller or the Issuer filed
with any governmental or regulatory authority that is publicly available, as the
Underwriters reasonably may request.
(i) On or before the Closing Date, VW Credit shall cause its computer
records relating to the Receivables 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
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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 Execution Time until seven days after the Closing Date,
none of the Seller, VW Credit or any trust, including the Issuer, originated,
directly or indirectly, by the Seller or VW Credit will offer to sell or sell
anywhere any securities similar to the Notes that are collateralized by
(directly or indirectly), or evidence an ownership interest in, automobile loans
and the related security without the prior written consent of each of the
Underwriters.
SECTION 6. Payment of Expenses. Except as otherwise agreed in writing
by the Seller and the Representative, the Seller will pay all expenses
(including legal fees and disbursements) incident to the transactions
contemplated by this Agreement, including: (a) the printing and filing of the
Registration Statement, each Preliminary Prospectus and the Prospectus, and each
amendment or supplement thereto, and delivery of copies thereof to the
Underwriters, (b) the preparation of this Agreement, (c) the preparation,
issuance and delivery of the Notes to the Underwriters (or any appointed
clearing organizations), (d) the fees and disbursements of VW Credit's and the
Seller's counsel and accountants, (e) the qualification of the Notes under state
securities laws in accordance with Section 5(f), including filing fees and the
fees and disbursements of counsel in connection therewith and in connection with
the preparation of any blue sky survey (including the printing and delivery
thereof to the Underwriters), (f) any fees charged by rating agencies for the
rating (or consideration of the rating) of the Notes, (g) the fees and expenses
incurred with respect to any filing with, and review by, the National
Association of Securities Dealers, Inc., DTC or any similar organizations, (h)
the fees and disbursements of the Indenture Trustee and its counsel, if any, and
(i) the fees and disbursements of _______________, acting in its capacity as
owner trustee (in such capacity, the "Owner Trustee") under the Trust Agreement,
dated as of __________, 200__ (the "Trust Agreement"), between the Seller and
the Owner Trustee. The Underwriters have agreed to reimburse the Seller for
certain amounts of the out-of-pocket expenses relating to the issuance of the
Notes.
SECTION 7. Conditions of the Obligations of the Underwriters. The
obligations of the Underwriters to purchase and pay for the Notes will be
subject to the accuracy of the representations and warranties made herein, to
the accuracy of the statements of officers made pursuant hereto, to the
performance by the Seller and VW Credit of their obligations hereunder, and to
the following additional conditions precedent:
(a) If the Registration Statement has not become effective before the
Execution Time, and unless the Representative agrees in writing to a later time,
the Registration Statement shall have become effective not later than: (i) 6:00
p.m. (New York City time) on the date of determination of the public offering
price, if such determination occurred no later than 3:00 p.m. (New York City
time) on such date or (ii) otherwise, noon on the business day after the day on
which the public offering price was determined.
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(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 Seller or the Underwriters, shall be contemplated by the Commission or by
any authority administering any state securities or blue sky law.
(c) Both at or before the Execution Time, and on or before the Closing
Date, you shall have received letters, dated as of the date hereof and as of the
Closing Date, respectively, of PricewaterhouseCoopers, independent certified
public accountants, substantially in the form of the drafts to which you have
agreed previously and otherwise substantially in form and substance reasonably
satisfactory to you and your counsel.
(d) After the Execution Time, there shall not have occurred any change,
or any development involving a prospective change, in the condition, financial
or otherwise, or in the earnings, business or operations of the Issuer, the
Seller, VW Credit or VWA, and their respective subsidiaries, taken as a whole,
that, in your judgment, is material and adverse and that makes it impracticable
to market the Notes on the terms and in the manner contemplated in the
Prospectus.
(e) You shall have received an opinion of __________, counsel to the
Seller, 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) Mayer, Brown, ▇▇▇▇ & Maw, special counsel to you, the Seller, VW
Credit and the Issuer, shall have delivered an opinion or opinions satisfactory
in form and substance to you, dated the Closing Date and addressed to you and
the Indenture Trustee.
(g) You shall have received an opinion addressed to you, the Seller and
the Servicer of _________________, counsel to the Indenture Trustee, dated the
Closing Date and satisfactory in form and substance to you and your counsel.
(h) You shall have received an opinion addressed to you, the Seller and
the Servicer of ______________, counsel to the Owner Trustee and special
Delaware counsel to the Seller, 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 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, 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) __________, 200__ there has not occurred any material adverse change, or any
development involving a prospective material adverse change, in or affecting the
condition, financial or
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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
Prospectus.
