THE FIFTH THIRD BANK AUTO TRUST 1996-B
6.45% ASSET BACKED CERTIFICATES, CLASS A
6.70% ASSET BACKED CERTIFICATES, CLASS B
THE FIFTH THIRD BANK
(Seller and Servicer)
UNDERWRITING AGREEMENT
September 18, 1996
X.X. Xxxxxx Securities Inc.
As Representative of the
Underwriters Listed in Schedule I
(the "Representative")
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies/Gentlemen:
The Fifth Third Bank, a banking corporation organized under the laws
of the State of Ohio (in its individual capacity or as Seller or Servicer
under the Pooling and Servicing Agreement (as hereinafter defined)
("Bank")) and a wholly-owned subsidiary of Fifth Third Bancorp, an Ohio
corporation ("Bancorp"), proposes to sell to the Underwriters listed on
Schedule I hereto ("Underwriters") $367,843,000.00 aggregate principal
amount of 6.45% Asset Backed Certificates, Class A (the "Class A
Certificates") and $18,892,000.00 aggregate principal amount of 6.70% Asset
Backed Certificates, Class B (the "Class B Certificates" and together with
Class A Certificates, the "Certificates") as set forth in Section 1 hereof.
The Certificates are issued by the Fifth Third Bank Auto Trust 1996-B
("Trust"). Each Certificate will represent a fractional undivided interest
in the Trust. The assets of the Trust include, among other things, a pool
of fixed rate retail motor vehicle loans secured by new and used
automobiles and light duty trucks (the "Receivables") and certain monies
received under the Receivables after August 30, 1996 (the "Cutoff Date"),
such Receivables to be sold to the Trust by Bank and to be serviced for the
Trust by Servicer. The Class A Certificates and Class B Certificates will
be issued in an aggregate principal amount of $383,843,909.89 and
$28,892,000.00 respectively, which is approximately equal to 93% and 7% of
the aggregate principal balance of the Receivables as of the Cutoff Date.
$16,000,000.00 aggregate principal amount of the Class A Certificates and
$10,000,000.00 aggregate principal amount of the Class B Certificates will
be sold by Bank directly, and $909.89 aggregate principal amount of the
Class A Certificates will initially be retained by Bank. Payments in
respect of the Class B Certificates are, to the extent specified in the
Pooling Agreement, subordinated to the rights of the holders of the Class A
Certificates. The Certificates will be issued pursuant to a Pooling and
Servicing Agreement, dated as of September 25, 1996 (the "Pooling
Agreement"), among Bank, as seller (in such capacity, "Seller") and as
servicer (in such capacity, "Servicer") and in its individual capacity, and
Xxxxxx Trust and Savings Bank, an Illinois banking corporation, as trustee
("Trustee").
Bank has prepared and filed with the Securities and Exchange
Commission (the "Commission") in accordance with the provisions of the
Securities Act of 1933, as amended (the "Act"), and the rules and
regulations of the Commission thereunder (the "Rules and Regulations"), a
registration statement, including a prospectus and prospectus supplement,
relating to the Certificates. The registration statement, as amended at the
time it became effective, including information (if any) deemed to be part
of the registration statement at the time of effectiveness pursuant to Rule
430A under the Act, is referred to in this Agreement as the "Registration
Statement," and the final form of prospectus (the "Basic Prospectus") and
the final form of the prospectus supplement to the Basic Prospectus
describing the Certificates and offering thereof (the "Prospectus
Supplement") filed in accordance with Rule 424(b) are referred to
collectively in this Agreement as the "Prospectus".
The terms which follow, when used in this Agreement, shall have the
meanings indicated. "Effective Date" shall mean each date that the
Registration Statement and any post-effective amendment or amendments
thereto became or become effective. "Execution Time" shall mean the date
and time that this Agreement is executed and delivered by the parties
hereto. "Rule 424" and "Rule 430A" refer to such rules under the Act.
"Basic Documents" shall mean the Master Assignment Agreement dated as of
March 26, 1996 among each Affiliate Bank and Bank (the "Master Assignment
Agreement"), the Affiliate Bank Security Agreement, the Pooling Agreement,
this Agreement, the Certificates, and the Certificate Depository Agreement.
To the extent not defined herein, capitalized terms used herein have the
meanings assigned to such terms in the Pooling Agreement.
Bank agrees with Underwriters as follows:
1. Bank agrees to sell and deliver the Certificates to Underwriters
as hereinafter provided, and each Underwriter, upon the basis of the
representations and warranties herein contained, but subject to the
conditions hereinafter stated, agrees to purchase severally, and not
jointly, from Bank, the respective aggregate principal amount of Class A
Certificates and the Class B Certificates set forth opposite such
Underwriter's name in Schedule I hereto. Bank will offer $16,000,000.00
aggregate principal amount of the Class A Certificates and $10,000,000.00
aggregate principal amount of the Class B Certificates. The Class A
Certificates and the Class B Certificates are to be purchased by
Underwriters at the respective purchase price of 99.7359375% and
99.6546875% of the aggregate principal amount thereof plus, in each case,
accrued interest, if any, on the principal amount thereof at the Class A
Certificate Rate or Class B Certificate Rate, as applicable calculated from
(but excluding) September 15, 1996 to (and including) the Closing Date.
2. Bank understands that Underwriters intend (i) to make a public
offering of the Certificates purchased by the Underwriters hereunder as
soon after this Agreement has become effective as in the judgment of Bank
and the Representative is advisable and (ii) initially to offer the
Certificates purchased by the Underwriters hereunder upon the terms set
forth in the Prospectus.
3. Payment for the Certificates purchased by the Underwriters
hereunder shall be made to Bank or to its order by wire transfer of same
day funds at the office of Xxxxx, Xxxxx & Xxxxx at 9:00 A.M. Chicago time
on September 25, 1996 or at such other time on the same or such other date,
not later than the fifth Business Day thereafter, as the Representative and
Bank may agree upon in writing (the "Closing Date"). As used herein, the
term "Business Day" means any day other than a day on which banks generally
are permitted or required to be closed in New York, New York or Cincinnati,
Ohio.
Payment for the Certificates purchased by the Underwriters hereunder
shall be made against delivery to the Representative for the respective
accounts of the Underwriters on the Closing Date of such Certificates in
definitive form registered in the name of Cede & Co. as nominee of The
Depositary Trust Company and in such denominations, as permitted by the
Pooling Agreement, as the Representative shall request in writing not later
than two full Business Days prior to the Closing Date, with any transfer
taxes payable in connection with the transfer to Underwriters of the
Certificates duly paid by Bank. Bank shall make such definitive
certificates representing the Certificates available for inspection by the
Representative at the office of X.X. Xxxxxx Securities, Inc., 00 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000 not later than 1:00 P.M., New York
City time, on the Business Day prior to the Closing Date.
4. Bank represents and warrants to and agrees with each Underwriter
that:
(a) The Registration Statement on Form S-3 (No. 333-856),
including the Prospectus and such amendments thereto as may have been
required on or prior to the date hereof, relating to the Certificates,
has been filed with the Commission and such Registration Statement as
amended has become effective.
