Exhibit 1.1
EXECUTION COPY
$718,125,000
FIFTH THIRD AUTO TRUST 2004-A
1.3975% ASSET BACKED NOTES, CLASS A-1
2.42% ASSET BACKED NOTES, CLASS A-2
3.19% ASSET BACKED NOTES, CLASS A-3
3.70% ASSET BACKED NOTES, CLASS A-4
CITIGROUP VEHICLE SECURITIES INC.
FIFTH THIRD BANK, AN OHIO BANKING CORPORATION
UNDERWRITING AGREEMENT
June 9, 2004
Citigroup Global Markets Inc.,
as representative of the several Underwriters
listed on Schedule I hereto
c/o Citigroup Global Markets Inc.
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
1. Introduction. Citigroup Vehicle Securities Inc., a Delaware
corporation (the "Depositor") and a wholly owned subsidiary of Citigroup
Financial Products Inc., a Delaware corporation, proposes to cause Fifth Third
Auto Trust 2004-A (the "Trust") to issue $141,000,000 principal amount of its
1.3975% Asset Backed Notes, Class A-1 (the "Class A-1 Notes"), $296,000,000
principal amount of its 2.42% Asset Backed Notes, Class A-2 (the "Class A-2
Notes"), $140,000,000 principal amount of its 3.19% Asset Backed Notes, Class
A-3 (the "Class A-3 Notes") and $141,125,000 principal amount of its 3.70%
Asset Backed Notes, Class A-4 (the "Class A-4 Notes" and together with the
Class A-1 Notes, Class A-2 Notes and Class A-3 Notes, the "Offered Notes") to
Citigroup Global Markets Inc. and the other several underwriters listed on
Schedule I hereto (collectively, the "Underwriters"). Simultaneously with the
issuance and sale of the Offered Notes as contemplated in this Agreement, the
Trust will issue $20,625,000 principal amount of its 3.60% Asset Backed Notes,
Class B (the "Class B Notes" and, together with the Offered Notes, the
"Notes"). The Trust will also issue trust certificates (the "Certificates")
representing fractional undivided equity interests in the Trust. Initially,
the Class B Notes and the Certificates will be held by Fifth Third Auto
Funding LLC (the "Seller").
The Trust Property will include, among other things, a pool of motor
vehicle retail installment sale contracts and retail installment loans secured
by new and used automobiles and
light-duty trucks, to be transferred by the Depositor to the Trust on the
Closing Date (the "Receivables"), the related security interests in the motor
vehicles financed thereby (the "Financed Vehicles"), certain monies received
thereon after May 31, 2004 (the "Cutoff Date"), insurance proceeds and
liquidation proceeds with respect thereto, the related Receivables Files,
amounts on deposit from time to time in the Trust Accounts and the proceeds of
the foregoing. The Receivables have been originated or purchased by Fifth
Third Bank, a Michigan banking corporation ("Fifth Third (Michigan)") and will
initially be sold to the Seller pursuant to the Transfer and Sale Agreement
dated as of June 1, 2004 (the "Transfer and Sale Agreement") between Fifth
Third (Michigan) and the Seller. The Seller will then convey the Receivables
to the Depositor pursuant to the Receivables Purchase Agreement dated as of
June 1, 2004 (the "Receivables Purchase Agreement") between the Seller and the
Depositor. The Receivables will be serviced for the Trust by Fifth Third Bank,
an Ohio banking corporation ("Fifth Third (Ohio)" and in such capacity, the
"Servicer") who will also act as custodian in respect of the Receivables Files
(in such capacity, the "Custodian") and as administrator with respect to the
Trust (in such capacity, the "Administrator"). The Notes will be issued
pursuant to an Indenture to be dated as of June 1, 2004 (the "Indenture"),
between the Trust and The Bank of New York, as indenture trustee (the
"Indenture Trustee"). The Certificates will be issued pursuant to an Amended
and Restated Trust Agreement to be dated as of June 1, 2004 (as amended and
supplemented from time to time, the "Trust Agreement"), between Citigroup
Vehicle Securities Inc., as Depositor, and Wilmington Trust Company, as owner
trustee (the "Owner Trustee").
Capitalized terms used and not otherwise defined herein shall have the
meanings assigned thereto in the Sale and Servicing Agreement to be dated as
of June 1, 2004 (the "Sale and Servicing Agreement"), among the Trust, the
Seller, Fifth Third (Ohio), the Depositor and the Indenture Trustee, or, if
not defined therein, in the Indenture or, if not defined therein, in the Trust
Agreement.
2. Representations and Warranties of the Depositor. The Depositor
represents and warrants to, and agrees with, each Underwriter that:
(a) The Depositor meets the requirements for use of Form S-3 under the
Securities Act of 1933, as amended (the "Act"), and has filed with the
Securities and Exchange Commission (the "Commission") a registration statement
(Registration No. 333-105855) on such Form, including a related preliminary
base prospectus and a preliminary prospectus supplement, for the registration
under the Act of the offering and sale of the Offered Notes. The Depositor may
have filed one or more amendments thereto, each of which amendments has
previously been furnished to you. The Depositor will next file with the
Commission (i) prior to the effectiveness of such registration statement, an
amendment thereto (including the form of final base prospectus and the form of
final prospectus supplement relating to the Offered Notes) or (ii) after the
effectiveness of such registration statement, either (A) a final base
prospectus relating to the Notes in accordance with Rules 430A and 424(b)(1)
or (4) under the Act or (B) a final base prospectus and a final prospectus
supplement relating to the Offered Notes in accordance with Rules 415 and
424(b)(2) or (5).
