Exhibit 10.3
EXECUTION COPY
TRANSFER AND SALE AGREEMENT
between
FIFTH THIRD BANK,
A MICHIGAN BANKING CORPORATION,
as Transferor,
and
FIFTH THIRD AUTO FUNDING LLC,
as Purchaser
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 Transferor Conveyed Assets
Section 2.01. Conveyance of Transferor Conveyed
Assets......................3
Section 2.02. The
Closing...................................................4
Article III
Representations and Warranties
Section 3.01. Representations and Warranties of
the Purchaser...............5
Section 3.02. Representations and Warranties of
the Transferor..............6
Article IV
[Reserved]
Article V
Covenants of the Transferor
Section 5.01. Protection of Right, Title and
Interest.......................8
Section 5.02. Other Liens or
Interests......................................9
Section 5.03. Costs and
Expenses............................................9
Section 5.04. Hold
Harmless.................................................9
Article VI
Miscellaneous Provisions
Section 6.01. Obligations of
Transferor....................................10
Section 6.02. Repurchase
Events............................................10
Section 6.03. Purchaser Assignment of
Repurchased Receivables..............10
Section 6.04. Transfer to the
Issuer.......................................10
Section 6.05.
Amendment....................................................11
Section 6.06.
Waivers......................................................12
Section 6.07.
Notices......................................................12
Section 6.08. Costs and
Expenses...........................................12
Section 6.09. Representations of the Transferor
and the Purchaser..........12
Section 6.10. Confidential
Information.....................................12
Section 6.11. Headings and
Cross-References................................13
Section 6.12. GOVERNING
LAW................................................13
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Section 6.13.
Counterparts.................................................13
Section 6.14.
Severability.................................................13
Section 6.15. Further
Assurances...........................................13
Section 6.16. Waiver of
Immunity...........................................13
Section 6.17. Third Party
Beneficiary......................................14
Section 6.18. No
Proceedings...............................................14
Exhibit A
Representations and Warranties with respect to the Receivables
Exhibit B Perfection
Representations, Warranties and Covenants
Schedule I Final Schedule
of Receivables
Schedule II Location of Receivable Files
ii
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This TRANSFER AND SALE AGREEMENT dated as of June 1, 2004, is
between
FIFTH THIRD BANK, a Michigan banking
corporation, as seller (the "Transferor")
and FIFTH THIRD AUTO FUNDING LLC, a
Delaware limited liability company, as
purchaser (the "Purchaser").
RECITALS
WHEREAS, the Transferor has originated or 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
Dealers;
WHEREAS, the Transferor and the Purchaser wish to set forth the
terms
pursuant to which such contracts and loan
notes are to be sold by the
Transferor to the Purchaser;
WHEREAS, the Purchaser 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 Citigroup
Vehicle Securities Inc. (the
"Depositor") pursuant to a Receivables
Purchase Agreement dated as of June 1,
2004 (as amended, restated or otherwise
modified from time to time, the
"Receivables Purchase Agreement");
WHEREAS, the Depositor intends, concurrently with its purchase
pursuant to the Receivables Purchase
Agreement, 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:
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"Agreement" means this Transfer and Sale Agreement, as amended,
restated or otherwise modified from time to
time.
"Receivables" means the Receivables listed on Schedule I to the
Receivables Purchase Agreement (which
Schedule may be in the form of
microfiche or electronic format).
"Sale and Servicing Agreement" has the meaning set forth in the
recitals.
"Schedule of Receivables" means the list of Receivables annexed
to
the Receivables Purchase Agreement 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.
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Article II
Conveyance of Transferor Conveyed Assets
Section 2.01. Conveyance of
Transferor Conveyed Assets.
(a) The
Transferor does hereby sell, transfer, assign, set over and
otherwise convey to the Purchaser on the
Closing Date, without recourse
(subject to the obligations of the
Transferor set forth herein) all right,
title, and interest of the Transferor 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;
(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 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
(viii) the proceeds of any and all of the foregoing
(collectively, with the assets listed in clauses (i) through
(vii)
above, the "Transferor Conveyed Assets").
In consideration of the transfer of the Transferor Conveyed Assets
to
the Purchaser on the Closing Date, the
Purchaser shall pay in cash on such
date an amount equal to $756,315,722.