(b) No stop order suspending the effectiveness of the
Registration Statement has been issued and no proceeding for that
purpose has been instituted or, to the knowledge of Bank, threatened
by the Commission, and on the Effective Date of the Registration
Statement, the Registration Statement and the Prospectus conformed in
all material respects to the requirements of the Act and the Rules and
Regulations, and did not include any untrue statement of a material
fact or omit to state any material fact required to be stated therein,
or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, and on the
Closing Date the Registration Statement and the Prospectus will
conform in all material respects to the requirements of the Act and
the Rules and Regulations, and neither of such documents will include
any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading; provided, that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in
conformity with information furnished to Bank in writing by any
Underwriter expressly for use therein. Bank hereby agrees with
Underwriters that, for all purposes of this Agreement, the only
information furnished to Bank by the Underwriters through the
Representative expressly for use in the Registration Statement, the
Prospectus, or any amendment or supplement thereto, are the statements
with respect to the terms of the offering in the sentence preceding
the sentence regarding the expected delivery date on the cover page
of, the statements with respect to stabilizing transactions in
secondary markets in the Certificates on the third page of, and the
statements (other than the first two sentences which follow the table)
under the caption "Underwriting" in, the Prospectus Supplement.
(c) The computer tape with respect to the Receivables to be
sold to the Trust created as of the Cutoff Date, and made available to
the Representative by Bank, was complete and accurate in all material
respects as of the date thereof.
(d) Bank has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of Ohio, with
power and authority to own its properties and conduct its business and
had at all relevant times, and has, full power, authority and legal
right to acquire, own, sell and service the Receivables and the other
Trust Property to establish the Trust and to sell the Certificates as
contemplated by this Agreement and the Pooling Agreement. Bank has the
power, authority and legal right to execute, deliver and perform this
Agreement and the Basic Documents and to carry out their respective
terms and to sell and assign the property to be sold and assigned to
and deposited with the Trustee as the Trust Property.
(e) The Certificates have been duly authorized, and, when
issued and delivered pursuant to the Pooling Agreement and duly
authenticated by Trustee, will be duly and validly issued,
authenticated and delivered and entitled to the benefits provided by
the Pooling Agreement. The execution, delivery and performance by Bank
of each of this Agreement and the Basic Documents to which it is a
party and the consummation of the transactions contemplated hereby and
thereby have been duly authorized by Bank by all necessary corporate
action. This Agreement and the Basic Documents to which Bank is a
party have been duly executed and delivered by Bank and, when executed
and delivered by Bank and the other parties thereto, each of this
Agreement and such Basic Documents will constitute a legal, valid and
binding obligation of Bank, enforceable against Bank in accordance
with its respective terms, subject, as to enforceability, to
applicable bankruptcy, insolvency, reorganization, moratorium,
conservatorship, receivership, liquidation and other similar laws
affecting enforcement of the rights of creditors of state banks
generally and to equitable limitations on the availability of specific
remedies. The Certificates, this Agreement and the Basic Documents
each conforms to the descriptions thereof in the Prospectus in all
material respects.
(f) No consent, approval, authorization, license or other order
or action of, or filing or registration with, any court or
governmental authority, bureau or agency is required in connection
with the execution, delivery or performance by Bank of this Agreement
or any of the Basic Documents to which Bank is a party or the
consummation of the transactions contemplated hereby or thereby except
such as have been obtained and made under the Act and the Rules and
Regulations or state securities laws and any filings of UCC financing
statements.
(g) Bank is not in violation of its articles of incorporation
or code or regulations or in default in the performance or observance
of any material obligation, agreement, covenant or condition contained
in any agreement or instrument to which it is a party or by which it
is bound which violation or default would have a material adverse
effect on the transactions contemplated herein or in the Pooling
Agreement. The execution, delivery and performance by Bank of this
Agreement and the Basic Documents to which Bank is a party, the
consummation of the transactions contemplated hereby and thereby and
the compliance with the terms and provisions hereof and thereof will
not conflict with or result in a material breach or violation of any
of the terms and provisions of, constitute (with or without notice or
lapse of time or both) a material default under or result in the
creation or imposition of any Lien upon any of its properties pursuant
to the terms of, (A) the articles of incorporation or code of
regulations of Bank, (B) any indenture, contract, lease, mortgage,
deed of trust or other instrument or agreement to which Bank is a
party or by which Bank is bound, or (C) any law, order, rule or
regulation applicable to Bank of any regulatory body, any court,
administrative agency or other governmental instrumentality having
jurisdiction over Bank.
(h) There are no proceedings or investigations pending, or, to
the knowledge of Bank, threatened, to which Bank is a party before any
court, regulatory body, administrative agency or other tribunal or
governmental instrumentality (i) that are required to be disclosed in
the Registration Statement or the Prospectus, (ii) asserting the
invalidity of this Agreement or any of the Basic Documents, (iii)
seeking to prevent the issuance of the Certificates or the
consummation of any of the transactions contemplated by this Agreement
or any of the Basic Documents, (iv) seeking any determination or
ruling that might materially and adversely affect the performance by
Bank of its obligations under, or the validity or enforceability of,
this Agreement or any of the Basic Documents, (v) that may adversely
affect the federal or state income, excise, franchise or similar tax
attributes of the Certificates, or (vi) which, if determined adversely
to Bank, could individually or in the aggregate reasonably be expected
to materially adversely affect the interests of the holders of the
Certificates or the marketability of the Certificates.
(i) There are no contracts or other documents of a character
required to be filed as an exhibit to the Registration Statement or
required to be described in the Registration Statement or the
Prospectus which are not filed or described as required.
(j) The representations and warranties of Bank contained in the
Basic Documents are true and correct in all material respects.
(k) By assignment and delivery of each of the Receivables to
the Trust as of the Closing Date, Bank will transfer title in the
Receivables to the Trust, subject to no prior or equal Lien (other
than Liens under the Basic Documents).
(l) Deloitte & Touche LLP are independent public accountants
with respect to Bank within the meaning of the Act and the Rules and
Regulations.
5. Bank covenants and agrees with Underwriters that:
(a) Prior to the termination of the offering of the
Certificates, Bank will not file or cause to be filed any amendment of
the Registration Statement or the Prospectus Supplement (x) without
first furnishing to the Representative a copy of the proposed
amendment or Prospectus Supplement and giving the Representative a
reasonable opportunity to review the same or (y) to which the
Representative reasonably objects. 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), Bank will cause the Prospectus, properly completed, to be
filed with the Commission pursuant to the applicable paragraph of Rule
424(b) within the time period prescribed and will provide evidence
satisfactory to Underwriters of such timely filing. Bank will promptly
advise Underwriters (i) when the Prospectus shall have been filed with
the Commission pursuant to Rule 424(b), (ii) when any amendment to the
Registration Statement shall have become effective, (iii) of any
request by the Commission for any amendment of the Registration
Statement or supplement to the Prospectus or for any additional
information, (iv) of the receipt by Bank of notification with respect
to the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the initiation or
threatening of any proceeding for that purpose and (v) of the receipt
by Bank of notification with respect to the suspension of the
qualification of the Certificates for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose. Bank
will use its reasonable efforts to prevent the issuance of any such
stop order and, if issued, to obtain as soon as possible the
withdrawal thereof. The consent of the Representative to any amendment
or supplement to the Registration Statement or Prospectus shall not be
deemed a waiver of any condition set forth in Section 7 hereof.
(b) Bank will deliver, at its expense, to the Representative,
two signed copies of the Registration Statement (as originally filed)
and each amendment thereto, in each case including exhibits, and,
during the period mentioned in paragraph (e) below, to each
Underwriter as many copies of the Prospectus (including all amendments
and supplements thereto) as the Representative may reasonably request.