In the case of clauses (ii) (A) and (B) above, the Depositor has included
in such registration statement, as amended at the Effective Date (as defined
herein), all information (other than Rule 430A Information) required by the
Act and the rules thereunder to be included
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in the Prospectus with respect to the Offered Notes and the offering thereof.
As filed, such amendment and form of final prospectus supplement, or such
final prospectus supplement, shall include all Rule 430A Information, together
with all other required information, with respect to the Offered Notes and the
offering thereof and, except to the extent that the Underwriters shall agree
in writing to a modification, shall be in all substantive respects in the form
furnished to you prior to 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 base
prospectus and preliminary prospectus supplement, if any, that have previously
been furnished to you) as the Depositor has advised you, prior to the
Execution Time, will be included or made therein. If the Registration
Statement contains the undertaking specified by Regulation S-K Item 512(a),
the Registration Statement, at the Execution Time, meets the requirements set
forth in Rule 415(a)(1)(x).
For purposes of this Agreement, "Effective Time" means the date and time
as of which such 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. "Execution Time" shall
mean the date and time that this Agreement is executed and delivered by the
parties hereto. Such registration statement, as amended at the Effective Time,
including all information deemed to be a part of such registration statement
as of the Effective Time pursuant to Rule 430A(b) under the Act, and including
the exhibits thereto and any material incorporated by reference therein, is
hereinafter referred to as the "Registration Statement." "Base Prospectus"
shall mean any prospectus referred to above contained in the Registration
Statement at the Effective Date, including any Preliminary Prospectus
Supplement. "Preliminary Prospectus Supplement" shall mean the preliminary
prospectus supplement, if any, to the Base Prospectus which describes the
Offered Notes and the offering thereof and is used prior to the filing of the
Prospectus. "Prospectus" shall mean the prospectus supplement relating to the
Offered Notes that, together with the Base Prospectus, as amended at the time
of such filing, is first filed pursuant to Rule 424(b) after the Execution
Time or, if no filing pursuant to Rule 424(b) is required, shall mean the
prospectus supplement relating to the Offered Notes, including the Base
Prospectus, included in the Registration Statement at the Effective Date.
"Rule 430A Information" means information with respect to the Offered Notes
and the offering of the Offered Notes permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A. "Rule
415", "Rule 424", "Rule 430A" and "Regulation S-K" refer to such rules or
regulations under the Act. Any reference herein to the Registration Statement,
the Base Prospectus, a Preliminary Prospectus Supplement 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 which were filed under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), on or before
the Effective Date of the Registration Statement or the issue date of the Base
Prospectus, such Preliminary Prospectus Supplement 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, the Base Prospectus,
any Preliminary Prospectus Supplement or the Prospectus shall be deemed to
refer to and include the filing of any document under the Exchange Act after
the Effective Date of the Registration Statement or the issue date of the Base
Prospectus, any Preliminary Prospectus Supplement or the Prospectus, as the
case may be, deemed to be incorporated therein by reference.
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(b) On the Effective Date and on the date of this Agreement, the
Registration Statement did or will, and, when the Prospectus is first filed
(if required) in accordance with Rule 424(b) and on the Closing Date, the
Prospectus (and any supplements thereto) will, comply in all material respects
with the applicable requirements of the Act, the Exchange Act and the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"), and the
respective rules and regulations of the Commission thereunder (the "Rules and
Regulations"); on the Effective Date, the Registration Statement did not or
will not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make the
statements therein not misleading; and, on the Effective Date, the Prospectus,
if not filed pursuant to Rule 424(b), did not or will not, and on the date of
any filing pursuant to Rule 424(b) and on the Closing Date, the Prospectus
(together with any supplement 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 Depositor 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
Depositor by or on behalf of the Underwriters through Citigroup Global Markets
Inc. specifically for use in connection with the preparation of the
Registration Statement or the Prospectus or any supplement thereto.
(c) This Agreement has been duly authorized, executed and delivered by
the Depositor.
(d) None of the Depositor, any of its Affiliates or anyone acting on
behalf of the Depositor or any of its Affiliates has taken any action that
would require qualification of the Trust Agreement under the Trust Indenture
Act or registration of the Depositor or the Trust under the Investment Company
Act, nor will the Depositor or any of its Affiliates act, nor have they
authorized or will they authorize any person to act, in such manner.
3. Representations and Warranties of Fifth Third (Ohio). Fifth Third
(Ohio) represents and warrants to the each Underwriter that:
(a) The representations and warranties of Fifth Third (Ohio) in the Basic
Documents to which Fifth Third (Ohio) is a party will be true and correct and
Fifth Third (Ohio) will have complied with all agreements and satisfied all
conditions on its part to be performed or satisfied under such agreements at
or prior to the Closing Date.
(b) On the date of any filing pursuant to Rule 424(b) and on the Closing
Date, the Prospectus (together with any supplement 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 Fifth Third (Ohio) makes no representations or warranties as to the
information contained in or omitted from the Prospectus or any supplement
thereto in reliance upon and in conformity with information furnished in
writing to the Depositor by or on behalf of the Underwriters through Citigroup
Global Markets Inc. specifically for use in connection with the preparation of
the Prospectus or any supplement thereto.
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(c) Since the respective dates as of which information is included in the
Prospectus, there has not been any material adverse change in the business,
results of operations, condition (financial or otherwise), prospects or
material properties or assets of Fifth Third (Ohio) or any of its affiliates.
(d) This Agreement has been duly authorized, executed and delivered by
Fifth Third (Ohio).