(j) You shall have received evidence satisfactory to you that, on or
before the Closing Date, UCC-1 financing statements have been or are being filed
in all applicable governmental offices reflecting (A) the transfer of the
interest of VW Credit in the Receivables and the proceeds thereof to the Seller
pursuant to the Purchase Agreement, (B) the transfer of the interest of the
Seller in the Purchase Agreement, the Receivables and the proceeds thereof to
the Issuer pursuant to the Sale and Servicing Agreement, and (C) the grant by
the Issuer to the Indenture Trustee under the Indenture of a security interest
in the interest of the Issuer in the Purchase Agreement, the Sale and Servicing
Agreement, the Receivables and the proceeds thereof.
(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., Fitch Ratings and ▇▇▇▇▇'▇ Investors Service, Inc.
(l) You shall have received, from each of VW Credit and the Seller, a
certificate executed by a secretary or assistant secretary thereof to which
shall be attached certified copies of the: (i) organizational documents, (ii)
applicable resolutions and (iii) designation of incumbency of each such entity.
The Seller will provide or cause to be provided to you conformed copies
of such opinions, certificates, letters and documents as you or your counsel
reasonably request.
SECTION 8. Termination. This Agreement shall be subject to termination
by notice given by you to the Seller if: (a) after the execution and delivery of
this Agreement and prior to the Closing Date: (i) trading generally shall have
been suspended or materially limited on the New York Stock Exchange, (ii)
trading of any securities of Volkswagen AG shall have been suspended on any
exchange or in any over-the-counter market; (iii) any general moratorium on
commercial banking activities in New York shall have been declared by either
Federal or New York State authorities; or (iv) there shall have occurred any
outbreak or escalation of hostilities or any change in financial markets or any
calamity or crisis that, in your judgment, is material and adverse, and (b) in
the case of any of the events specified above, such event singly or together
with any other such event makes it, in your judgment, impracticable to market
the Notes on the terms and in the manner contemplated in the Prospectus.
SECTION 9. Indemnification and Contribution. (a) The Seller and VW
Credit will, jointly and severally, indemnify and hold harmless each Underwriter
and each person, if any, who controls such Underwriter within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange Act, from
and against any losses, claims, damages and liabilities (including, without
limitation, any legal or other expenses incurred by any Underwriter or any such
controlling person in connection with defending or investigating any such action
or claim) to which they or any of them may become subject, under the Securities
Act or otherwise, insofar 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
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supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances in which they were made, not misleading; provided, however, that
neither the Seller nor VW Credit will be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement in, or omission or alleged omission
from, any of such documents in reliance upon and in conformity with written
information furnished to the Seller by any Underwriter through the
Representative specifically for use therein; and provided further, that the
foregoing indemnity agreement with respect to any Preliminary Prospectus shall
not inure to the benefit of any Underwriter from whom the person asserting any
such losses, claims, damages or liabilities purchased any Notes, or any person
controlling such Underwriter, if a copy of the Prospectus (as then amended or
supplemented if the Seller shall have furnished any amendments or supplements
thereto) was not sent or given by or on behalf of such Underwriter to such
person, if required by law so to have been delivered, at or prior to the written
confirmation of the sale of the Notes to such person, and if the Prospectus (as
then so amended or supplemented) would have cured the defect giving rise to such
losses, claims, damages or liabilities.
(b) Each Underwriter, severally and not jointly, agrees to indemnify
and hold harmless the Seller and VW Credit and their respective directors,
officers who signed the Registration Statement, and each person, if any, who
controls such parties within the meaning of either Section 15 of the Securities
Act or Section 20 of the Exchange Act, against any losses, claims, damages or
liabilities (including, without limitation, any legal or other expenses incurred
by any of them in connection with defending or investigating any such action or
claim) to which any of them may become subject, under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the Registration Statement,
any Preliminary Prospectus, the Prospectus or any amendment, exhibit or
supplement thereto, or arise out of or are based upon the omission or the
alleged omission to state therein a material fact required to be stated therein
or necessary in order to make the statements therein, in the light of the
circumstances in which they were made, not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Seller by such Underwriter
through 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
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inappropriate due to actual or potential differing interests between them. It is
understood that the indemnifying party shall not, in respect of the legal
expenses of any indemnified party in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and expenses of
more than one counsel (in addition to any local counsel) for all such
indemnified parties and that all such fees and expenses shall be reimbursed
promptly as they are incurred. Such counsel shall be designated in writing by
the Seller, in the case of parties indemnified pursuant to subsection (a), and
by the Representative, in the case of parties indemnified pursuant to subsection
(b). The indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the indemnifying
party agrees to indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
(d) If the indemnification provided for in this Section is unavailable
or insufficient to hold harmless an indemnified party under subsection (a) or
(b), then each indemnifying party, in lieu of indemnifying such indemnified
party thereunder, shall contribute to the amount paid or payable by such
indemnifying party as a result of the losses, claims, damages or liabilities
referred to in subsection (a) or (b): (i) in such proportion as is appropriate