Bank will furnish or cause to be furnished to the Representative
copies of all reports on Form SR required by Rule 463 under the Act.
(c) If during such period of time after the first date of the
public offering of the Certificates as in the opinion of counsel for
Underwriters a prospectus relating to the Certificates is required by
law to be delivered in connection with sales by an Underwriter or a
dealer, any event shall occur as a result of which it is necessary to
amend or supplement the Prospectus in order to make the statements
therein, in the light of the circumstances when the Prospectus is
delivered to a purchaser, not misleading, or it is necessary to amend
or supplement the Prospectus to comply with applicable law, Bank will
forthwith prepare and furnish, at the expense of Bank, to Underwriters
and to the dealers (whose names and addresses the Representative will
furnish to Bank) to which Certificates may have been sold by the
Representative on behalf of Underwriters and upon request by the
Representative to any other dealers identified by the Representative,
such amendments or supplements to the Prospectus as may be necessary
so that the statements in the Prospectus as so amended or supplemented
will not, in the light of the circumstances when the Prospectus is
delivered to a purchaser, be misleading or so that the Prospectus will
comply with applicable law.
(d) Bank will endeavor to qualify the Certificates for offer
and sale under the securities or Blue Sky laws of such jurisdictions
as the Representative shall reasonably request and will continue such
qualification in effect so long as reasonably required for
distribution of the Certificates and will pay all reasonable fees and
expenses (including fees and disbursements of counsel to the
Representative) incurred in connection with such qualification and in
connection with the determination of the eligibility of the
Certificates for investment under the laws of such jurisdictions as
the Representative may designate; provided, that Bank shall not be
obligated to qualify to do business in any jurisdiction in which it is
not currently so qualified; and provided further that Bank shall not
be required to file a general consent to service of process in any
jurisdiction.
(e) On or before April 1, 1997, Bank will cause the Trust to
make generally available to Certificateholders and to the
Representative all financial information required to be sent to
Certificateholders pursuant to the Pooling Agreement.
(f) For the period from the date of this Agreement until the
retirement of all of the Certificates, Servicer will furnish to the
Representative (i) copies of each Servicer's Report and the annual
statements of compliance delivered to the Trustee pursuant to Article
III of the Pooling Agreement and the annual independent certified
public accountant's servicing reports furnished to Trustee pursuant to
Article III of the Pooling Agreement, by first-class mail at the same
time such statements and reports are furnished to the Trustee, (ii)
copies of each amendment to any of the Basic Documents, (iii) copies
of all other reports and communications to any Certificateholders or
Certificate Owners, or to or from the Trustee, the Clearing Agency,
any Rating Agency or the Commission relating to the Trust or the
Certificates, (iv) copies of each Opinion of Counsel and Officer's
Certificate delivered pursuant to the Pooling Agreement, as soon as
available, and (v) from time to time, such other information
concerning the Trust or Bank as the Representative may reasonably
request.
(g) If required, Bank will register the Certificates pursuant
to the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), prior to April 29, 1997.
(h) To the extent, if any, that the ratings provided with
respect to the Certificates by the Rating Agencies are conditional
upon the furnishing of documents or the taking of any other action by
Bank, Bank shall furnish such documents and use reasonable efforts to
take any such other action.
6. Bank will pay all costs and expenses incident to the performance
of its obligations under this Agreement, including, without limiting the
generality of the foregoing, all costs and expenses (i) incident to the
preparation, issuance, execution, authentication and delivery of the
Certificates, (ii) incident to the preparation, printing (or otherwise
reproducing), filing and delivery under the Act of the Registration
Statement, the Prospectus and any preliminary prospectus (including in each
case all exhibits, amendments and supplements thereto), (iii) incurred in
connection with the registration or qualification and determination of
eligibility for investment of the Certificates under the laws of such
jurisdictions as the Representative may designate (including fees and
disbursements of counsel for Underwriters with respect thereto, (iv)
related to any filing with the National Association of Securities Dealers,
Inc., (v) in connection with the printing (including word processing and
duplication costs) and delivery of this Agreement, the Basic Documents and
any Blue Sky Memorandum and the furnishing to Underwriters and dealers of
copies of the Registration Statement, any preliminary prospectus and the
Prospectus (including exhibits, amendments and supplements thereto) as
herein provided, (vi) the fees and disbursements of Bank's counsel and
accountants, (vii) any fees and expenses payable to the Clearing Agency,
(viii) any fees and expenses payable to the Rating Agencies in connection
with the rating of the Certificates and (ix) any fees and expenses of
Trustee.
7. The obligations of Underwriters to purchase and pay for the
Certificates will be subject to the accuracy of the representations and
warranties on the part of Bank herein, to the accuracy of the statements of
officers of Bank made in any writing delivered at the closing pursuant to
the provisions hereof, to the performance by Bank of its obligations
hereunder and to the following additional conditions precedent:
(a) At each of the time this Agreement is executed and
delivered by Bank and at the Closing Date, Deloitte & Touche LLP shall
have furnished to the Representative letters dated, respectively, as
of the date of this Agreement and as of the Closing Date,
substantially in the forms of the drafts to which the Representative
previously agreed and otherwise in form and substance satisfactory to
the Representative.
(b) The form of prospectus used to confirm sales of
Certificates shall have been filed with the Commission pursuant to
Rule 424(b) within the applicable time period prescribed for such
filing by the Rules and Regulations and in accordance with Section
5(a) of this Agreement; no stop order suspending the effectiveness of
the Registration Statement shall be in effect, and no proceedings for
such purpose shall be pending before or, to the knowledge of Bank,
contemplated by the Commission; and all requests for additional
information from the Commission with respect to the Registration
Statement shall have been complied with to the reasonable satisfaction
of the Representative.
(c) The Representative shall have received an officer's
certificate, dated the Closing Date, signed by any Vice President or
more senior officer of Bank, individually and as Servicer,
representing and warranting that, as of the Closing Date, the
representations and warranties of Bank or Servicer, as applicable, in
this Agreement and the Basic Documents are true and correct, that Bank
or Servicer, as applicable, has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied
hereunder or under the Basic Documents at or prior to 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, to the best of such officer's
knowledge, contemplated by the Commission, and that since December 31,
1995, there has been no material adverse change, or any development
involving a prospective material adverse change, in or affecting
particularly Seller's portfolio of Motor Vehicle Loans or the business
or properties of the Trust, Bancorp, Bank or any Affiliate of Bank
(each, an "Affiliate Bank") selling Receivables to Bank pursuant to
the Master Assignment Agreement.
(d) Subsequent to the execution and delivery of this Agreement,
there shall not have occurred (i) any material adverse change, or any
development involving a prospective material adverse change, in or
affecting the affairs, business, operations, financial condition,
prospects or properties of the Trust, Bancorp, Bank or any Affiliate
Bank which, in the reasonable judgment of the Representative,
materially impairs the investment quality of the Certificates or makes
it impractical or inadvisable to proceed with completion of the sale
of and payment for the Certificates, (ii) any downgrading in the
rating of any rated debt securities of Bank or any Affiliate Bank or
any of Bank's direct or indirect subsidiaries by any "nationally
recognized statistical rating organization" (as defined for purposes
of Rule 436(g) under the Act), or any public announcement that any
such organization has under surveillance or review its rating of any
such debt securities (other than an announcement with no implication
of a possible downgrading, of such rating).