4. Representations and Warranties of the Underwriters. Each Underwriter
represents and warrants to, and agrees with, the Depositor that:
(a) In relation to the Offered Notes which have a maturity of one year or
more, it has not offered or sold and, prior to the expiry of the period of six
months from the issue date of such Offered Notes, will not offer or sell any
such Offered Notes to persons in the United Kingdom except to persons whose
ordinary activities involve them in acquiring, holding, managing or disposing
of investments (as principal or agent) for the purposes of their businesses or
otherwise in circumstances which have not resulted and will not result in an
offer to the public in the United Kingdom within the meaning of the Public
Offers of Securities Regulations 1995, as amended.
(b) In relation to any Offered Notes which must be redeemed before the
first anniversary of the date of their issue, (i) it is a person whose
ordinary activities involve it in acquiring, holding, managing or disposing of
investments (as principal or agent) for the purposes of its business and (ii)
it has not offered or sold and will not offer or sell any Offered Notes other
than to persons whose ordinary activities involve them in acquiring, holding,
managing or disposing of investments (as principal or agent) for the purposes
of their businesses or who it is reasonable to expect will acquire, hold,
manage or dispose of investments (as principal or agent) for the purposes of
their businesses where the issue of the Offered Notes would otherwise
constitute a contravention of section 19 of the Financial Services and Markets
Act 2000 of the United Kingdom (the "FSMA") by the Trust.
(c) It has only communicated or caused to be communicated and will only
communicate or cause to be communicated any invitation or inducement to engage
in investment activity (within the meaning of section 21 of the FSMA) received
by it in connection with the issue or sale of any Offered Notes in
circumstances in which section 21(1) of the FSMA does not apply to the trust.
(c) It has complied and will comply with all applicable provisions of the
FSMA and any applicable secondary legislation made under the FSMA with respect
to anything done by it in relation to the Offered Notes in, from or otherwise
involving the United Kingdom (including section 19 (Carrying on a Regulated
Activity) and section 21 (Financial Promotion) of the FSMA).
5. Purchase, Sale, and Delivery of the Offered Notes. On the basis of the
representations, warranties and agreements herein contained, but subject to
the terms and conditions herein set forth, the Depositor agrees to cause the
Trust to issue, and agrees to sell, to each Underwriter, and each Underwriter
agrees, severally and not jointly, to purchase, Offered
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Notes in the principal amounts and at the purchase prices set forth opposite
its name in Schedule II hereto. Delivery of and payment for the Offered Notes
shall be made at the office of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, on June 18, 2004 (the "Closing Date").
Delivery of the Offered Notes shall be made against payment of the purchase
price in immediately available funds drawn to the order of the Depositor. The
Offered Notes to be so delivered will be initially represented by one or more
Notes registered in the name of Cede & Co., the nominee of The Depository
Trust Company ("DTC"). The interests of beneficial owners of the Offered Notes
will be represented by book entries on the records of DTC and participating
members thereof. The Offered Notes will be available in definitive form only
under limited circumstances.
6. Offering by the Underwriters. It is understood that the several
Underwriters propose to offer the Offered Notes for sale to the public (which
may include selected dealers), as set forth in the Prospectus.
7. Covenants of the Depositor. The Depositor covenants and agrees with
each Underwriter that:
(a) The Depositor will use its best efforts to cause the Registration
Statement, and any amendment thereto, if not effective at the Execution Time,
to become effective. Prior to the termination of the offering of the Offered
Notes, the Depositor will not file any amendment of the Registration Statement
or supplement to the Prospectus unless the Depositor has furnished you a copy
for your review prior to filing and will not file any such proposed amendment
or supplement to which you reasonably object. Subject to the foregoing
sentence, 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 Depositor will file the Prospectus, properly completed, and
any supplement thereto, with the Commission pursuant to and in accordance with
the applicable paragraph of Rule 424(b) within the time period prescribed and
will provide evidence satisfactory to you of such timely filing.
(b) The Depositor will advise you promptly of any proposal to amend or
supplement the Registration Statement, as filed, or the related Prospectus and
will not effect such amendment or supplement without your consent, which
consent will not unreasonably be delayed or withheld; the Depositor will also
advise you promptly of any request by the Commission for any amendment of or
supplement to the Registration Statement or the Prospectus or for any
additional information; and the Depositor will also advise you promptly of the
effectiveness of the Registration Statement (unless the Registration Statement
has become effective prior to Execution Time) and any amendment thereto, when
the Prospectus, and any supplement thereto, shall have been filed with the
Commission pursuant to Rule 424(b) and of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration Statement or
the institution or threat of any proceeding for that purpose, and the
Depositor 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, at any time within 90 days of the date hereof when a prospectus
relating to the Offered Notes is required to be delivered under the Act, 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
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fact necessary 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 within 90 days of the date hereof to amend the
Registration Statement or supplement the Prospectus to comply with the Act or
the Exchange Act or the respective rules thereunder, the Depositor promptly
will notify you and will prepare and file, or cause to be prepared and filed,
with the Commission, subject to the second sentence of paragraph (a) of this
Section 7, 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 right of any Underwriter hereunder.
(d) The Depositor will furnish to the Underwriters copies of the
Registration Statement, each related preliminary prospectus (including the
Preliminary Prospectus Supplement, if any), the Prospectus and all amendments
and supplements to such documents, in each case as soon as available and in
such quantities as the Underwriters request.
(e) The Depositor will arrange for the qualification of the Offered Notes
for sale under the laws of such jurisdictions in the United States as you may
reasonably designate and will continue such qualifications in effect so long
as required for the distribution.
(f) The Depositor will cooperate with the Underwriters and use its best
efforts to permit the Offered Notes to be eligible for clearance and
settlement through DTC.
