Exhibit 10.2
EXECUTION COPY
RECEIVABLES PURCHASE AGREEMENT
between
FIFTH THIRD AUTO FUNDING LLC,
as Seller,
and
CITIGROUP VEHICLE SECURITIES INC.,
as Depositor
Dated as of June 1, 2004
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Table of Contents
Page
Article I
Definitions and Interpretation
Section 1.01. Capitalized
terms.............................................1
Section 1.02. Other Definitional and
Interpretive Provisions................2
Article II
Conveyance of Seller Conveyed Assets
Section 2.01. Conveyance of Seller Conveyed
Assets..........................2
Section 2.02. The
Closing...................................................4
Article III
Representations and Warranties
Section 3.01. Representations and Warranties of
the Depositor...............5
Section 3.02. Representations and Warranties of
the Seller..................6
Article IV
[Reserved]
Article V
Covenants of the Seller
Section 5.01. Protection of Right, Title and
Interest.......................8
Section 5.02. Other Liens or
Interests......................................8
Section 5.03. Costs and
Expenses............................................9
Article VI
Miscellaneous Provisions
Section 6.01. Obligations of
Seller.........................................9
Section 6.02. Repurchase
Events.............................................9
Section 6.03. Depositor Assignment of
Repurchased Receivables...............9
Section 6.04. Transfer to the
Issuer.......................................10
Section 6.05.
Amendment....................................................10
Section 6.06.
Waivers......................................................11
Section 6.07.
Notices......................................................11
Section 6.08. Costs and
Expenses...........................................11
Section 6.09. Representations of the Seller and
the Depositor..............11
Section 6.10. Confidential
Information.....................................12
Section 6.11. Headings and
Cross-References................................12
Section 6.12. GOVERNING
LAW................................................12
Section 6.13.
Counterparts.................................................12
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Section 6.14.
Severability.................................................12
Section 6.15. Further
Assurances...........................................12
Section 6.16. Waiver of
Immunity...........................................12
Section 6.17. Third Party
Beneficiary......................................13
Section 6.18. No
Proceedings...............................................13
Exhibit A
Representations and Warranties with respect to the Receivables
Exhibit B
Representations, Warranties and Covenants related to Security
Interest Matters
Schedule I Final Schedule
of Receivables
ii
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This RECEIVABLES PURCHASE AGREEMENT dated as of June 1, 2004,
is
between FIFTH THIRD AUTO FUNDING LLC, a
Delaware limited liability company,
as seller (the "Seller") and CITIGROUP
VEHICLE SECURITIES INC., a Delaware
corporation, as depositor (the
"Depositor").
RECITALS
WHEREAS, the Seller has purchased certain motor vehicle retail
installment sale contracts and motor
vehicle installment loan notes secured by
new and used automobiles, light duty
trucks, vans, minivans and sport utility
vehicles from Fifth Third Bank, a Michigan
banking corporation ("Fifth Third
(Michigan)");
WHEREAS, the Seller and the Depositor wish to set forth the
terms
pursuant to which such contracts and loan
notes are to be sold by the Seller
to the Depositor;
WHEREAS, the
Depositor intends, concurrently with its purchase
hereunder, to convey all of its right,
title and interest in and to all of
such contracts and loan notes to Fifth
Third Auto Trust 2004-A (the "Issuer")
pursuant to a Sale and Servicing Agreement
dated as of June 1, 2004 (as
amended, restated or otherwise modified
from time to time, the "Sale and
Servicing Agreement"), by and among the
Issuer, the Depositor, the Seller,
Fifth Third Bank, an Ohio banking
corporation, as Servicer, as Administrator
and as Custodian, and The Bank of New York,
a New York banking corporation, as
indenture trustee (the "Indenture
Trustee"); and
WHEREAS, the Issuer intends to pledge all of its right, title
and
interest in and to such contracts and loan
notes to the Indenture Trustee
pursuant to the Indenture dated as of June
1, 2004 (as amended, restated or
otherwise modified from time to time, the
"Indenture"), by and between the
Issuer and the Indenture Trustee.