(e) The Representative shall have received an opinion of Xxxx
X. Xxxxxxxxxx, Esq., Counsel of Bank, addressed to the Representative
and the Trustee, dated the Closing Date and satisfactory in form and
substance to the Representative and its counsel, to the effect that:
(i) Each Affiliate Bank and Bank is a "bank" as such term
is defined in Title 12 U.S.C. Section 371c(b)(5).
(ii) Each of Bank and each Affiliate Bank has been duly
organized and is validly existing as a corporation in good
standing under the laws of the jurisdiction of its organization
with corporate power and authority to own its properties and
conduct its business as described in the Prospectus and to enter
into and perform its obligations under the Basic Documents to
which it is a party and has obtained all necessary licenses and
approvals in each jurisdiction in which failure to qualify or to
obtain such license or approval would render any Receivable
unenforceable by Bank or the Trustee.
(iii) The execution, delivery and performance by each of
Bank and each Affiliate Bank of the Basic Documents to which
such Person is a party and the consummation of the transactions
contemplated thereby, will not conflict with, or result in a
breach, violation or acceleration of, or constitute a default
under, the articles of incorporation or code of regulations or
similar documents of such Person, or any material agreement or
instrument known to such counsel to which such member is a party
or by which such member is bound or to which any of the
properties of such member is subject.
(iv) The execution, delivery and performance by Bank and
each Affiliate Bank of the Basic Documents to which such Person
is a party and the consummation of the transactions contemplated
thereby, will not violate any statute, rule or regulation or, to
such counsel's knowledge, any order of any governmental agency
or body or any court having jurisdiction over such Person or any
of their respective properties.
(v) No consent, approval, authorization or order of, or
filing with, any governmental agency or body or any court is
required for the consummation by Bank and each Affiliate Bank of
the transactions contemplated by the Basic Documents, except
such as are required and have been obtained and made under the
Securities Act, such as may be required under state securities
laws and any financing statement filings that are being made to
perfect sales or security interests in connection with such
transactions (it being understood that this opinion will be
given only with respect to such consents, approvals,
authorizations, orders and filings that, in such counsel's
experience, are customarily applicable in transactions of the
type contemplated by the Basic Documents).
(vi) The Basic Documents to which each of Bank and each
Affiliate Bank is a party have been duly authorized, executed
and delivered by such Person and the Master Assignment Agreement
and the Affiliate Bank Security Agreement are legal, valid and
binding obligations of each Affiliate Bank, enforceable against
such Affiliate Bank in accordance with their terms, subject to
the effect of any applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors'
rights generally or the rights of creditors of institutions the
deposits of which are insured by the Federal Deposit Insurance
Corporation (the "FDIC") and to the effect of general principles
of equity, including concepts of materiality, reasonableness,
good faith and fair dealing (regardless of whether considered in
a proceeding in equity or at law).
(vii) The Receivables of each Affiliate Bank and Bank are
chattel paper as defined in the UCC.
(viii) Assuming that the standard procedures of each
Affiliate Bank and Bank with respect to the perfection of a
security interest in new or used automobiles or light duty
trucks financed by such Affiliate Bank or Bank pursuant to note
and security agreements in the ordinary course of business of
such Affiliate Bank or Bank, as applicable, have been followed
with respect to the perfection of security interests in the
Financed Vehicles, such Affiliate Bank and Bank, as applicable,
have acquired or will acquire a perfected security interest in
the Financed Vehicles.
(ix) The transfer of the Receivables from each Affiliate
Bank to Bank either (x) is a true sale of the Receivables to
Bank such that in the event of an appointment of a conservator
or receiver of such Affiliate Bank the Receivables and proceeds
thereof would not constitute assets of such Affiliate Bank or
(y) creates a valid and enforceable security interest in the
Receivables in favor of Bank.
(x) If a court concludes that the transfer of the
Receivables from each Affiliate Bank to Bank is a sale pursuant
to the Master Assignment Agreement, the interest of Bank in the
Receivables, the security interests in the Financed Vehicles
securing the Receivables and the proceeds of each of the
foregoing will be perfected upon the filing of a UCC financing
statement with the Secretary of State of the State of Ohio and
appropriate county filing office and (subject only to the Lien
under the Affiliate Security Agreement) will constitute a first
priority perfected interest therein. If a court concludes that
the transfer of Receivables from each Affiliate Bank to Bank is
not a sale, the Master Assignment Agreement constitutes a grant
by such Affiliate Bank to Bank of a valid security interest in
the Receivables, the security interests in the Financed Vehicles
securing the Receivables and the proceeds of each of the
foregoing, which security interest will be perfected upon the
filing of the UCC financing statement with the Secretary of
State of the State of Ohio and appropriate county filing office
and (subject only to the Liens under the Basic Documents) will
constitute a first priority perfected security interest therein.
No filing or other action, other than the filing of the UCC
financing statement with the Secretary of State of the State of
Ohio and appropriate county filing office, is necessary to
perfect and maintain the interest or the security interest of
Bank in the Receivables, the security interests in the Financed
Vehicles securing the Receivables and the proceeds of each of
the foregoing against third parties.
(xi) The Affiliate Bank Security Agreement to which each
Affiliate Bank is a party constitutes a grant by such Affiliate
Bank to the Trustee of a valid security interest in the
Receivables, the security interests in the Financed Vehicles
securing the Receivables and the proceeds of each of the
foregoing, which security interest will be perfected upon the
filing of the UCC financing statement with each of the filing
offices listed on Schedule I and (subject only to the Lien under
the Master Assignment Agreement) will constitute a first
priority perfected security interest therein. No filing or other
action, other than the filing of the UCC financing statement
with each of the filing offices listed on Schedule I, is
necessary to perfect and maintain the interest or the security
interest of the Trustee in the Receivables, the security
interests in the Financed Vehicles securing the Receivables and
the proceeds of each of the foregoing against third parties.
(xii) The statements in the Basic Prospectus under the
headings "Summary of Terms--Certain Legal Aspects of the
Receivables; Repurchase Obligations," "Risk Factors--Certain
Legal Aspects" to the extent they constitute matters of Ohio law
or legal conclusions with respect thereto, are correct in all
material respects.
(xiii) Such counsel has examined various documents and
participated in conferences with representatives of Bank, its
counsel and its accountants and with representatives of
Underwriters, at which time the contents of the Registration
Statement and the Prospectus and related matters were discussed.
However, except as specifically noted above, such counsel need
not assume any responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration
Statement and the Prospectus. Subject to the foregoing, such
counsel shall advise that no facts have come to his attention
that cause him to believe that the Registration Statement or the
Prospectus, at the Closing Date, contains any untrue statement
of a material fact or omits to state any material fact necessary
in order to make (x) the statements in the Registration
Statement (insofar as such statements relate to the Affiliate
Banks, the Bank and matters related to the motor vehicle loan
business of the Affiliate Banks and Bank) not misleading and (y)
the statements in the Prospectus (insofar as such statements
relate to the Affiliate Banks, the Bank and matters related to
the motor vehicle loan business of the Affiliate Banks and Bank)
not misleading in the light of the circumstances under which
they were made (in each case except for the financial statements
and related schedules or other financial or statistical data
included or incorporated by reference therein, as to which such
counsel will not be called upon to express a belief).