8. Covenants of Fifth Third (Ohio).
(a) If, at any time when a prospectus relating to the Offered Notes is
required to be delivered under the Act, any event occurs with respect to Fifth
Third (Michigan), Fifth Third (Ohio) or the Seller 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 to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, Fifth Third (Ohio) will notify the Depositor and will
provide sufficient information to enable the Depositor to prepare and file, or
cause to be prepared and filed, with the Commission an amendment or supplement
that will correct such statement or omission.
(b) For a period from the date of this Agreement until the retirement of
the Offered Notes, or until such time as the Underwriters shall cease to
maintain a secondary market in the Offered Notes, whichever occurs first,
Fifth Third (Ohio) agrees to deliver to you the monthly servicing report, the
annual statements of compliance and the annual independent certified public
accountants' reports furnished to the Indenture Trustee or the Owner Trustee
pursuant to the Sale and Servicing Agreement, as soon as such statements and
reports are furnished to the Indenture Trustee or the Owner Trustee by Fifth
Third (Ohio).
(c) For a period of one year from the date hereof, Fifth Third (Ohio)
will furnish to you (i) as soon as practicable after the end of the fiscal
year all documents required to be distributed to holders of Offered Notes or
filed with the Commission pursuant to the Exchange Act or any order of the
Commission thereunder and (ii) from time to time, any other information
concerning Fifth Third (Ohio), filed with any government or regulatory
authority that is otherwise publicly available, as you may reasonably request.
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(d) Fifth Third (Ohio) will cooperate with the Depositor and the
Underwriters and use its best efforts to permit the Offered Notes to be
eligible for clearance and settlement through DTC.
(e) Fifth Third (Ohio) will cooperate with the Depositor in obtaining the
ratings on the Offered Notes that are required pursuant to Section 10(v).
9. Payment of Expenses.
(a) As between the Depositor and the Underwriters, the Depositor agrees
to pay or cause to be paid all expenses incident to the performance of its
obligations under this Agreement, including (i) the printing and filing of the
Registration Statement as originally filed and of each amendment thereto, (ii)
the preparation of this Agreement, (iii) the preparation, issuance and
delivery of the Offered Notes to the Underwriters, (iv) the qualification of
the Offered Notes under securities laws in accordance with the provisions of
Section 7(e), including filing fees and the fees and disbursements of counsel
for you in connection therewith and in connection with the preparation of any
blue sky or legal investment survey, (v) the printing and delivery to the
Underwriters of copies of the Registration Statement as originally filed and
of each amendment thereto, (vi) the printing and delivery to the Underwriters
of copies of any blue sky or legal investment survey prepared in connection
with the Offered Notes, and (vii) the fees and expenses of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
& ▇▇▇▇ LLP incurred as a result of providing the opinions required by Sections
10(i), 10(j), 10(k) and 10(l) hereof.
(b) As between Fifth Third (Ohio) and the Underwriters, Fifth Third
(Ohio) agrees to pay or cause to be paid all expenses incident to the
performance of the obligations of Fifth Third (Ohio) and its affiliates under
this Agreement and the Basic Documents including (i) the fees and expense of
counsel and accountants for Fifth Third (Ohio) and its affiliates, (ii) any
fees charged by rating agencies for the rating of the Offered Notes, and (iii)
any fees or expenses of the Depositor that Fifth Third (Ohio) or its
affiliates have agreed to pay or reimburse.
10. Conditions to the Obligations of the Underwriters. The obligations of
the Underwriters to purchase and pay for the Offered Notes will be subject to
the accuracy of the representations and warranties on the part of the
Depositor and Fifth Third (Ohio) herein, to the accuracy of the statements of
officers of the Depositor and Fifth Third (Ohio) made pursuant to the
provisions hereof, to the performance by the Depositor and Fifth Third (Ohio)
of their respective obligations hereunder and under the Basic Documents and to
the following additional conditions precedent:
(a) If the Registration Statement has not become effective prior to the
Execution Time, unless the Underwriters agree 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 occurs at or prior to 3:00 P.M. New York City
time on such date or (ii) 12:00 noon New York City time on the business day
following the day on which the public offering price was determined, if such
determination occurs after 3:00 P.M. New York City time on such date.
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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(a) and 2(b) hereof, and prior to 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 Depositor or you, shall be contemplated by the Commission
or by any authority administering any state securities or blue sky law.
(c) Subsequent to the execution and delivery of this Agreement or, if
earlier, the dates as of which information is given in the Registration
Statement (exclusive of any amendment thereto) and the Prospectus (exclusive
of any supplement thereto), there shall not have occurred (i) any change, or
any development involving a prospective change, in or affecting particularly
the business or properties of Fifth Third (Ohio) or its affiliates, the Trust
or the Depositor which, in the judgment of the Underwriters, materially
impairs the investment quality of the Offered Notes or makes it impractical or
inadvisable to market the Offered Notes; (ii) any suspension or limitation of
trading in securities generally on the New York Stock Exchange or any setting
of minimum prices for trading on such exchange; (iii) any suspension of
trading of any securities of Fifth Third (Ohio), the Depositor or any of their
affiliates on any exchange or in the over-the-counter market; (iv) any banking
moratorium declared by federal or New York authorities; (v) any outbreak or
escalation of major hostilities in which the United States is involved, any
declaration of war by Congress or any other substantial national or
international calamity or emergency or any material change in the financial
markets if, in the judgment of the Underwriters, the effect of any such
outbreak, escalation, declaration, calamity, emergency or change makes it
impractical or inadvisable to proceed with completion of the sale of and
payment for the Offered Notes; or (vi) a material disruption in securities
settlement or clearance services in the United States.
(d) You shall have received the opinion of internal counsel to Fifth
Third (Michigan), dated the Closing Date satisfactory in form and scope to the
Depositor and the Underwriters.