NOW, THEREFORE, in consideration of the foregoing, other good
and
valuable consideration and the mutual terms
and covenants contained herein,
the parties hereto agree as follows:
Article I
Definitions and Interpretation
Section 1.01.
Capitalized terms.
Capitalized terms used in this Agreement and not otherwise defined
in
this Agreement shall have the meanings
assigned thereto in Section 1.01 of the
Sale and Servicing Agreement. As used in
this Agreement, the following terms
shall, unless the context otherwise
requires, have the following meanings:
"Agreement" means this Receivables Purchase Agreement, as
amended,
restated or otherwise modified from time to
time.
"Receivables" means the Receivables listed on Schedule I hereto
(which Schedule may be in the form of
microfiche or electronic format).
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"Sale and Servicing Agreement" has the meaning set forth in the
recitals.
"Schedule of Receivables" means the list of Receivables annexed
hereto as Schedule I (which Schedule may be
in the form of microfiche or
electronic format).
Section 1.02. Other
Definitional and Interpretive Provisions.
(a) All
terms defined in this Agreement shall have the defined
meanings when used in any certificate or
other document made or delivered
pursuant hereto unless otherwise defined
therein.
(b) As
used in this Agreement and in any certificate or other
document made or delivered pursuant hereto
or thereto, accounting terms not
defined in this Agreement or in any such
certificate or other document, and
accounting terms partly defined in this
Agreement or in any such certificate
or other document to the extent not
defined, shall have the respective
meanings given to them under GAAP. To the
extent that the definitions of
accounting terms in this Agreement or in
any such certificate or other
document are inconsistent with the meanings
of such terms under GAAP, the
definitions contained in this Agreement or
in any such certificate or other
document shall control.
(c) The
words "hereof," "herein," "hereunder" and words of similar
import when used in this Agreement shall
refer to this Agreement as a whole
and not to any particular provision of this
Agreement; Section and Exhibit
references contained in this Agreement are
references to Sections and Exhibits
in or to this Agreement unless otherwise
specified; "or" includes "and/or";
and the term "including" shall mean
"including without limitation".
(d) The
definitions contained in this Agreement are applicable to
the singular and plural forms of such terms
and to the masculine, feminine and
neuter genders of such terms.
(e) Any
agreement, instrument, rule, regulation or statute defined
or referred to herein or in any instrument
or certificate delivered in
connection herewith means such agreement,
instrument, rule, regulation or
statute as from time to time amended,
restated, modified or supplemented and
includes (in the case of agreements or
instruments) references to all
attachments thereto and instruments
incorporated therein; references to a
Person are also to its permitted successors
and assigns.
Article II
Conveyance of Seller Conveyed Assets
Section 2.01.
Conveyance of Seller Conveyed Assets.
(a) In
consideration of the Depositor's delivery to or upon the
order of the Seller on the Closing Date of
(i) $714,782,619.55 in same day
funds, minus an expense reimbursement
amount of $90,986 (the "Expense
Reimbursement Amount"), (ii) $20,625,000 in
aggregate principal amount of
Class B Notes and (iii) the Certificates
(collectively, the "Purchase Price"),
the Seller does hereby sell, transfer,
assign, set over and otherwise convey
to the
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Depositor on the Closing Date, without
recourse (subject to the obligations of
the Seller set forth herein) all right,
title, and interest of the Seller in
and to:
(i) the Receivables and all monies received thereon after the
Cutoff Date;
(ii) the security interests in the Financed Vehicles and any
accessions thereto granted by the related Obligors pursuant to
the
Receivables and any other interest of the Banks in such
Financed
Vehicles;
(iii) any Liquidation Proceeds and any other proceeds with
respect to the Receivables from any extended warranty, theft
and
physical damage, credit life, disability or other insurance
policy
covering Receivables, Financed Vehicles or Obligors, including
any
vendor's single interest or other collateral protection
insurance
policy and Fifth Third GAP protection;
(iv) any property that shall have secured a Receivable and that
shall have been acquired by or on behalf of the Banks or the
Seller;
(v) all documents and other items contained in the Receivable
Files;
(vi) all proceeds from any Receivable purchased or repurchased
by a Dealer pursuant to a Dealer Agreement;
(vii) all of the Seller's rights (but none of its obligations)
under the Transfer and Sale Agreement;
(viii) all accounts, money, chattel paper, securities,
instruments, documents, deposit accounts, certificates of
deposit,
letters of credit, advices of credit, banker's acceptances,
uncertificated securities, general intangibles, contract
rights,
goods and other property consisting of, arising from or relating
to
any and all of the foregoing; and
(ix) the proceeds of any and all of the foregoing
(collectively, with the assets listed in clauses (i) through
(viii)
above, the "Seller Conveyed Assets").