(xiv) There are no actions, proceedings or investigations
pending or, to the best of such counsel's knowledge, threatened
before any court, administrative agency, or other tribunal (1)
asserting the invalidity of any of the Basic Documents, (2)
seeking to prevent the consummation of any of the transactions
contemplated by any of the Basic Documents or the execution and
delivery thereof, or (3) that could reasonably be expected to
materially and adversely affect the performance by any Affiliate
Bank or Bank, as applicable, of its obligations under, or the
validity or enforceability of, any of the Basic Documents.
(xi) To the best of such counsel's knowledge, there are no
contracts or other documents of a character required to be filed
as an exhibit to the Registration Statement or required to be
described in the Registration Statement or the Prospectus which
are not filed or described as required.
Such counsel shall also opine as to such other matters as the
Representative may reasonably request.
(f) The Representative shall have received an opinion or
opinions of Xxxxx, Xxxxx & Xxxxx, counsel to Bank and the
Representative addressed to the Representative and Bank, dated the
Closing Date and satisfactory in form and substance to the
Representative, Bank and their respective counsel, to the effect that:
(i) When duly executed and delivered by Bank, the Basic
Documents to which Bank is a party are legal, valid and binding
obligations of Bank, enforceable against Bank in accordance with
their terms, subject to the effect of any applicable bankruptcy,
insolvency, reorganization, moratorium or similar law affecting
creditors' rights generally or the rights of creditors of
institutions the deposits of which are insured by the FDIC and
to the effect of general principles of equity, including
concepts of materiality, reasonableness, good faith and fair
dealing (regardless of whether considered in a proceeding in
equity or at law).
(ii) When the Certificates have been duly executed,
authenticated and delivered by the Trustee in accordance with
the Pooling Agreement and delivered and paid for pursuant to
this Agreement, the Certificates will be legally issued, fully
paid and non-assessable and entitled to the benefits of the
Pooling Agreement, subject to the effect of any applicable
bankruptcy, insolvency, reorganization, moratorium or similar
law affecting creditors' rights generally and to the effect of
general principles of equity, including concepts of materiality,
reasonableness, good faith and fair dealing (regardless of
whether considered in a proceeding in equity or at law).
(iii) The Affiliate Bank Security Agreement constitutes a
grant by each Affiliate Bank to the Trust of a valid security
interest in the Affiliate Receivables Assets of such Affiliate
Bank.
(iv) With respect to each Affiliate Bank with its chief
executive office located in the States of Ohio, Indiana or
Kentucky, the security interest in its Receivables, the security
interests in the Financed Vehicles securing the Receivables and
the proceeds of each of the foregoing (the "Affiliate
Receivables Assets") granted by such Affiliate Bank to the
Trustee pursuant to the Affiliate Security Agreement will be
perfected upon the filing of a UCC financing statement with the
applicable filing offices of the Secretary of State of the State
of Ohio and any local filing office, the Secretary of State of
the State of Indiana and the Secretary of State of the State of
Kentucky and, based solely upon on our review of the Affiliate
Bank Lien Search Reports, will constitute a perfected security
interest prior to any other security interest that may be
perfected solely by the filing of a financing statement under
the Uniform Commercial Code in effect in the states of Ohio,
Indiana and Kentucky. Based solely upon the Affiliate Bank Lien
Search Reports, no filing or other action, other than the filing
of the UCC financing statement with the Secretary of State of
the State of Ohio and any local filing office and the Secretary
of State of the State of Indiana and the Secretary of State of
the State of Kentucky, is necessary to perfect and maintain the
interest or the security interest of Bank in the Receivables,
the security interests in the Financed Vehicles securing the
Receivables and the proceeds of each of the foregoing against
third parties.
(v) With respect to each Affiliate Bank with its chief
executive office located in the States of Indiana or Kentucky,
the right, title and interest of the Bank in the Receivables
Assets acquired under the Master Assignment Agreement will be
perfected upon the filing of a UCC financing statement with the
applicable filing offices of the Secretary of State of the State
of Ohio and any local filing office and Secretary of State of
the State of Indiana and the Secretary of State of the State of
Kentucky and, based solely upon on our review of the Affiliate
Bank Lien Search Reports, will constitute a perfected security
interest prior to any other security interest that may be
perfected solely by the filing of a financing statement under
the Uniform Commercial Code in effect in the states of Ohio,
Indiana and Kentucky. Based solely upon the Affiliate Bank Lien
Search Reports, no filing or other action, other than the filing
of the UCC financing statement with the Secretary of State of
the State of Ohio and any local filing office and the Secretary
of State of the State of Indiana and the Secretary of State of
the State of Kentucky, is necessary to perfect and maintain the
interest or the security interest of Bank in the Receivables,
the security interests in the Financed Vehicles securing the
Receivables and the proceeds of each of the foregoing against
third parties.
(vi) In the event that the FDIC were to be appointed as
conservator or receiver for any Affiliate Bank pursuant to
Section 11(c) of the Federal Deposit Insurance Act, as amended
(the "FDIA"), the security interest granted by such Affiliate
Bank to Trustee pursuant to the Affiliate Bank Security
Agreement would be enforceable against such Affiliate Bank
notwithstanding the appointment of the FDIC as conservator or
receiver for such Affiliate.
(vii) The transfer of the Receivables from Bank to the
Trustee pursuant to the Pooling Agreement is either (x) a true
sale of the Receivables to the Trustee such that in the event of
an appointment of a conservator or receiver of Bank the
Receivables and proceeds thereof would not constitute assets of
Bank or (y) creates a valid and enforceable security interest in
the Receivables in favor of the Trust.
(viii) In the event that the FDIC were to be appointed as
conservator or receiver for Bank pursuant to Section 11(c) of
the FDIA, and a court were to recharacterize the transfer to
Trustee pursuant to the Pooling Agreement of Bank's right,
title, and interest in and to the Receivables and other Trust
Property as a borrowing secured by a security interest of
Trustee in such assets for the benefit of Holders, rather than
as an absolute sale of such assets by Bank to the Trust,
such security interest would be enforceable against Bank
notwithstanding the appointment of the FDIC as conservator or
receiver for Bank.
(ix) For New York and Illinois income and franchise tax
purposes, the Trust will not be classified as a separate entity
subject to taxation, and, accordingly, will not be subject to
tax in such states.
(x) Certificateholders who are not residents of or
domiciled in or that would not otherwise be subject to tax in
New York and Illinois will not be subject to New York and
Illinois income or franchise taxes with respect to interest or
other amounts received from the Certificates or with respect to
any of the Receivables.
(xi) The Trust created by the Pooling Agreement will not
be classified as an association taxable as a corporation for
federal income tax purposes and, instead, under subpart E, part
I of subchapter J of the Internal Revenue Code of 1986, as
amended, the Trust will be treated as a grantor trust and,
subject to possible recharacterization of certain fees or
payments paid by the Trust to the Bank or the Servicer, each
Certificateholder will be treated as the owner of an undivided
pro rata interest in the income and corpus attributable to the
Trust.
(xii) The Reserve Account will not be treated as an
association taxable as a corporation or other separate taxable
entity for federal or applicable Illinois or New York state tax
purposes; rather, the Bank will be treated as the owner of the
Reserve Account and the funds therein for such purposes.