(e) You shall have received the opinion of internal counsel to Fifth
Third (Ohio), dated the Closing Date satisfactory in form and scope to the
Depositor and the Underwriters.
(f) You shall have received the opinion or opinions of ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
& Maw LLP, counsel for Fifth Third (Michigan), Fifth Third (Ohio) and the
Seller, dated the Closing Date and satisfactory in form and scope to the
Depositor and the Underwriters.
(g) You shall have received the opinion of ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ & Maw LLP,
counsel for Fifth Third (Ohio), Fifth Third (Michigan) and the Seller, dated
the Closing Date and satisfactory in form and scope to the Depositor and the
Underwriters regarding the conveyance of certain of the Receivables by Fifth
Third (Ohio) to Fifth Third (Michigan) and the conveyance of all of the
Receivables by Fifth Third (Michigan) to the Seller and the rights of the
Seller and its assignees in the event of the insolvency of Fifth Third
(Michigan) or Fifth Third (Ohio).
(h) You shall have received the opinion of ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ & Maw LLP,
counsel for Fifth Third (Michigan), Fifth Third (Ohio) and the Seller, dated
the Closing Date and satisfactory in form and scope to the Depositor and the
Underwriters regarding the security
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interests created under the Transfer and Sale Agreement, the Receivables
Purchase Agreement, the Sale and Servicing Agreement and the Indenture and
certain related perfection matters.
(i) You shall have received the opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇
LLP, counsel for the Depositor, dated the Closing Date and satisfactory in
form and scope to you.
(j) You shall have received the opinion or opinions of ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ & ▇▇▇▇ LLP, in its capacity as counsel for the Underwriters, dated the
Closing Date, with respect to the issuance and sale of the Offered Notes, the
Prospectus (as amended or supplemented at the Closing Date) and other related
matters as the Underwriters may reasonably require.
(k) You shall have received the opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇
LLP, counsel for the Depositor, dated the Closing Date and satisfactory in
form and substance to the Underwriters regarding the true sale of the
Depositor's right, title and interest in the Receivables to the Trust.
(l) You shall have received the opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇
LLP, as special federal tax counsel to the Trust, dated the Closing Date to
the effect that the statements in the final Prospectus Supplement under the
headings "Summary of Terms of the Securities--Tax Status", "Summary of Terms
of the Securities--ERISA Considerations" and under "Material Federal Income
Tax Consequences" and in the final Base Prospectus under the headings
"Summary--Tax Status", "Summary--ERISA Considerations", "Material Federal
Income Tax Consequences" and "ERISA Considerations" (to the extent that such
sections (other than such "ERISA Considerations" sections) relate to federal
income tax consequences), to the extent that they constitute statements of
matters of law or legal conclusions with respect thereto, have been reviewed
by such counsel and accurately describe the material federal income tax
consequences to holders of the Offered Notes.
(m) You shall have received the opinion of ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇,
P.L.L., as Ohio state tax counsel to the Trust, dated the Closing Date and
satisfactory in form and scope satisfactory to you, to the effect that the
statements in the final Prospectus Supplement under the heading "Certain State
Tax Consequences" and in the Base Prospectus under the heading "Certain State
Tax Consequences", in each case to the extent relating to Ohio tax
consequences, accurately describe the Ohio tax consequences to holders of the
Offered Notes.
(n) You shall have received the opinion of ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ & Maw LLP,
counsel for Fifth Third (Michigan), dated the Closing Date and satisfactory in
form and scope satisfactory to you, with respect to matters concerning
security interests in Financed Vehicles under the laws of the State of
Illinois and the State of Michigan.
(o) You shall have received the opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for
Fifth Third (Michigan), dated the Closing Date and satisfactory in form and
scope satisfactory to you, with respect to matters concerning security
interests in Financed Vehicles under the laws of the State of Indiana.
(p) You shall have received the opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ ▇▇▇,
counsel to the Indenture Trustee, addressed to you and the Depositor of dated
the Closing Date and satisfactory in form and scope to the Depositor and the
Underwriters.
10
(q) You shall have received the opinion or opinions of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ &
▇▇▇▇▇▇, counsel to the Owner Trustee and special Delaware counsel to the
Trust, dated the Closing Date and satisfactory in form and scope to the
Depositor and the Underwriters.
(r) The Underwriters shall have received such opinions, addressed to the
Underwriters and dated the Closing Date, as are delivered to the Rating
Agencies.
(s) The Underwriters shall have received a certificate dated the Closing
Date of any of the Chairman of the Board, the President, the Executive Vice
President, any Vice President, the Treasurer, any Assistant Treasurer, the
principal financial officer or the principal accounting officer of the
Depositor in which such officer shall state that, to the best of his or her
knowledge:
(i) the representations of the Depositor contained in this Agreement
are true and correct; the Depositor has complied with all agreements
and satisfied all conditions on its part to be performed or
satisfied under this Agreement at or prior to the Closing Date;
(ii) since the respective dates as of which information is included
in the Prospectus, no material adverse change, or any development
involving a prospective material adverse change, in or affecting
particularly the business or properties of the Depositor or the
Trust has occurred; and
(iii) 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.
(t) The Underwriters shall have received a certificate dated the Closing
Date of any of the Chairman of the Board, the President, the Executive Vice
President, any Vice President, the Treasurer, any Assistant Treasurer, the
principal financial officer or the principal accounting officer of Fifth Third
(Ohio) in which such officer shall state that, to the best of his or her
knowledge:
(i) The representations of Fifth Third (Ohio) contained in this
Agreement and the Basic Documents are true and correct; Fifth Third
(Ohio) has complied with all agreements and satisfied all conditions
on its part to be performed or satisfied under such agreements at or
prior to the Closing Date; and
(ii) since the respective dates as of which information is included
in the Prospectus, no material adverse change, or any development
involving a prospective material adverse change, in or affecting
particularly the business or properties of Fifth Third (Ohio) or its
affiliates has occurred.