(b) The
Transferor and the Purchaser intend that the transfer of
assets by the Transferor to the Purchaser
pursuant to this Agreement be a sale
of the ownership interest in such assets to
the Purchaser (for all non-tax
purposes), rather than the mere granting of
a security interest to secure a
borrowing and in furtherance thereof:
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(i) the
Transferor and the Purchaser 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 Transferor
Conveyed Assets shall be deemed to no
longer be the property, assets or rights of the Transferor; the
Transferor, its creditors, or, in any Insolvency Proceeding
with
respect to the Transferor or the Transferor'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 Transferor, in whole or in
part,
the Transferor Conveyed Assets;
(iii) in
the event of an Insolvency Proceeding with respect
to the Transferor or the Transferor's property, such Transferor
Conveyed Assets shall not be deemed to be part of the
Transferor's
property, assets, rights or estate; and
(iv)
the parties hereto intend that (A) the FDIC Rule shall
apply to the transactions contemplated by this Agreement and
the
other Basic Documents and (B) the transactions contemplated by
this
Agreement and the other Basic Documents, taken as a whole,
constitute a "securitization" within the meaning of the FDIC
Rule.
(c) In the event that the
transfer of assets by the Transferor to
the Purchaser 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 Transferor hereby grants to the
Purchaser a security interest in all of
the Transferor's right, title and interest
in, to and under, whether now owned
or existing or hereafter acquired or
arising, the Transferor 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 Receivables Purchase Agreement and Section 6.04
hereof, the Purchaser may sell, transfer
and assign to the Depositor (i) all
or any portion of the Transferor Conveyed
Assets assigned to the Purchaser
hereunder, (ii) all or any portion of the
Purchaser's rights against the
Transferor under this Agreement and (iii)
all proceeds thereof. Such
assignment may be made by the Purchaser
with or without an assignment by the
Purchaser of its rights under this
Agreement, and without further notice to or
acknowledgement from the Transferor. The
Transferor 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
Purchaser or any assignee of the Purchaser
relating to such action by the
Purchaser in connection with the
transactions contemplated by the Receivables
Purchase 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
Transferor Conveyed Assets to the
Transferor.
Section 2.02. The Closing.
The sale and purchase of the Transferor 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
Receivables Purchase Agreement, the Sale
and Servicing Agreement and the
Indenture.
Article III
Representations and Warranties
Section 3.01. Representations
and Warranties of the Purchaser.
The Purchaser hereby represents and warrants as follows to the
Transferor as of the date hereof and the
Closing Date:
(a)
Organization and Good Standing. The Purchaser is duly organized
and validly existing as a limited liability
company in good standing under the
laws of the State of Delaware, with the
limited liability company 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 Purchaser is duly qualified to do
business as a foreign limited liability
company 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 Purchaser's ability
to acquire the Receivables or the validity
or enforceability of the
Receivables.
(c) Power
and Authority. The Purchaser has the limited liability
company 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
Purchaser by all necessary limited
liability company action.
(d)
Binding Obligation. This Agreement and the other Basic
Documents to which it is a party, when duly
executed and delivered by the
Transferor, shall constitute legal, valid
and binding obligations of the
Purchaser, enforceable against the
Purchaser 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 Purchaser, or any indenture,
agreement or other instrument to
which the Purchaser 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 Purchaser of any court
or federal or state regulatory body,
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administrative agency or other governmental
instrumentality having
jurisdiction over the Purchaser.
(f)
No
Proceedings. There are no proceedings or investigations
pending or, to the Purchaser's knowledge,
threatened against the Purchaser
before any court, regulatory body,
administrative agency or other tribunal or
governmental instrumentality having
jurisdiction over the Purchaser or its
properties (i) asserting the invalidity of
this Agreement or any other Basic
Document to which the Purchaser 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 Purchaser
is a party or (iii) seeking any
determination or ruling that would
materially and adversely affect the
performance by the Purchaser of its
obligations under, or the validity or
enforceability of, this Agreement or any
other Basic Document to which the
Purchaser is a party.
(g) No
Consents. The Purchaser 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
Purchaser is a party, that has not already
been obtained.
Section 3.02. Representations
and Warranties of the Transferor.