(xiii) The Pooling Agreement is not required to be
qualified under the Trust Indenture Act and the Trust is not
required to be registered under the Investment Company Act of
1940, as amended.
(xiv) The Registration Statement has become effective
under the Act, any required filing of the Basic Prospectus, any
preliminary Basic Prospectus, any preliminary Prospectus
Supplement and the Prospectus pursuant to Rule 424(b) has been
made in the manner and within the time period required by Rule
424(b), and, to the best knowledge of such counsel, no stop
order suspending the effectiveness of the Registration Statement
has been issued and no proceedings for that purpose have been
instituted or are pending or contemplated under the Act; and the
Registration Statement and the Prospectus, and each amendment or
supplement thereto, as of the Closing Date (in the case of the
Registration Statement) and as of their respective issue dates
(in the case of the Prospectus), complied as to form in all
material respects with the requirements of the Act and the Rules
and Regulations.
(xv) The statements in the Basic Prospectus under the
headings "Summary of Terms--Certain Legal Aspects of the
Receivables; Repurchase Obligations," "Risk Factors--Certain
Legal Aspects" to the extent they constitute matters of law or
legal conclusions with respect thereto, are correct in all
material respects.
(xvi) The statements contained in the Basic Prospectus and
the Prospectus Supplement under the headings "Description of the
Certificates" and "Description of the Transfer and Servicing
Agreements," insofar as such statements constitute a summary of
the Certificates and the Pooling Agreement, fairly represent the
matters referred to therein.
The opinion of Xxxxx, Xxxxx & Xxxxx shall also state that such counsel
has examined various documents and participated in conferences with
representatives of Bank, its counsel and its accountants and with
representatives of the Representative, at which time the contents of the
Registration Statement and the Prospectus and related matters were
discussed. However, except as specifically noted above, such counsel need
not assume any responsibility for the accuracy, completeness or fairness of
the statements contained in the Registration Statement and the Prospectus.
Subject to the foregoing, such counsel shall advise that no facts have come
to their attention that cause them to believe that the Registration
Statement or the Prospectus, at the Closing Date, contains any untrue
statement of a material fact or omits to state any material fact necessary
in order to make (x) the statements in the Registration Statement (insofar
as such statements relate to a description of the Basic Documents and the
transactions contemplated thereby) not misleading and (y) the statements in
the Prospectus (insofar as such statements relate to a description of the
Basic Documents and the transactions contemplated thereby) not misleading
in the light of the circumstances under which they were made (in each case
except for the financial statements and related schedules or other
financial or statistical data included or incorporated by reference
therein, as to which such counsel will not be called upon to express a
belief).
The opinion of Xxxxx, Xxxxx & Xxxxx shall also state that, in its
capacity as Federal tax and ERISA counsel for Bank, the statements in the
Basic Prospectus under the headings "Summary of Terms--Tax Status" (to the
extent relating to Federal income tax consequences) and "Certain Federal
Income Tax Consequences" and in the Prospectus Supplement under the
headings "Summary of Terms--Tax Status" (to the extent relating to Federal
income tax consequences) accurately describe the material Federal income
tax consequences to holders of the Certificates, and the statements in the
Basic Prospectus under the headings "Summary of Terms--ERISA
Considerations" and "ERISA Considerations," and in the Prospectus
Supplement under the headings "Summary of Terms--ERISA Considerations" and
"ERISA Considerations" to the extent that they constitute statements of
matters of law or legal conclusions with respect thereto, have been
prepared or reviewed by such counsel and accurately describe the material
consequences to holders of the Certificates under ERISA.
Such counsel shall also opine as to such other matters as the
Representative may reasonably request.
(g) The Representative shall have received an opinion or opinions of
Squire, Xxxxxxx & Xxxxxxx, Ohio counsel to Bank addressed to the
Representative and Bank, dated the Closing Date and satisfactory in form
and substance to the Representative, Bank and their counsel, to the effect
that:
(i) If a court concludes that the transfer of the
Receivables from Bank to the Trust is a sale, the interest of
the Trust in the Receivables, the security interests in the
Financed Vehicles securing the Receivables and the proceeds of
each of the foregoing will be perfected upon the filing of a UCC
financing statement with the Secretary of State of the State of
Ohio and with Xxxxxxxx County and will constitute a first
priority perfected interest therein.
(ii) If a court concludes that the transfer of Receivables
from Bank to the Trust is not a sale, the security interest
granted by Bank to the Trust under the Pooling Agreement in the
Receivables, the security interests in the Financed Vehicles
securing the Receivables and the proceeds of each of the
foregoing will be perfected upon the filing of UCC financing
statements with the Secretary of State of Ohio and with Xxxxxxxx
County and will constitute a first priority perfected security
interest therein. No filing or other action, other than the
filing of UCC financing statements with the Secretary of State
of the State of Ohio and with Xxxxxxxx County referred to above,
is necessary to perfect and maintain the interest or the
security interest of the Trust in the Receivables, the security
interests in the Financed Vehicles securing the Receivables and
the proceeds of each of the foregoing against third parties.
(iii) The Master Assignment Agreement is effective to
assign the security interest of the Affiliate Bank party thereto
in Financed Vehicles titled in Ohio to Bank notwithstanding the
fact that the certificates of title relating to such Financed
Vehicles will not be endorsed or otherwise amended to identify
Bank as the new secured party.
(iv) The Pooling Agreement is effective to assign Bank's
security interest in Financed Vehicles titled in Ohio to the
Trustee, notwithstanding the fact that the certificates of title
relating to such Financed Vehicles will not be endorsed or
otherwise amended to identify as the new secured party.
Such counsel shall also opine as to such other matters as the
Representative may reasonably request.
(h) The Representative shall have received an opinion or opinions of
Squire, Xxxxxxx & Xxxxxxx, Ohio counsel to Bank addressed to the
Representative and Bank, dated the Closing Date and satisfactory in form
and substance to the Representative, Bank and their counsel, to the effect
that:
(i) For purposes of the application of Ohio tax laws, the
Trust will not be classified as a separate entity subject to
taxation, and, accordingly, will not be subject to tax in Ohio.
(ii) Certificateholders who are not residents of or
domiciled in or that would not otherwise be subject to tax in
Ohio will not be subject to Ohio income, franchise or other
taxes with respect to interest or other amounts received from
the Certificates or with respect to any of the Receivables.
(iii) The Reserve Account will not be treated as an
association taxable as a corporation or other separate taxable
entity for Ohio state tax purposes; rather, the Bank will be
treated as the owner of the Reserve Account and the funds
therein for such purposes.
Such counsel shall also opine as to such other matters as the
Representative may reasonably request.
(i) The Representative shall have received opinions addressed to the
Representative and Bank of internal counsel to the Trustee and Xxxxxx &
Xxxxxxx, special counsel to the Trustee, dated the Closing Date and
satisfactory in form and substance to the Representative, Bank and their
respective counsel, collectively to the effect that:
(i) The Trustee is duly incorporated, validly existing in
good standing as a banking corporation under the laws of the
State of Illinois.
(ii) The Trustee has power and authority to execute,
deliver and perform the Pooling Agreement and to consummate the
transactions contemplated thereby.
(iii) The Pooling Agreement has been duly authorized,
executed and delivered by the Trustee. Each of the Certificates
has been duly authorized, executed and delivered by the Trustee,
as trustee and authenticating agent.