(u) The Underwriters shall have received evidence satisfactory to them
that, on or before the Closing Date, UCC financing statements have been or are
being filed in the office of (i) the Secretary of State of Michigan reflecting
the sale of the Receivables and the other Trust Property by Fifth Third
(Michigan) to the Seller and (ii) the State of Delaware reflecting (A) the
sale of the Receivables and the other Trust Property by the Seller to the
Depositor, (B) the sale of the Receivables and the other Trust Property by the
Depositor to the Trust and (C) the pledge of
11
the Receivables and the other Trust Property by the Trust to the Indenture
Trustee for the benefit of the Noteholders.
(v) The Class A-1 Notes shall have been rated "Prime-1" by ▇▇▇▇▇'▇
Investors Services, Inc. ("Moody's") and "A-1+" by Standard and Poor's Ratings
Services, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. ("S&P"), the Class
A-2, Class A-3, and Class A-4 Notes shall have been rated "AAA" by S&P and
"Aaa" by Moody's, respectively. Neither S&P nor Moody's shall have given any
notice of any intended or potential reduction in or withdrawal of any of the
above-referenced ratings or of a possible change in any such rating that does
not indicate the direction of the possible change.
(w) At the Execution Time and at the Closing Date, Deloitte & Touche LLP
shall have furnished to the Underwriters letters, dated respectively as of the
Execution Time and as of the Closing Date, substantially in the forms of the
drafts to which the Underwriters have previously agreed and otherwise in form
and substance satisfactory to the Underwriters.
(x) Subsequent to the Execution Time, there shall not have been any
reduction or withdrawal by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the Securities
Act) of the current rating of any securities issued or originated by the
Depositor, Fifth Third (Michigan), Fifth Third (Ohio) or any of their
respective affiliates or any notice given of any intended or potential
reduction in or withdrawal of any such rating or of a possible change in any
such rating that does not indicate the direction of the possible change.
(y) Prior to the Closing Date, the Depositor, Fifth Third (Michigan) and
Fifth Third (Ohio) shall have furnished to the Underwriters such further
information, certificates and documents as the Underwriters may reasonably
request.
If any of the conditions specified in this Section 10 have not been
fulfilled in all material respects when and as provided in this Agreement, or
if any of the opinions and certificates mentioned above or elsewhere in this
Agreement are not reasonably satisfactory in all material respects in form and
scope to the Underwriters, this Agreement and all obligations of the
Underwriters hereunder may be canceled at, or at any time prior to, the
Closing Date by the Underwriters. Notice of such cancellation shall be given
to the Depositor in writing or by telephone or telegraph confirmed in writing.
11. Indemnification and Contribution.
(a) The Depositor agrees to indemnify and hold harmless each Underwriter,
the directors, officers, employees and agents of each Underwriter and each
person who controls any Underwriter within the meaning of either the
Securities Act or the Exchange Act against any and all losses, claims, damages
or liabilities, joint or several, to which they or any of them may become
subject under the Securities Act, the Exchange Act or other federal or state
statutory law or regulation, at common law 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 a
material fact contained in the Registration Statement, the preliminary Base
Prospectus, the Preliminary Prospectus Supplement, the Base Prospectus or the
Prospectus or
12
any amendment 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 to make the statements therein, in the light of
the circumstances under which they were made, not misleading, and agree to
reimburse each such indemnified party, as incurred, for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided,
however, that the Depositor will not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based upon
any such 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 Depositor by or on behalf
of the Underwriters through Citigroup Global Markets Inc. specifically for
inclusion therein. This indemnity agreement will be in addition to any
liability that the Depositor may otherwise have.
(b) Fifth Third (Ohio) agrees to indemnify and hold harmless each
Underwriter, the Depositor, the respective directors, officers, employees and
agents of each Underwriter and the Depositor and each person who controls any
Underwriter or the Depositor within the meaning of either the Securities Act
or the Exchange Act and each person who signed the Registration Statement
against any and all losses, claims, damages or liabilities, joint or several,
to which they or any of them may become subject under the Securities Act, the
Exchange Act or other federal or state statutory law or regulation, at common
law 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 a material fact contained in the
preliminary Base Prospectus, the Preliminary Prospectus Supplement, the Base
Prospectus or the Prospectus or any amendment or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and agree to
reimburse each such indemnified party, as incurred, for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided,
however, that Fifth Third (Ohio) will not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is
based upon any such untrue statement or alleged untrue statement in, or
omission or alleged omission from, any of such documents, (i) with respect to
the Depositor Information specified in paragraph (d) below or (ii) in reliance
upon and in conformity with written information furnished to the Depositor by
or on behalf of the Underwriters through Citigroup Global Markets Inc.
specifically for inclusion therein. This indemnity agreement will be in
addition to any liability that Fifth Third (Ohio) may otherwise have.