The Expense Reimbursement Amount shall reimburse the Depositor
for
the Depositor's Securities and Exchange
Commission registration statement fees
and the Depositor's registration statement
administration fees allocable to
the Trust. The Seller shall pay, and be
billed directly for, all reasonable
expenses incurred by the Depositor in
connection with the issuance of the
Notes and the Certificates, including
printing fees incurred in connection
with the prospectus relating to the Notes,
blue sky registration fees and
expenses, fees and expenses of Depositor's
counsel, fees of the Rating
Agencies, applicable accountant's fees and
expenses and the fees and expenses
of the Indenture Trustee, the Owner Trustee
and their respective counsel and
other out-of-pocket costs, if any. If the
Depositor shall determine that the
Expense Reimbursement Amount is not
sufficient to reimburse the Depositor for
all expenses incurred by it that are
subject to reimbursement by the Seller
hereunder as described above, the Seller
shall promptly reimburse the
Depositor for such additional amounts upon
notice by the Depositor to the
Seller.
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(b)
The Seller and the Depositor intend that the transfer of assets
by the Seller to the Depositor pursuant to
this Agreement be a sale of the
ownership interest in such assets to the
Depositor (for all non-tax purposes),
rather than the mere granting of a security
interest to secure a borrowing and
in furtherance thereof:
(i) the Seller and the Depositor shall record each such
transfer as a sale or purchase (as the case may be) on its books
and
records for legal purposes;
(ii) the Seller Conveyed Assets shall be deemed to no longer be
the property, assets or rights of the Seller; the Seller, its
creditors, or, in any Insolvency Proceeding with respect to the
Seller or the Seller's property, a bankruptcy trustee,
conservator,
receiver, debtor, debtor in possession or similar person, shall
have
no rights, legal or equitable, whatsoever to reacquire,
reclaim,
recover, repudiate, disaffirm, redeem or recharacterize as
property
of the Seller, in whole or in part, the Seller Conveyed Assets;
and
(iii) in the event of an Insolvency Proceeding with respect to
the Seller or the Seller's property, such Seller Conveyed
Assets
shall not be deemed to be part of the Seller's property,
assets,
rights or estate.
(c) In the
event that the transfer of assets by the Seller to the
Depositor pursuant to this Agreement is
deemed not to be a sale (for non-tax
purposes) but to be of a mere security
interest to secure a borrowing, the
Seller hereby grants to the Depositor a
security interest in all of the
Seller's right, title and interest in, to
and under, whether now owned or
existing or hereafter acquired or arising,
the Seller Conveyed Assets which
security interest shall be perfected and of
first priority, and this Agreement
shall constitute a security agreement under
applicable law.
(d)
Pursuant to the Sale and Servicing Agreement and Section 6.04
hereof, the Depositor may sell, transfer
and assign to the Issuer (i) all or
any portion of the Seller Conveyed Assets
assigned to the Depositor hereunder,
(ii) all or any portion of the Depositor's
rights against the Seller under
this Agreement and (iii) all proceeds
thereof. Such assignment may be made by
the Depositor with or without an assignment
by the Depositor of its rights
under this Agreement, and without further
notice to or acknowledgement from
the Seller. The Seller waives, to the
extent permitted under applicable law,
all claims, causes of action and remedies,
whether legal or equitable
(including any right of setoff), against
the Depositor or any assignee of the
Depositor relating to such action by the
Depositor in connection with the
transactions contemplated by the Sale and
Servicing Agreement. Notwithstanding
anything herein to the contrary, nothing in
this Section shall limit any
contractual rights in this Agreement or any
other document executed in
connection with this Agreement that require
or permit the transfer or return
of the Seller Conveyed Assets to the
Seller.