The Transferor hereby represents and warrants as follows to the
Purchaser as of the date hereof and as of
the Closing Date:
(a)
Organization and Good Standing. The Transferor is a banking
corporation duly organized, validly
existing and in good standing under the
laws of the State of Michigan and has, in
all material respects, the corporate
power to own its assets and to transact the
business in which it is currently
engaged. The Transferor is an insured
depository institution under the
provisions of the Federal Deposit Insurance
Act, 12 U.S.C. Sections 1811-1831,
and the Transferor's status as an insured
depository institution has not been
terminated under the provisions of Section
8 of the Federal Deposit Insurance
Act, 12 U.S.C. Section 1818. The Transferor
is duly qualified to do business
as a foreign corporation, 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
Transferor to perform its obligations
under, the Basic Documents or affect the
enforceability or collectibility of
the Receivables or any other Transferor
Conveyed Assets (other than a de
minimis portion thereof). The Transferor
has, and at all relevant times had,
the power, authority and legal right to
acquire and own the Receivables.
(b) Power
and Authority. The Transferor has the power and authority
to execute and deliver this Agreement and
the other Basic Documents to which
the Transferor is a party and to carry out
their respective terms, and has
taken all necessary corporate action to
authorize the execution, delivery and
performance of this Agreement and the other
Basic Documents to which the
Transferor is a party. When executed and
delivered, this Agreement and the
other Basic Documents to which the
Transferor is a party will constitute
legal, valid and binding obligations of the
Transferor enforceable in
accordance with their respective terms,
except as enforcement of such terms
may be limited by bankruptcy, insolvency,
reorganization
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or similar laws affecting the enforcement
of creditors' rights generally and
to general principles of equity whether
applied in a proceeding in equity or
at law and by the rights and powers of the
Federal Deposit Insurance
Corporation and the Office of the
Comptroller of the Currency.
(c) No
Violation. The consummation of the transactions contemplated
by this Agreement and the other Basic
Documents to which the Transferor 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 Transferor, or any material
indenture, agreement, mortgage, deed of
trust or other instrument to which the
Transferor 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 Transferor's ability to perform its
obligations under, the Basic
Documents), or violate any law, order,
agreement, rule or regulation
applicable to the Transferor of any court
or federal or state regulatory body,
administrative agency or other governmental
instrumentality having
jurisdiction over the Transferor or any of
its properties.
(d) No
Proceedings. There are no legal or governmental proceedings
or investigations pending or, to the
Transferor's knowledge, threatened
against the Transferor before any court,
regulatory body, administrative
agency or other tribunal or governmental
instrumentality having jurisdiction
over the Transferor or its properties (i)
asserting the invalidity of this
Agreement or any other Basic Document to
which the Transferor 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 Transferor is a party
or (iii) seeking any determination or
ruling that would materially and
adversely affect the performance by the
Transferor of its obligations under,
or the validity or enforceability of, this
Agreement or any other Basic
Document to which the Transferor is a
party.
(e) No
Consents. The Transferor 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
Transferor to perform its obligations under
the Basic Documents.
(f) No
Notice. The Transferor represents and warrants that it
acquired title to the Receivables in good
faith, without notice of any adverse
claim.
(g)
Computer Files Marked. The Transferor has, on or prior to the
Closing Date, clearly and unambiguously
indicated or caused to be indicated in
the computer files of the
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Transferor, the Servicer and any other
applicable Bank that the Receivables
have been sold to the Purchaser, the
Depositor or the Issuer (as applicable).
(h) The
Receivables. The Transferor makes the representations and
warranties set forth on Exhibit A with
respect to the Receivables, on which
the Purchaser relies in accepting the
Receivables and in transferring the
Receivables to the Depositor under the
Receivables Purchase Agreement, on
which the Depositor relies in accepting and
transferring the same to the
Issuer under the Sale and Servicing
Agreement, and on which the Issuer relies
in pledging the same to the Indenture
Trustee. Such representations and
warranties speak as of the Closing Date, or
if so specified therein, as of the
Cutoff Date, but shall survive the sale,
transfer and assignment of the
Receivables to the Purchaser, the
subsequent sale, transfer and assignment of
the Receivables by the Purchaser to the
Depositor pursuant to the Receivables
Purchase Agreement, the subsequent sale,
transfer and assignment of the
Receivables by the Depositor to the Issuer
pursuant to the Sale and Serv