(iv) The Pooling Agreement constitutes a legal, valid and
binding obligation of the Trustee, enforceable against the Trust
in accordance with its respective terms, subject to the effect
of any applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors' rights generally
or the rights of creditors of institutions the deposits of which
are secured by the FDIC, and to the effect of general principles
of equity, including concepts of materiality, reasonableness,
good faith and fair dealing (regardless of whether considered in
a proceeding in equity or at law).
(v) Neither the execution, delivery or performance by the
Trustee of the Pooling Agreement nor the compliance with the
terms and provisions thereof, nor the performance of its
obligations thereunder, conflicts or results in a breach of or
constitutes a default under any of the terms, conditions or
provisions of any law, government rule or regulation of the
United States or the State of Illinois or New York governing the
banking or trust powers of the Trustee or the charter or bylaws
of the Trustee or, to our knowledge, any order, writ, injunction
or decree of any court or governmental authority against the
Trustee or by which it or any of its properties is bound or, to
our knowledge, any indenture, mortgage or contract or other
agreement or instrument to which the Trustee is a party or by
which it or any of its properties is bound, or results in the
creation or imposition of any Lien, charge or encumbrance upon
any of its properties pursuant to any agreement or instrument,
except encumbrances and security interests contemplated by the
Pooling Agreement.
(vi) No authorizations, consents or approvals of, notice
to or filing with, or the taking of any other action in respect
of, any governmental authority or agency of the United States or
the State of Delaware is required for the execution, delivery or
performance by the Trustee of each of the Pooling Agreement and
the Certificates.
(vii) There are no actions, suits or proceedings pending
or, to the best of our knowledge, threatened against the Trustee
before any court, or by or before any federal, state, municipal
or other governmental department, commission, board, bureau or
governmental agency or instrumentality, or arbitrator which
would, if adversely determined, affect in any material respect
the consummation, validity or enforceability against the Trustee
of any of the Pooling Agreement or the Certificates.
(viii) If the Trustee were acting as Servicer under the
Pooling Agreement as of the date of this Agreement, the Trustee
would have the corporate power and authority to perform the
obligations of Servicer as provided in the Pooling Agreement.
Such counsel shall also opine as to such other matters as the
Representative may reasonably request.
(j) The Representative shall have received a letter or letters from
each counsel delivering any written opinion to any Rating Agency in
connection with the transaction described herein which is not otherwise
described in this Agreement allowing Underwriters to rely on such opinion
as if it were addressed to Underwriters.
(k) The Class A Certificates shall have been rated in the highest
investment rating category by Xxxxx'x Investors Service, Inc. ("Moody's")
and Standard & Poor's Ratings Services, a division of The XxXxxx-Xxxx
Companies, Inc. ("S&P"), and the Class B Certificates shall have been rated
"A" by S&P and "Baa1" by Moody's.
(l) On the Closing Date, the representations and warranties of Bank
in the Pooling Agreement will be true and correct in all material respects.
(m) Any taxes, fees and other governmental charges which are due and
payable in connection with the execution, delivery and performance of this
Agreement and the Basic Documents shall have been paid by Bank at or prior
to the Closing Date.
(n) The Bank shall have made or caused to be made a deposit in the
Reserve Account in the amount of the Reserve Account Initial Deposit.
8. Bank agrees to indemnify and hold harmless each Underwriter and
each person, if any, who controls any Underwriter within the meaning of
either Section 15 of the Act or Section 20 of the Exchange Act, from and
against any and all losses, claims, damages and liabilities (including,
without limitation, the legal fees and other expenses incurred in
connection with investigating, preparing or defending any suit, action or
proceeding or any claim asserted), caused by any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement or the Prospectus (as amended or supplemented if Bank shall have
furnished such amendments or supplements thereto) or any preliminary
prospectus, or caused by any omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any untrue statement or omission or
alleged untrue statement or omission made in reliance upon and in
conformity with information furnished to Bank in writing by any Underwriter
through the Representative expressly for use therein; provided that the
foregoing indemnity with respect to any preliminary prospectus shall not
inure to the benefit of any Underwriter (or to the benefit of any person
controlling such Underwriter) from whom the person asserting any losses,
claims or damages purchased Certificates if such untrue statement or
omission or alleged untrue statement or omission made in such preliminary
prospectus is eliminated or remedied in the Prospectus (as amended or
supplemented if Bank shall have furnished any amendments or supplements
thereto) and a copy of the Prospectus (as so amended or supplemented) shall
not have been furnished to such person at or prior to the written
confirmation of the sale of such Certificates to such person.
Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless Bank, each director and officer of Bank who signed the
Registration Statement and each person who controls Bank within the meaning
of Section 15 of the Act or Section 20 of the Exchange Act to the same
extent as the foregoing indemnity from Bank to each Underwriter, but only
with reference to information furnished to Bank in writing by such
Underwriter through the Representative expressly for use in the
Registration Statement, the Prospectus, any amendment or supplement
thereto, or any preliminary prospectus.
If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted
against any person in respect of which indemnity may be sought pursuant to
either of the two preceding paragraphs, such person (the "Indemnified
Person") shall promptly notify the person against whom such indemnity may
be sought (the "Indemnifying Person") in writing, and the Indemnifying
Person, upon request of the Indemnified Person, shall retain counsel
reasonably satisfactory to the Indemnified Person to represent the
Indemnified Person and any others the Indemnifying Person may designate in
such proceeding and shall pay the reasonable fees and expenses of such
counsel related to such proceeding. In any such proceeding, any Indemnified
Person 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 Person
unless (i) the Indemnifying Person and the Indemnified Person shall have
mutually agreed to the contrary, (ii) the Indemnifying Person has failed
within a reasonable time to retain counsel reasonably satisfactory to the
Indemnified Person or (iii) the named parties in any such proceeding
(including any impleaded parties) include both the Indemnifying Person and
the Indemnified Person and representation of both parties by the same
counsel would be inappropriate due to actual or potential differing
interests between them. It is understood that the Indemnifying Person shall
not, in connection with any proceeding or related proceeding in the same
jurisdiction, be liable for the fees and expenses of more than one separate
firm (in addition to any local counsel) for all Indemnified Persons, and
that all such fees and expenses shall be reimbursed as they are incurred.
Any such separate firm for Underwriters and such control persons of
Underwriters shall be designated in writing by the Representative and any
such separate firm for Bank, its directors, its officers who sign the
Registration Statement or control persons shall be designated in writing by
Bank. The Indemnifying Person shall not be liable for any settlement of any
claim or proceeding effected without its written consent, but if settled
with such consent or if there be a final judgment for the plaintiff, the
Indemnifying Person agrees to indemnify any Indemnified Person from and
against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an Indemnified
Person shall have requested an Indemnifying Person to reimburse the
Indemnified Person for fees and expenses of counsel as contemplated by the
third sentence of this paragraph, the Indemnifying Person agrees that it
shall be liable for any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more than 30 days
after receipt by such Indemnifying Person of the aforesaid request and (ii)
such Indemnifying Person shall not have reimbursed the Indemnified Person
in accordance with such request prior to the date of such settlement. No
Indemnifying Person shall, without the prior written consent of the
Indemnified Person, effect any settlement of any pending or threatened
proceeding in respect of which any Indemnified Person is or could have been
a party and indemnity could have been sought hereunder by such Indemnified
Person, unless such settlement includes an unconditional release of such
Indemnified Person from all liability on claims that are the subject matter
of such proceeding.