Section 2.02. The
Closing.
The sale and purchase of the Seller Conveyed Assets shall take
place
at a closing at the offices of Sidley
Austin Brown & Wood LLP, 787 Seventh
Avenue, New York, New York
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10019 on the Closing Date, simultaneously
with the closing under the Transfer
and Sale Agreement, the Sale and Servicing
Agreement and the Indenture.
Article III
Representations and Warranties
Section 3.01.
Representations and Warranties of the Depositor.
The Depositor hereby represents and warrants as follows to the
Seller as of the date hereof and the
Closing Date:
(a)
Organization and Good Standing. The Depositor is duly organized
and validly existing as a corporation in
good standing under the laws of the
State of Delaware, with the corporate power
and authority to own its
properties and to conduct its business as
such properties are currently owned
and such business is currently
conducted.
(b) Due
Qualification. The Depositor is duly qualified to do
business as a foreign corporation in good
standing, and has obtained all
necessary licenses and approvals in all
jurisdictions where the failure to do
so would materially and adversely affect
the Depositor's ability to acquire
the Receivables or the validity or
enforceability of the Receivables.
(c) Power
and Authority. The Depositor has the corporate power and
authority to execute, deliver and perform
this Agreement and the other Basic
Documents to which it is a party and to
carry out its terms; and the
execution, delivery and performance of this
Agreement and the other Basic
Documents to which it is a party have been
duly authorized by the Depositor by
all necessary corporate action.
(d)
Binding Obligation. This Agreement and the other Basic
Documents to which it is a party, when duly
executed and delivered by the
Seller, shall constitute legal, valid and
binding obligations of the
Depositor, enforceable against the
Depositor in accordance with their
respective terms, except as the
enforceability thereof may be limited by
bankruptcy, insolvency, reorganization or
similar laws now or hereafter in
effect relating to or affecting creditors'
rights generally and to general
principles of equity (whether applied in a
proceeding at law or in equity).
(e) No
Violation. The consummation of the transactions contemplated
by this Agreement and the other Basic
Documents to which it is a party and the
fulfillment of the terms hereof and thereof
do not conflict with, result in
any breach of any of the terms and
provisions of, or constitute (with or
without notice or lapse of time or both) a
default under, the charter or
bylaws of the Depositor, or any indenture,
agreement or other instrument to
which the Depositor is a party or by which
it is bound; or result in the
creation or imposition of any Lien upon any
of its properties pursuant to the
terms of any such indenture, agreement,
mortgage, deed of trust or other
instrument, other than this Agreement and
the other Basic Documents; or
violate any law, rules or regulation
applicable to the Depositor of any court
or federal or state regulatory body,
administrative agency or other
governmental instrumentality having
jurisdiction over the Depositor.
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(f) No
Proceedings. There are no proceedings or investigations
pending or, to the Depositor's knowledge,
threatened against the Depositor
before any court, regulatory body,
administrative agency or other tribunal or
governmental instrumentality having
jurisdiction over the Depositor or its
properties (i) asserting the invalidity of
this Agreement or any other Basic
Document to which the Depositor is a party,
(ii) seeking to prevent the
consummation of any of the transactions
contemplated by this Agreement or any
other Basic Document to which the Depositor
is a party or (iii) seeking any
determination or ruling that would
materially and adversely affect the
performance by the Depositor of its
obligations under, or the validity or
enforceability of, this Agreement or any
other Basic Document to which the
Depositor is a party.
(g) No
Consents. The Depositor is not required to obtain the
consent of any other party or any consent,
license, approval, registration,
authorization, or declaration of or with
any governmental authority, bureau or
agency in connection with the execution,
delivery, performance, validity, or
enforceability of this Agreement or any
other Basic Document to which the
Depositor is a party, that has not already
been obtained.
Section 3.02.
Representations and Warranties of the Seller.