(c) Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Depositor, its directors, its officers, each person who
controls the Depositor within the meaning of either the Securities Act or the
Exchange Act, Fifth Third (Ohio), its directors, its officers and each person
who controls Fifth Third (Ohio) within the meaning of either the Securities
Act or the Exchange Act, to the same extent as the foregoing indemnities from
the Depositor and Fifth Third (Ohio), respectively, to the Underwriters, but
only with reference to written information relating to the Underwriters
furnished to the Depositor by the Underwriters through Citigroup Global
Markets Inc. specifically for inclusion in the Registration Statement, the
preliminary Base Prospectus, the Preliminary Prospectus Supplement, the Base
Prospectus or the Prospectus or any amendment or supplement thereto. This
indemnity agreement will be in
13
addition to any liability that the Underwriters may otherwise have. The
Depositor and Fifth Third (Ohio) each acknowledge that the statements set
forth in the last paragraph of the cover page and under the heading
"Underwriting" in the Prospectus Supplement constitute the only information
furnished in writing by or on behalf of the Underwriters for inclusion in the
Prospectus (or in any amendment or supplement thereto).
(d) The Depositor agrees to indemnify and hold harmless Fifth Third
(Ohio), its directors, officers, employees and agents and each person who
controls Fifth Third (Ohio) within the meaning of either the Securities Act or
the Exchange Act against any and all losses, claims, damages or liabilities,
joint or several, to which they or any of them may become subject under the
Securities Act, the Exchange Act or other federal or state statutory law or
regulation, at common law 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 a material fact
contained in the Depositor Information included in the Registration Statement,
the preliminary Base Prospectus, the Preliminary Prospectus Supplement, the
Base Prospectus or the Prospectus (or any amendment or supplement thereto).
This indemnity agreement will be in addition to any liability that the
Depositor may otherwise have. Fifth Third (Ohio) acknowledges that the
statements set forth under the headings "Summary--Depositor",
"Summary--Investor Information--Mailing Address and Telephone Number" and "The
Depositor" in the Prospectus Supplement and under the headings "Summary--The
Depositor" and "The Depositor" in the Base Prospectus constitute the only
"Depositor Information" contained in the Prospectus (or in any amendment or
supplement thereto).
(e) Promptly after receipt by an indemnified party under this Section 11
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
this Section 11, notify the indemnifying party in writing of the commencement
thereof; but the failure so to notify the indemnifying party (i) will not
relieve it from liability under paragraph (a), (b), (c) or (d) above, as
applicable, unless and to the extent it did not otherwise learn of such action
and such failure results in the forfeiture by the indemnifying party of
substantial rights and defenses and (ii) will not, in any event, relieve the
indemnifying party from any obligations to any indemnified party other than
the indemnification obligation provided in paragraph (a), (b), (c) or (d)
above, as applicable. The indemnifying party shall be entitled to appoint
counsel of the indemnifying party's choice at the indemnifying party's expense
to represent the indemnified party in any action for which indemnification is
sought (in which case the indemnifying party shall not thereafter be
responsible for the fees and expenses of any separate counsel retained by the
indemnified party or parties except as set forth below); provided, however,
that such counsel shall be reasonably satisfactory to the indemnified party.
Notwithstanding the indemnifying party's election to appoint counsel to
represent the indemnified party in an action, the indemnified party shall have
the right to employ separate counsel (including local counsel), and the
indemnifying party shall bear the reasonable fees, costs and expenses of such
separate counsel if (i) the use of counsel chosen by the indemnifying party to
represent the indemnified party would present such counsel with a conflict of
interest, (ii) the actual or potential defendants in, or targets of, any such
action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties that are different
from or additional to those available to the indemnifying party, (iii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to
14
represent the indemnified party within a reasonable time after notice of the
institution of such action or (iv) the indemnifying party shall authorize the
indemnified party to employ separate counsel at the expense of the
indemnifying party. An indemnifying party will not, without the prior written
consent of the indemnified parties, settle or compromise or consent to the
entry of any judgment with respect to any pending or threatened claim, action,
suit or proceeding in respect of which indemnification or contribution may be
sought hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such settlement, compromise
or consent (x) does not include a statement as to, or admission of, fault,
culpability or a failure to act by or on behalf of any such indemnified party
and (y) includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding.
(f) In the event that the indemnity provided in paragraph (a), (b), (c)
or (d) of this Section 11 is unavailable to or insufficient to hold harmless
an indemnified party for any reason, then the party which would otherwise be
obligated to indemnify with respect thereto, on the one hand, and the parties
which would otherwise be entitled to be indemnified, on the other hand shall
contribute to the aggregate losses, claims, damages and liabilities (including
legal or other expenses reasonably incurred in connection with investigating
or defending same) (collectively "Losses") to which such indemnifying party
and indemnified parties may be subject in such proportion as is appropriate to
reflect the relative benefits from the offering of the Offered Notes received
by the Depositor, the several Underwriters and Fifth Third (Ohio) and its
affiliates considered as a whole for this purpose; provided, however, that in
no case shall any Underwriter be responsible for any amount in excess of the
purchase discount or commission applicable to the Offered Notes purchased by
such Underwriter hereunder. If the allocation provided by the immediately
preceding sentence is unavailable for any reason, the party which would
otherwise be obligated to indemnify pursuant to paragraph (a), (b), (c) or
(d), on the one hand, and the parties which would otherwise be entitled to be
indemnified, on the other hand shall contribute in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the party which would otherwise be obligated to indemnify pursuant to
paragraph (a), (b), (c) or (d), on the one hand, and the parties which would
otherwise be entitled to be indemnified, on the other hand in connection with
the statements or omissions that resulted in such Losses as well as any other
relevant equitable considerations. Benefits received by the Depositor shall be
deemed to be equal to the difference between the total net proceeds from the
offering (before deducting expenses) and the Purchase Price under the
Receivables Purchase Agreement; benefits received by Fifth Third (Ohio) and
its affiliates shall be deemed to be equal to the Purchase Price (before
deducting expenses); and benefits received by any Underwriter shall be deemed
to be equal to the total purchase discounts and commissions received by such
Underwriter in connection with the purchase of the Offered Notes hereunder.