to reflect the relative benefits received by the Seller, VW Credit, the Issuer
and their affiliates on the one hand and the Underwriters on the other from the
offering of the Notes, or (ii) if the allocation provided by clause (i) is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) but also the relative fault
of the Seller, VW Credit, the Issuer and their affiliates on the one hand and
the Underwriters on the other in connection with the statements or omissions
that resulted in such losses, claims, damages or liabilities, as well as any
other relevant equitable considerations. The relative benefits received by the
Seller, VW Credit, the Issuer and their affiliates on the one hand and the
Underwriters on the other in connection with the offering of the Notes shall be
deemed to be in the same proportion as the total net proceeds from the offering
(before deducting expenses other than underwriting discounts and commissions
received by the Underwriters) received by the Seller, VW Credit, the Issuer and
their affiliates bear to the total underwriting discounts and commissions
received by the Underwriters. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Seller, VW Credit, the Issuer or their
affiliates or by any Underwriter, and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such untrue
statement or 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
10
or payable by an indemnified party as a result of the losses, claims, damages
and liabilities referred to in the preceding paragraph shall be deemed to
include, subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the other provisions of
this Section, no Underwriter (except as may be provided in the agreement among
Underwriters relating to the offering of the Notes) shall be required to
contribute any amount in excess of the amount by which the total underwriting
discounts and commissions received by such Underwriter exceed the amount of any
damages that such Underwriter otherwise has been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution or indemnity from
any person who was not guilty of such fraudulent misrepresentation. The remedies
provided for in this Section are not exclusive and shall not limit any rights or
remedies that otherwise may be available to any indemnified party at law or in
equity.
SECTION 10. Defaults by an Underwriter. If any one or more
Underwriter(s) fail(s) to purchase and pay for any of the Notes agreed to be
purchased by such Underwriter(s) hereunder, and such failure constitutes a
default in the performance of its or their obligations under this Agreement, the
remaining Underwriter(s) shall be obligated severally to take up and pay for (in
the respective proportions that the amount of Notes set forth opposite their
names in Schedule I bears to the aggregate amount of Notes set forth opposite
the names of all the remaining Underwriter(s)) the Notes that the defaulting
Underwriter(s) agreed but failed to purchase; provided, however, that if the
aggregate amount of Notes that the defaulting Underwriter(s) agreed but failed
to purchase exceeds 10% of the aggregate principal amount of Notes, the
remaining Underwriter(s) shall have the right to purchase all, but shall not be
under any obligation to purchase any, of the Notes, and if such nondefaulting
Underwriter(s) do not purchase all the Notes, this Agreement will terminate
without liability to any nondefaulting Underwriter. In the event of a default by
any Underwriter as set forth in this paragraph, the Closing Date shall be
postponed for such period, not exceeding seven days, as the remaining
Underwriter(s) shall determine in order that the required changes in the
Registration Statement and the Prospectus or in any other documents or
arrangements may be effected. Nothing contained in this Agreement shall relieve
any defaulting Underwriter(s) of any liability to the Seller, VW Credit, their
affiliates 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 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 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
11
thereof, and will survive delivery of and payment for the Notes. If for any
reason the purchase of the Notes by the Underwriters is not consummated, the
Seller shall remain responsible for the expenses to be paid or reimbursed
pursuant to Section 6 and the obligations pursuant to Section 9 shall remain in
effect. If for any reason the purchase of the Notes by the Underwriters is not
consummated, other than termination of this Agreement pursuant to Section 10,
the Seller will reimburse the Underwriters severally, upon demand, for all
out-of-pocket expenses (including fees and disbursements of counsel) incurred by
any Underwriter in connection with the offering of the Notes.
SECTION 13. Notices. All communications hereunder will be in writing
and, if sent to the Underwriters, will be mailed, delivered or telegraphed and
confirmed to: (a) the Representative at ________________, _____________,
_______________, Attention: __________; (b) to the Seller at Volkswagen Public
Auto Loan Securitization, 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.
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.
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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 ▇▇▇ 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 PUBLIC AUTO LOAN SECURITIZATION, LLC
By:
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Name:
------------------------------------------------
Title:
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By:
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Name:
------------------------------------------------
Title:
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VW CREDIT, INC.
By:
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Name:
------------------------------------------------
Title:
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By:
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Name:
------------------------------------------------
Title:
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S-1
The foregoing Underwriting
Agreement is hereby confirmed
and accepted as of the date
first written above.
-----------------------------,
on behalf of itself and as Representative
of the several Underwriters
By:__________________________________________________
Name:__________________________________________
Title:_________________________________________
S-2
SCHEDULE I
to Underwriting Agreement
UNDERWRITER CLASS A-1 CLASS A-2 TOTAL
NOTES NOTES
$ --------- $--------- $---------
$ --------- $--------- $---------
$ --------- $--------- $---------
$ ========= $--------- $---------
TOTAL $ --------- $--------- $---------
I-1