The Seller hereby represents and warrants as follows to the
Depositor
as of the date hereof and as of the Closing
Date:
(a)
Organization and Good Standing. The Seller has been duly
organized and is validly existing as a
limited liability company in good
standing under the laws of the State of
Delaware, and has, in all material
respects, the power to own its assets and
to transact the business in which it
is currently engaged. The Seller is duly
qualified to do business as a foreign
limited liability company, has obtained all
necessary licenses and approvals
and is in good standing in each
jurisdiction where the failure to be so
authorized would materially and adversely
affect the validity and
enforceability of, or the ability of the
Seller to perform its obligations
under, the Basic Documents or affect the
enforceability or collectibility of
the Receivables or any other Seller
Conveyed Assets (other than a de minimis
portion thereof).
(b) Power
and Authority. The Seller has the power and authority to
make, execute and deliver this Agreement
and the other Basic Documents to
which the Seller is a party and to carry
out their respective terms, and has
taken all necessary limited liability
company action to authorize the
execution, delivery and performance of this
Agreement and the other Basic
Documents to which the Seller is a party.
When executed and delivered, this
Agreement and the other Basic Documents to
which the Seller is a party will
constitute legal, valid and binding
obligations of the Seller enforceable in
accordance with their respective terms,
except as enforcement of such terms
may be limited by bankruptcy, insolvency,
reorganization or similar laws
affecting the enforcement of creditors'
rights generally and by the
availability of equitable remedies.
(c) No
Violation. The consummation of the transactions contemplated
by this Agreement and the other Basic
Documents to which the Seller is a party
and the fulfillment of their respective
terms shall not conflict with, result
in any breach of any of the terms and
provisions of, or constitute (with or
without notice or lapse of time or both) a
default under, the certificate of
incorporation or bylaws of the Seller, or
any material indenture, agreement,
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mortgage, deed of trust or other instrument
to which the Seller is a party or
by which it is bound; or result in the
creation or imposition of any Lien upon
any of its properties pursuant to the terms
of any such indenture, agreement,
mortgage, deed of trust or other
instrument, other than this Agreement and the
other Basic Documents (other than
conflicts, breaches or Liens which do not
affect the legality, validity or
enforceability of any of the Basic Documents
and which, individually or in the
aggregate, would not materially and
adversely affect the transactions
contemplated by, or the Seller's ability to
perform its obligations under, the Basic
Documents), or violate any law,
order, agreement, rule or regulation
applicable to the Seller of any court or
federal or state regulatory body,
administrative agency or other governmental
instrumentality having jurisdiction over
the Seller or any of its properties.
(d) No
Proceedings. There are no legal or governmental proceedings
or investigations pending or, to the
Seller's knowledge, threatened against
the Seller before any court, regulatory
body, administrative agency or other
tribunal or governmental instrumentality
having jurisdiction over the Seller
or its properties (i) asserting the
invalidity of this Agreement or any other
Basic Document to which the Seller is a
party, (ii) seeking to prevent the
consummation of any of the transactions
contemplated by this Agreement or any
other Basic Document to which the Seller is
a party or (iii) seeking any
determination or ruling that would
materially and adversely affect the
performance by the Seller of its
obligations under, or the validity or
enforceability of, this Agreement or any
other Basic Document to which the
Seller is a party.
(e) No
Consents. The Seller is not required to obtain the consent
of any other party or any consent, license,
approval, registration,
authorization, or declaration of or with
any governmental authority, bureau or
agency in connection with the execution,
delivery, performance, validity, or
enforceability of this Agreement or any
other Basic Document to which it is a
party, other than (i) UCC filings, (ii)
approvals and authorizations that have
previously been obtained and filings that
have previously been made and (iii)
approvals, authorizations or filings that,
if not obtained or made, would not
have a material adverse effect on the
enforceability or collectibility of the
Receivables and would not have a material
adverse effect on the ability of the
Seller to perform its obligations under the
Basic Documents.
(f) No
Notice. The Seller represents and warrants that it acquired
title to the Receivables in good faith,
without notice of any adverse claim.
(g)
Computer Files Marked. The Seller has, on or prior to the
Closing Date, clearly and unambiguously
indicated or caused to be indicated in
the computer files of the Seller, the
Transferor, the Servicer and any other
applicable Bank that the Receivables have
been sold to the Depositor pursuant
to this Agreement.
(h) The
Receivables. The Seller makes the representations and
warranties set forth on Exhibit A with