Relative fault shall be determined by reference to whether any alleged untrue
statement or omission relates to information provided by the party which would
otherwise be obligated to indemnify with respect thereto, on the one hand, and
the parties which would otherwise be entitled to be indemnified, on the other.
The Depositor, Fifth Third (Ohio) and the several Underwriters agree that it
would not be just and equitable if contribution were determined by pro rata
allocation or any other method of allocation that does not take account of the
equitable considerations referred to above. Notwithstanding the provisions of
this paragraph (f), no person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For
15
purposes of this Section 11, (x) each person who controls any Underwriter
within the meaning of either the Securities Act or the Exchange Act and each
director, officer, employee and agent of such Underwriter shall have the same
rights to contribution as such Underwriter, (y) each person who controls Fifth
Third (Ohio) within the meaning of either the Securities Act or the Exchange
Act and each director, officer, employee and agent of Fifth Third (Ohio) shall
have the same rights to contribution as Fifth Third (Ohio), and (z) each
person who controls the Depositor within the meaning of either the Securities
Act or the Exchange Act and each officer and director of the Depositor shall
have the same rights to contribution as the Depositor, subject in each case to
the applicable terms and conditions of this paragraph (f).
12. Defaults of the Underwriters. If any Underwriter defaults in its
obligation to purchase the Offered Notes hereunder on the Closing Date and
arrangements satisfactory to the nondefaulting Underwriters and the Depositor
for the purchase of such Offered Notes by other persons are not made within 36
hours after such default, this Agreement will terminate without liability on
the part of the nondefaulting Underwriters or the Depositor, except as
provided in Section 14. As used in this Agreement, the term "Underwriter"
includes any person substituted for an Underwriter under this Section 12.
Nothing herein will relieve a defaulting Underwriter from liability for its
default.
13. No Bankruptcy Petition. Each Underwriter covenants and agrees that,
prior to the date which is one year and one day after the payment in full of
all securities issued by the Depositor or by a trust for which the Depositor
was the depositor, which securities were rated by any nationally recognized
statistical rating organization, it will not institute against, or join any
other Person in instituting against, the Depositor any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings or other
proceedings under any federal or state bankruptcy or similar law.
14. Survival of Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of
Fifth Third (Ohio) or any of its officers, the Depositor or any of its
officers, and the several Underwriters set forth in or made pursuant to this
Agreement or contained in certificates of officers of the Depositor or Fifth
Third (Ohio) submitted pursuant hereto shall remain operative and in full
force and effect, regardless of any investigation or statement as to the
results thereof made by or on behalf of any Underwriter or the Depositor or
Fifth Third (Ohio) or any of their respective representatives, officers or
directors or any controlling person, and will survive delivery of and payment
for the Offered Notes. If for any reason the purchase of the Offered Notes by
the Underwriters is not consummated, the Depositor and Fifth Third (Ohio)
shall remain responsible for the respective expenses to be paid or reimbursed
by the Depositor or Fifth Third (Ohio) pursuant to Section 9 and the
respective obligations of the Depositor, Fifth Third (Ohio) and the
Underwriters pursuant to Section 11 shall remain in effect. If for any reason
the purchase of the Offered Notes by the Underwriters is not consummated
(other than because of a failure to satisfy the conditions set forth in items
(ii), (iv), (v) and (vi) of Section 10(c)), Fifth Third (Ohio) will reimburse
the Underwriters, upon demand, for all out-of-pocket expenses (including
reasonable fees and disbursements of counsel) reasonably incurred by them in
connection with the offering of the Offered Notes.
16
15. Notices. All communications hereunder will be in writing and, if sent
to the Underwriters, will be mailed or delivered to them c/o Citigroup Global
Markets Inc., ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇; if sent to the
Depositor, will be mailed or delivered to it at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇; and if sent to Fifth Third (Ohio), will be mailed or
delivered to it at ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇. Any such
notice will take effect at the time of receipt.
16. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 11, and
no other person will have any right or obligations hereunder.
17. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
18. Applicable Law. This Agreement will be governed by, and construed in
accordance with, the laws of the State of New York.
17
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 Depositor, Fifth Third
(Ohio) and the Underwriters in accordance with its terms.
Very truly yours,
CITIGROUP VEHICLE SECURITIES INC.
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
FIFTH THIRD BANK, an Ohio banking corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Treasurer
The foregoing Underwriting Agreement
is hereby confirmed and accepted
as of the date first written above:
CITIGROUP GLOBAL MARKETS INC.,
for itself and as representative of the
Underwriters
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
18
SCHEDULE I
Citigroup Global Markets Inc.
Fifth Third Securities Inc.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
19
SCHEDULE II
OFFERED NOTES PRINCIPAL AMOUNT PRICE (%)
Class A-1 Notes
---------------
Citigroup Global Markets Inc. $105,750,000 99.83000%
Fifth Third Securities Inc. $ 17,625,000 99.83000%
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated $ 17,625,000 99.83000%
Class A-2 Notes
---------------
Citigroup Global Markets Inc. $222,000,000 99.80533%
Fifth Third Securities Inc. $ 37,000,000 99.80533%
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated $ 37,000,000 99.80533%
Class A-3 Notes
---------------
Citigroup Global Markets Inc. $105,000,000 99.78859%
Fifth Third Securities Inc. $ 17,500,000 99.78859%
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated $ 17,500,000 99.78859%
Class A-4 Notes
---------------
Citigroup Global Markets Inc. $105,843,750 99.74813%
Fifth Third Securities Inc. $ 17,640,625 99.74813%
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated $ 17,640,625 99.74813%