If the indemnification provided for in the first and second paragraphs
of this Section 8 is unavailable to an Indemnified Person in respect of any
losses, claims, damages or liabilities referred to therein, then each
Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or
payable by such Indemnified Person as a result of such losses, claims,
damages or liabilities (i) in such proportion as is appropriate to reflect
the relative benefits received by Bank on the one hand and Underwriters on
the other hand from the offering of the Certificates or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law,
in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of
Bank on the one hand and 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 Bank on the one hand and Underwriters on the
other shall be deemed to be in the same respective proportions as the net
proceeds from the offering (before deducting expenses) received by Bank and
the total underwriting discounts and the commissions received by
Underwriters, in each case as set forth in the table on the cover of the
Prospectus, bear to the aggregate public offering price of the
Certificates. The relative fault of Bank on the one hand and Underwriters
on the other 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 Bank or by any of the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
Bank and Underwriters agree that it would not be just and equitable if
contribution pursuant to this Section 8 were determined by pro rata
allocation or by any other method of allocation that does not take account
of the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an Indemnified Person as a result
of the losses, claims, damages and liabilities referred to in the
immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses incurred by such
Indemnified Person in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 8, in no
event shall an Underwriter be required to contribute any amount in excess
of the amount by which the total price at which the Certificates
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages that such Underwriter has otherwise 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 Act) shall be
entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations to contribute
pursuant to this Section 8 are several in proportion to the respective
aggregate principal amount of Certificates set forth opposite their names
in Schedule I hereto, and not joint.
The indemnity and contribution agreements contained in this Section 8
are in addition to any liability which the Indemnifying Persons may
otherwise have to the Indemnified Persons referred to above.
The indemnity and contribution agreements contained in this Section 8
and the representations and warranties of Bank set forth in this Agreement
shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on behalf
of any Underwriter or any person controlling any Underwriter or by or on
behalf of Bank, or any of their officers or directors or any other person
controlling Bank and (iii) acceptance of and payment for any of the
Certificates.
9. Notwithstanding anything herein contained, this Agreement may be
terminated in the absolute discretion of the Representative, by notice
given to Bank, if 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 or by, as the case may be, the New York Stock
Exchange or the American Stock Exchange, or there shall have been any
setting of minimum prices for trading on either such exchange; (ii) trading
of any securities of or guaranteed by Fifth Third Bancorp or Bank shall
have been suspended on any exchange or in any over-the-counter market;
(iii) a moratorium on commercial banking activities in New York or Ohio
shall have been declared by either federal, New York or Ohio 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 the
judgment of the Representative is material and adverse and which, in the
judgment of the Representative, makes it impracticable to market the
Certificates on the terms and in the manner contemplated in the Prospectus.
10. This Agreement shall become effective upon the execution and
delivery hereof by the parties hereto.
11. If on the Closing Date (i) any Underwriter shall fail or refuse
to purchase any Certificates which it has agreed to purchase hereunder on
such date, (ii) such failure or refusal shall constitute a default in the
performance of such Underwriter's obligations hereunder, and (iii) the
aggregate principal amount of Certificates which such defaulting
Underwriter agreed but failed or refused to purchase is not more than
one-tenth of the aggregate principal amount of the Certificates to be
purchased by Underwriters on such date, the other Underwriters shall be
obligated to purchase the Certificates which such defaulting Underwriter
agreed but failed or refused to purchase on such date in the respective
proportions that the portion of the Certificates set forth opposite their
names in Schedule I hereto bears to the aggregate principal amount of
Certificates to be purchased by the remaining Underwriters. If on the
Closing Date (i) any Underwriter shall fail or refuse to purchase
Certificates which it has agreed to purchase hereunder on such date, (ii)
such failure or refusal shall constitute a default in the performance of
such Underwriter's obligations hereunder, (iii) the aggregate principal
amount of Certificates with respect to which such default occurs is more
than one-tenth of the aggregate principal amount of Certificates to be
purchased by the Underwriters on such date, and (iv) arrangements
satisfactory to the non-defaulting Underwriters and the Bank for the
purchase of such Certificates are not made within 36 hours after such
default, this Agreement shall terminate without liability on the part of
any non-defaulting Underwriter or the Bank. In any such case either the
Representative or the Bank shall have the right to postpone the Closing
Date, but in no event for longer than seven days, in order that the
required changes, if any, in the Registration Statement and in the
Prospectus or in any other documents or arrangements may be effected. Any
action taken under this paragraph shall not relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter
under this Agreement.
12. If this Agreement shall be terminated by the Underwriters or any
one of them because of any failure or refusal on the part of Bank to comply
with the terms or to fulfill any of the conditions of this Agreement, or if
for any reason Bank shall be unable to perform its obligations under this
Agreement or any condition precedent to Underwriters' obligations cannot be
fulfilled, Bank agrees to reimburse the Underwriters severally, or such
Underwriter which has so terminated this Agreement with respect to itself,
for all out-of-pocket expenses (including the fees and expenses of their
outside counsel) reasonably incurred by such Underwriter(s) in connection
with this Agreement or the offering contemplated thereunder.
13. Any action by Underwriters hereunder may be taken by the
Representative alone on behalf of Underwriters, and any such action taken
by the Representative alone shall be binding upon Underwriters. All notices
and other communications hereunder shall be in writing and shall be deemed
to have been duly given if mailed, delivered by hand or transmitted by any
standard form of telecommunication. Notices to Underwriters shall be given
to the Representative, c/o X.X. Xxxxxx Securities Inc., 00 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 (Facsimile No.: 212-648-5909), Attention: Syndicate
Desk. Notices to Bank shall be given to it at The Fifth Third Bank, 00
Xxxxxxxx Xxxxxx Xxxxx, Xxxxxxxxxx, Xxxx 00000, Attention: Xxxx Xxxxxxxxxx.
14. This Agreement shall inure to the benefit of and be binding upon
Bank, Underwriters, any controlling persons referred to herein and their
respective successors and assigns. Nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any other person, firm
or corporation any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. No purchaser
of Certificates from any Underwriter shall be deemed to be a successor by
reason merely of such purchase.
15. This Agreement may be signed in counterparts, each of which shall
be an original and all of which together shall constitute one and the same
instrument. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE
CONFLICTS OF LAWS PROVISIONS THEREOF.
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 Bank and Underwriters in
accordance with its terms.
Very truly yours,
THE FIFTH THIRD BANK
By:___________________________________
Name:______________________________
Title:_____________________________
The foregoing Underwriting
Agreement is hereby confirmed
and accepted as of the date
first above written.
X.X. XXXXXX SECURITIES INC.
As Representative of the Underwriters
By:______________________________
Name: ________________________
Title:________________________
SCHEDULE I
UNDERWRITERS
Aggregate Principal Amount
Name of Certificates to be Purchased
---- -------------------------------
Class A Class B
Certificates Certificates
------------ ------------
X.X. Xxxxxx $91,993,000.00 $4,792,000.00
Securities Inc.
Xxxxxxxxx, Xxxxxx & 91,950,000.00 4,700,000.00
Xxxxxxxx Securities
Corporation
Xxxxxxx Xxxxx & Co. 91,950,000.00 4,700,000.00
Salomon Brothers Inc 91,950,000.00 4,700,000.00
------------- ------------
Total $367,843,000.00 $18,892,000.00
=============== ==============
